| CIRCULAR NO SWSG5/1996 Desk Officer 5389 Replaces: SWSG5/91, Index Ref: F5
March 1996
Chief Executives: Unitary Authorities
Copy to: Chief Executives: Regional and Islands Councils
General Managers: Health Boards
General Manager: Common Services Agency
General Manager: State Hospital
Chief Executives: NHS Trusts
Directors of Social Work: Regional and Island Councils
Directors of Social Work and Chief Social Work Officers:
Unitary Authorities
Appropriate Professional and Voluntary Bodies
Holders of SWSG Guidance Package
Dear Sir/Madam
LOCAL AUTHORITY COMPLAINTS PROCEDURES
Summary
1. Guidance and Directions on the operation of complaints
procedures in respect of social work functions were set out in Circular SW5/1991 of 20
February 1991. My letter of 30 June 1995 set out proposals to improve the procedures.
Following thorough consideration of the comments on these proposals Annex A to this
circular identifies changes which are required to improve the original procedures. Annex B
contains the guidance in SW5/1991 amended as set out in Annex A. Annex C is the new
Directions.
Action
2. This circular revokes SW5/1991. Authorities should make
arrangements to implement the Directions set out in Annex C by 1 April 1996. They should
take full account of the guidance provided in Annex B.
Authorities must inform Social Work Services Group by 31
May about the organisational arrangements established for complaints review committees
(see paragraph 43 of Annex B) and provide contact details for a senior officer with
responsibility for the complaints procedures (see paragraph 17 of Annex B).
Contact Point
3. Any enquiries about the terms of this circular or
requests for advice should be directed to Mr Neil Rennick, Room 48c, at the above address
or by telephone (0131 244 5389) [ To holders of the SWSG
Circulars and Guidance Package: This Circular should be placed in Section F5 of the volume
containing "F, Community Care (Sections 3-10)" Circulars.] .
Yours faithfully
GAVIN ANDERSON
ANNEX A
THE SOCIAL WORK (REPRESENTATIONS PROCEDURE) (SCOTLAND)
DIRECTIONS 1996
AMENDMENTS AND ADDITIONS TO GUIDANCE NOTES
1. The purpose of this guidance is to improve the operation
of complaints procedures and particularly arrangements for Complaints Review Committees
(CRCs). Aspects of the complaints procedure on which revised Directions and guidance have
been considered necessary are set out below with reference to the relevant paragraphs in
the guidance in Annex B.
Complaints Review Committee
2. Complaints procedures should involve 3 stages. In the
first informal problem solving stage, every attempt should be made to mediate and resolve
the complaint. In the second stage unresolved complaints should be formally recorded and
investigated by specially designated staff. Where a complaint is upheld, authorities
should endeavour to resolve the issue amicably. In the final stage the formal Complaints
Review Committee (CRC) should aim to bring an objective and independent eye to bear on
complaints to give the public additional safeguards that their wishes and needs are being
fairly considered and their complaints properly investigated. This requires some element
of objectivity and independence in the membership of CRCs. Complaints should only be
referred to the CRC when all avenues of redress have been explored. The revised Directions
and guidance address aspects of the status, membership and conduct of CRCs:
Status of Reviews and Local Government Reorganisation
3. The Scottish Office is concerned that CRCs should not
develop a degree of formality or inflexibility which might inhibit resolutions being
reached. Annex B provides guidance on the conduct of CRCs. (See paragraphs 39-41).
Guidance is also provided on the status of CRCs with particular reference to the new local
authority structures following the full implementation of local government reorganisation
on 1 April 1996. (See paragraphs 42-43).
4. The question of whether complainers should be present at
reviews, or if a voluntary organisation or other advocate might represent them is also
considered. (See paragraph 46).
