Written evidence submitted by the Local Government and Social Care Ombudsman to the Select Committee on the Armed Forces Bill

Executive Summary

1. The LGSCO is the last port of call for complaints about the actions of local authorities and adult social care providers in England. We have over 40 years’ experience of remedying injustice. We can make recommendations for both personal remedies and service improvements. As a free service that is open to all, we play a very important role in providing individual redress and helping to improve services when something has gone wrong.

2. Our decisions are not binding but our recommendations are implemented in over 99% of cases. The few bodies within our jurisdiction that do not immediately implement our recommendations do so after follow-up from the Ombudsman.

3. We share learning from our complaints to help improve local services. We publish all our decisions online and share thematic reports to encourage local authorities to learn from our decisions. As part of our role, we have also produced our own guidance for local authorities on the Armed Forces Covenant.

4. We can already look at complaints relating to the Armed Forces Covenant and have been investigating such complaints since 2015. Our response therefore focusses on the proposals relating to the Armed Forces Covenant in the Bill.

5. We are broadly supportive of the proposals to enshrine the Armed Forces Covenant in law and view them as potentially having the positive effect of both increasing awareness of the covenant with current and previous members of the armed forces, and increasing compliance by local authorities.

6. We consider a lack of awareness of, or signposting to, our service as a potentially serious barrier to redress. However, this can be remedied through provisions for mandatory signposting to our service within statutory guidance or elsewhere.

7. Armed Forces Covenant complaints make up a comparatively small proportion of the complaints we receive. We have made decisions on 36 cases since 2015. We therefore do not envisage a significant increase in cases coming to us as a result of the changes and one which could be managed with a modest resource increase.

8. We have concerns about the lack of inclusion of adult social care in the proposals. Many current or previous members of the armed forces and their families will have adult social care needs which are as important as, and interconnected with, their health needs.

9. We welcome the announcement that there will be statutory guidance on this topic and would want the chance to be as involved in the drafting of this as possible, to ensure the role of the ombudsman, and the importance of the local complaints process, are embedded within the guidance.

LGSCO Armed Forces Covenant cases

10. We have made decisions on a total of 36 cases where the Armed Forces Covenant has featured since 2015. This is therefore a relatively low area of enquiry for us.

11. However, it is worth bearing in mind that cases will only be recorded by us as relating to the Armed Forces Covenant if this has been referenced in the original complaint by either the complainant or the local authority. This therefore relies on a level of awareness about the Armed Forces Covenant within local authorities and from those that may be affected by it.

12. Below is a summary of our complaints and the issues they cover:

Topic	Number of complaints	Case references
School transport	8	16 003 462; 15 016 859; 15 016 868; 15 016 874; 15 016 932; 15 016 937; 15 016 976; 14 009 771
School admissions	6	18 006 747; 17 017 516; 16 019 001; 16 011 985; 15 009 848; 15 002 926
Mental health services	3	16 000 641; 16 000 644; 16 000 730
Homelessness	3	17 018 192; 17 013 855; 16 008 707
Housing allocations	3	17 002 497; 16 013 919; 15 008 876
Housing benefit and council tax	3	17 004 200; 15 019 242; 20 001 419
Council tax	3	18 013 585, 15 010 651, 19 008 319
Parking and other penalties	3	18 016 440; 15 020 350; 19 020 303
Alcohol and drug services	1	15 020 778
Transport; blue badges	1	16 000 434
Elections and electoral register	1	15 002 137
Leisure and culture	1	16 005 779

13. We receive the most complaints about schools (transport and admissions), followed by housing (homelessness and housing allocations). The area where we are upholding the most enquiries is in school transport. However, with regards to school transport, the majority of these cases are separate complaints against Essex County Council over the same time period. This information should therefore be considered in this light.

14. Of the above cases 17 were upheld, 14 were not upheld, and five were closed after initial enquiries. This gives an uphold rate of 55% which is slightly below our overall uphold rate of 62%.

15. A good example of how our investigations can make an impact is an investigation we carried out into Devon County Council (14 009 771)[1]. Although this case is from 2015, it gives a good idea of what we can achieve for members of the armed forces and their families.

Overview of complaint: A couple complained that the council wrongly decided to discontinue school transport after the family were forced to move. They say the school transport appeal did not take account of all relevant information in deciding not to uphold their appeal.

Mr J serves in the armed forces. He and his wife have a son, S, and a daughter, D, in

primary school. When Mr J was transferred to Devon, the Council provided transport for S and D to the nearest available school. But Mr and Mrs J had to move to another forces property because damp in their first home was seriously affecting S’s health, which was already compromised by ongoing treatment for cancer.

When the family moved, the Council discontinued school transport because places were

available for both children at a nearer school within walking distance. Mr and Mrs J appealed against the decision to discontinue school transport for both children. They said S’s education had already been disrupted by his illness, his consultant advised he should stay put, and both children needed to be at the same school. Mr and Mrs J’s appeal was unsuccessful so they approached the LGO.

Our findings: The Ombudsman upheld the complaint and found fault causing injustice.

We found that the Council, and the appeal panels, did not properly consider:

a. The Council’s policy on providing school transport following a temporary house move

b. The long-term sustainability of alternative transport arranged, or paid for, by Mr and Mrs J

c. The armed forces’ covenant.