Membership, Experience and Training of Review Committees
5. The Social Work Services Inspectorate monitoring report
"18 Months On" published in 1993, reviewed the appointment of independent
persons to CRCs. The criteria used for selecting independent people varied considerably
between authorities as did the process for selection. Some authorities have chosen
professional social work staff from other authorities as their independent persons. Such
persons are independent within the definition of the current Directions, but may not be
seen as independent by complainers or the public at large. They may have a useful
specialist contribution to make to the review process. However, if nominated as
"independent persons", they may be construed as reflecting the interests of the
employment body or the social work profession. Good practice is more likely to be achieved
if more obviously independent persons are nominated. The Directions and guidance address
this. (See paragraph 44).
6. Revised guidance is also provided on the experience and
knowledge which CRC members should have and the importance of on-going training. (See
paragraph 45).
General Issues
7. In addition to guidance on the arrangements for
Complaints Review Committees the revised Directions and associated guidance respond to a
number of more general issues and concerns raised about the operation of the complaints
procedures.
Local Authority Response Times
8. In light of experience and a fuller understanding of the
processes involved, it is now considered unreasonable to deal effectively with complaints
within the times detailed in the original Directions. The attached Directions, therefore,
introduce new time limits by which notification of substantive action must have been made.
(See paragraph 32).
Confidentiality
9. The need to safeguard information that is subject to
confidentiality, whether it relates to the complainer, a member of staff or a third party,
is a vital feature of the complaints procedures. Additional guidance on confidentiality
during the complaints process is provided in Annex B. (See paragraph 34).
Complaints Procedure Eligibility
10. Clarification has been sought on whether people who
have made private arrangements for their care (eg self-financing the care costs in a
private nursing home) and those receiving services from independent organisations under
contract from a local authority are eligible to use the authority’ formal complaints
procedures. This is addressed in the guidance. (See paragraph 55).
Judicial Actions - Postponement of Reviews
11. Concern has been expressed about proceeding with
complaints where the subject of the complaint is being pursued through legal action. The
revised Directions and guidance address this question. (See paragraph 47).
Persistent Complainers and Orchestrated Campaigns
12. Local authorities have expressed concern about the
difficulty of responding to unreasonably persistent complainers and the pressure which
orchestrated campaigns can put on the complaints procedure. Guidance is provided in Annex
B on responding to persistent and multiple representations. (See paragraphs 36-37).
Information to Complainers
13. The provision of information on the operation of the
complaints procedures will assist complainers in being aware of how their complaint will
be considered and will assist them in judging whether they have a sound basis for
complaining. The revised Directions extend the range of information which local
authorities should make available to complainers. (See paragraph 24).
Compensation
14. The question of whether or not compensation should be
offered to complainers where the complaints procedure has found in their favour has been
raised. This is addressed in the guidance. (See paragraph 48).
Publishing Results of Complaints
15. Service users and their carers need to have confidence
in the complaints procedures. Publishing the results of complaints and the action taken
will assist authorities in demonstrating that they deal with complaints seriously and
fairly. Guidance on the publication of the results of complaints is provided in Annex B.
(See paragraph 49).
GUIDANCE ON LOCAL AUTHORITY COMPLAINTS PROCEDURES
INDEX TO ANNEX B
Statutory Background 2
Local Government Reform 7*
Definitions 9
Informal Complaints 10
Subjects Covered by Complaints Procedures 12*
Procedural Arrangements
Key Principles 15
Consultation on Procedures 16
Staff Appointments 17
Complaints to Elected Members 22
Information About Complaining 23*
Complainers
Oral Complaints 27*
Assistance to Complainers 28
Complaints on Behalf of Another Person 29
Local Authority Response Times 32*
Confidentiality 34*
Unreasonably Persistent Complainers 36*
Complaints Campaigns 37*
Review Arrangements - Complaints Review Committees
Role of CRCs 38*
Status of CRCs 39*
Local Government Reform and CRCs 42*
Independent Representation on CRCs 44*
Membership, Experience and Training of CRCs 45*
Complainer Representation on CRCs 46*
Judicial Action - Postponement of Complaints 47*
Compensation 48*
Publishing the Results of Complaints 49*
Monitoring Complaints Procedures 50
Complaints About Services Provided by Third Parties
Services Provided Under Contract to Local Authorities 52
People Self-financing Their Own Care Arrangements 55*
Complaints to the Mental Welfare Commission 56*
Special Cases
Inter-agency Assessments 57
Centrally Funded Criminal Justice Social Work Services 58
Prison-based Social Work Services 59
* Revised guidance additional to that provided in
circular SWSG 05/91
ANNEX B
NATIONAL HEALTH SERVICE AND COMMUNITY CARE ACT 1990
LOCAL AUTHORITIES COMPLAINTS PROCEDURES
Purpose
16. This Annex provides advice to local authorities on the
operation of a complaints procedure in respect of their social work functions. The
guidance amplifies the revised Directions issued by the Secretary of State (attached at
Annex C) and additional matters raised in Annex A.