If the Council had properly considered these matters, it is more likely than not that it would

have continued to provide transport to School 1 for both children, after the family had moved house. This is because each issue on its own provides justification for continuing transport, so the combination of issues is a strong one.

Because of these faults, Mr and Mrs J have incurred transport costs and breakfast club
costs which they estimate to be £1,000. They have also had two appeal hearings, and had to make sometimes complicated arrangements to get S and D to and from school. This amounts to significant avoidable stress during what was already a difficult time, because of S’s illness and treatment, and the enforced house move. This stress has lasted for almost two terms.

As part of our investigation we asked the Council how the community Armed Forces Covenant was reflected in its school transport policy. The Council said:

‘The Council’s understanding is that the Armed Forces Covenant is reflective of a promise made by the government to ensure that the armed forces face no disadvantage as a result of their service. I do not believe that the family has been disadvantaged over other families through the application of the home to school transport policy – a non forces family with the same circumstances would have been treated in the same manner.’

However, our investigation found that this interpretation was not correct. Mr and Mrs J moved house because the accommodation originally provided by the armed forces was hazardous to S’s health. And the location of their new home was determined by the armed forces. So it is only because of Mr J’s service in the armed forces that his children no longer qualify for transport to a school in which they are settled. This unnecessary disruption to the continuity of their education is precisely the sort of disadvantage the Armed Forces Covenant seeks to remove.

Recommendations:

We made the following recommendations to remedy the injustice:

The council should:

apologise to the couple;
put in place home-school transport for the couple's daughter as soon as possible;
pay the couple £1,000 to reimburse the costs they incurred as a result of the council's faults; and
pay the couple a further £1,000 to acknowledge the avoidable stress the council's faults caused the family.

The Council has also confirmed that it is taking the following steps to improve its practice:

a. It is committed to raising the profile of the expectations set out in the Armed Forces Covenant. In particular, it is reviewing its school transport policy to make sure officers and panels identify at an early stage if the Covenant is relevant to an application.

b. The review of the school transport policy will also include amending the wording to clearly invite parents to identify if their circumstances are similar to the ‘exceptions’ listed in the policy. The policy will also stress that the examples offered are examples and not a definitive list.

c. The Council will amend the school transport appeal forms to ask parents to highlight any issues about the sustainability of existing travel arrangements.

LGSCO comments on the proposals

16. The LGSCO is broadly supportive of the proposal to enshrine the Armed Forces Covenant into law. If it were to be enshrined in law, we would be holding local authorities to account against a statutory requirement. We would therefore be making a judgement as to whether or not the council had followed the law. This would potentially give us a clearer steer on what is expected from local authorities, and potentially make it easier to identify fault. This may in turn increase our uphold rate for these complaints.

17. Enshrining the Covenant into law would also potentially increase awareness of it, which may increase the number of complaints that come to us and local authorities. We would view this as a positive development, as there is currently the potential for unmet need.

18. However, we do not envisage the proposals will have a large impact on our casework. They may increase awareness of the Covenant and therefore the number of complaints we receive, which would require a modest increase in resources. However, the number of complaints we receive is currently very low in comparison with other areas. In addition, all local authorities are currently signed up to the covenant, therefore it should already be largely reflected in our work. In particular, we don’t expect any increase to be significant in the context of our overall complaints and the challenges brought by the Covid-19 pandemic.

19. We are, however, concerned that forces families may not be aware of their right to complain to the ombudsman. A lack of awareness and signposting to our service presents a real risk to accessing redress. One opportunity in the new legislation might therefore be to make explicit reference to the right of serving members, veterans and forces families to bring complaints about non-compliance to the relevant ombudsman. In addition, a statutory duty for local authorities to signpost to us at the end of any first tier complaints process may also be a desirable addition. Mandatory signposting already exists for the Northern Ireland Public Services Ombudsman, so this addition may help to bring parity to the complaints process across Ombudsman services in the UK.

20. We understand that statutory guidance will be written to support the proposals. We would expect to be consulted extensively on this. Our experience of using guidance in our casework shows us that clear and comprehensive guidance is essential. We think any statutory guidance should at minimum include the following:

A clear explanation of the local complaints process and the process of escalating to the relevant ombudsman service
A clear duty on local authorities to explain to individuals what their rights to redress are
A specific mandatory requirement for local authorities to signpost to the relevant ombudsman scheme at the end of any first tier complaints process.

21. We note the proposals are designed to cover those areas that are most relevant for the armed forces. However, they do not currently cover adult social care. Many current and former members of the armed forces will have complex health and social care needs, which will be closely linked. Our experience of our Joint Working cases with the PHSO is that health and social care services are often jointly delivered by a single body – especially with Adult Mental Health Services. This means the separation between health and social care is often blurred, and there therefore may be problems in identifying the aspects of provision which are protected by the Bill, and those which aren’t. In addition, the social care needs of current and former members of the armed forces are no less important that their health needs. This is therefore potentially a missed opportunity, and we would like to see the Bill place social care considerations on a statutory basis alongside health.

22. In addition, we are also concerned that there is the potential for confusion within local authorities as some aspects of the Armed Forces Covenant will be enshrined in law and others not. We would welcome clarification on how this is expected to work in practice and would expect any guidance to cover this point in detail.

23. We hope this evidence and information will be of help to the inquiry and would welcome an opportunity to elaborate on any of the points in our submission.

17th March 2021

Written evidence submitted to the Select Committee on the Armed Forces Bill