Statutory Background and Commencement
17. Section 52 of the National Health Service and Community
Care Act 1990 inserted section 5B into the Social Work (Scotland) Act 1968 giving the
Secretary of State powers to require local authorities to establish procedures for
considering complaints with regard to the discharge of their social work functions. The
Social Work (Representations Procedure) (Scotland) Order 1990 (No 2519 (s213)) was made by
the Secretary of State on 8 December 1990 requiring local authorities to establish such
procedure in respect of all their social work functions whether now or in the future,
including those for children.
18. Section 5B provides for complaints to be made by or on
behalf of:
18.1 a person for whom the local authority provides a
service either directly or indirectly;
18.2 a person whose request for such a service has been
refused by the authority;
18.3 other persons whose need or possible need for a
service, which the local authority has a power or a duty to provide, has come to the
authority’s attention.
19. The entitlement of persons to complain or make other
representations on behalf of others is intended to cover, inter alia, the position of
private carers providing care to persons for whom authorities have a power or duty to
provide social work services. (A private carer is defined in section 5A of the 1968 Act,
as inserted by section 52 of the 1990 Act, as a person who provides care which he is not
employed to provide.) An entitlement to complain on behalf of children in care, under
supervision, in receipt of some other social work service or in possible need of such a
service from the local authority, is expressly given to the child’s parents and other
persons mentioned in section 5B(4).
20. The guidance contained in this circular relates to the
Social Work (Representation Procedure) (Scotland) Directions 1996, attached at Annex C,
which revoke the previous Directions issued in 1990. Local authorities should establish
procedures for dealing with complaints within the mandatory framework provided by the
Directions. The guidance does not add to, or detract from the Directions themselves, but
describes the approach which local authorities should follow in giving effect to them.
Complainant’s Rights
21. The existence of the complaints procedure does not
affect any rights an individual might have under Part II of the Local Government
(Scotland) Act 1975. The Local Government Commissioner may therefore investigate a
complaint about local authority maladministration where the complainer is not satisfied
with the conduct or outcome of the authority’s own investigation. He is not, however,
empowered to investigate the policy adopted by a local authority or the merits of any
decision taken by it without evidence of maladministration.
Local Government Reform
22. The new unitary authorities will inherit responsibility
for resolutions of individual complaints on the basis of the geographic location of the
service user at the time to which the complaint relates. Authorities should aim to have as
few unresolved complaints as possible outstanding at 31 March 1996. Where there are
unresolved complaints, the new authorities must make complainers aware of this transfer of
responsibility. Where a continuing complaint is referred to a Complaints Review Committee
after 31 March 1996, the new arrangements set out in this guidance and Directions should
apply. (See paragraph 38).
23. A number of local authorities will already have
established complaints procedures and many social work staff will be experienced in
handling complaints. The arrangements which authorities develop in response to the revised
Directions and guidance should form a natural extension or adaptation of existing
arrangements.
Definitions
24. In this circular:
"complainer" means the person from whom
representations or a complaint is received whether he is acting on his own behalf or on
behalf of another person. The term has legal connotations. It is used in the directions
and has therefore been adopted throughout;
"complaints procedure" refers to the arrangements
authorities make in response to the requirements of section 5B of the Social Work
(Scotland) Act 1968 and directions made by the Secretary of State;
"nominated officer" means the officer responsible
for looking into the complaint in accordance with paragraph 19. The choice of person for
such appointments is considered in that paragraph;
"representations" include complaints and may
relate to matters which do not directly affect the person who makes them ie where they are
made on behalf of someone else. The circular refers in the main to complaints but extends
to other representations as well; for the sake of simplicity, the term
"representations" is not mentioned alongside "complaints" on each
occasion where that term is used in this circular. (The directions and order refer solely
to "representations" which are defined in the directions to include
"complaints");
"social work committee" refers to the committee
established by local authorities with principal responsibility for dealing with social
work matters.
Informal Complaints
25. The procedures which local authorities develop in
response to this circular and Directions will only deal with complaints or other
representations which are made in writing or orally under the terms of paragraph 8 of the
Directions. Local authorities should have in place suitable arrangements for responding to
informal representations as referred to in paragraph 3 of the Directions. Where a person
making a complaint chooses not to take the matter further or shows willingness to have the
matter resolved through informal discussion, such representations should nevertheless be
treated seriously with a record being made of the withdrawal of the complaint or such
other exchanges as may occur.
26. The terms of the directions and of this guidance allow
local authorities a wide measure of discretion in developing procedures which can be
operated flexibly on an administrative basis. General arrangements may require to be
adjusted to fit particular local circumstances, so long as the rights of the complainer to
fair and full consideration of his or her case are maintained. There will be occasions,
for example, where the circumstances of the case require that some stage in the customary
procedure should be bypassed, or possibly a quite different route taken. Where, for
example, serious allegations are made, eg ones implying dishonesty or professional
incompetence, senior staff must be involved at the outset. Where such allegations suggest
that a criminal offence may have been committed the police should be informed.
Subjects Covered by Complaints Procedures and Review
Arrangements
27. People with social care needs and their carers are
entitled to have a second look at assessments, service decisions and the way in which
matters have been handled. It is a clear aim of Government policy, reflecting the
Citizen’s Charter, to expose procedures and professional decision-making to more
scrutiny than hitherto and it would be inconsistent with that policy to restrict the types
of case to which complaints procedures relate. Local authorities can have alternative
appeals arrangements for responding to certain types of complaints. However, complainers
must have the right to refer their complaint to the formal complaints procedure at any
stage, and should be made fully aware of this right.
28. The complaints which will form the material for the
procedures to which the directions and guidance will apply will in the main be made by or
on behalf of users or carers about the provision or non-provision of services, the quality
and extent of services, the operation of services and allied issues. Such matters should
not be confused with ones that fall to be dealt with under:
- grievance procedures, which concern staff issues, ie
conditions of service, management and support; or
- disciplinary procedures which apply to the actions of
staff in relation to failure to comply with codes of conduct, practice, instructions or
other relevant professional or administrative guidance.
29. Guidance on complaints about services which are
provided by a third party on behalf of a local authority is provided at paragraphs 51-55
below.
Procedural Requirements
Key Principles
30. The amended or new procedures and other arrangements
which local authorities establish to respond to complaints regarding their social work
functions should extend fully to each of the elements dealt with in the Directions and the
further points included in this guidance. Whether establishing new procedures or adapting
existing arrangements, local authorities should follow the principles set out below:
30.1 there should be ease of access to enable clients or
their representatives to make their views known;
30.2 there should be clearly indicated means of challenging
decisions on service provision/non-provision or other matters of concern to service users;
30.3 complaints should be acted upon;
30.4 no officer should be involved in investigating a
complaint relating to his or her own actions or judgement;
30.5 complaints should be resolved as quickly and as close
to the point of service delivery as possible;
30.6 the procedures should inform local authority managers
and the committee with principal responsibility for social work matters about the extent
to which quality assurance and service objectives are being achieved.
Consultation on Proposals
31. Complaints procedures should be developed and
introduced in ways that will ensure that they are equally well understood and accepted by
staff, elected members, service users and their representatives alike as well as by health
care workers and others who are in close contact with the persons receiving or in need of
social work services. Plans for considering and implementing the necessary arrangements
should take account of the need for consultation with staff at all levels and with
voluntary and other organisations with an interest (including organisations representing
carers). Adherence to the principles of the Race Relations Act 1976 and other equal
opportunities legislation will be essential: the need to deliver services with proper
regard to the cultural diversity of certain areas will require consultation with
appropriate community groups.
Staff Appointments
32. Whatever the range of appointments or designations made
under paragraph 4 of the Directions a senior officer of the social work department should
always be given overall responsibility for the organisation and effectiveness of the
authority’s complaints procedure. The duties of this post might include
responsibilities for:
32.1 the appointment of other officers for purposes of
receiving and investigating representations and the co-ordination of responses (paragraph
4 of the Directions);
32.2 the setting up, resourcing and monitoring of the
procedure;
32.3 the direction and oversight of the arrangements made
for informing staff of the complaints procedure (paragraph 5 of the Directions) and for
more general training;
32.4 the preparation and dissemination of information to
the public in accordance with paragraph 6 of the Directions;
32.5 the collation of data on the operation of the
complaints system and the provision of data to the appropriate local authority commitee
and to line managers (see paragraph 50).
33. Paragraph 4 of the Directions allows that any number of
appointments can be made for the purposes indicated in paragraph 17.1 above. The bulk of
appointments are likely to be of officers who are able to receive complaints. In all cases
it will be important that the organisation of the Social Work Department allows for the
establishment of clear links between the management of the complaints procedure,
operational management and responsibility for inspection work and other elements of the
quality assurance system.
34. Complaints should be investigated by an officer
nominated for the purpose, whether for a general category of complaint or for a specific
occasion. (In many cases where the action or decision of a particular officer is concerned
the task may fall to the line manager). In serious cases the nominated officer may be a
more senior officer than would normally be involved or even an officer from a different
area or a person from outside the local authority.
Training
35. Authorities should ensure, through appropriate
training, that all staff understand the complaints procedure which is to be brought into
operation in their area and the responsibility it places on them, and should seek to
secure their commitment to it. Staff with special responsibility for the operation of the
procedure will include those likely to be called on to support complainers and may require
special training in the skills they will need to do their job effectively.
36. Authorities should also ensure that all elected members
and social work staff who may have contact with service users are aware of where
information on the complaints procedures can be accessed and a contact location for
registering complaints.
Position of Elected Members Receiving Complaints
37. The complaints procedure should not affect in any way
the right of individuals or organisations to approach their local councillors for advice
or assistance. The procedure should, however, indicate clearly how complaints made to
councillors which cannot be resolved on the spot should be handled. It is preferable that
complaints are investigated in the first instance by the agency providing the service.
Information About Complaining
38. Paragraphs 6 and 8 of the Directions deal with the
accessibility of complaints procedures. All local authorities should ensure that
information about how and where complaints can be made is available for people who are
either directly or indirectly receiving a social work service, or have been refused such a
service or the carers or other representatives of such persons. Notices should be
displayed in authorities’ offices and leaflets should be widely available giving the
name, address and telephone number of an officer nominated in terms of paragraph 17.1
above, or of the person responsible for oversight of the procedure as a whole.
39. As local complaints procedures give full consideration
to whether procedures or actions complained against have been carried out in a proper
manner, it is important that complainers are made aware of the procedures which are
followed. Local authorities, on receipt of complaints, should provide all complainers with
leaflets which set out the following:
39.1 the investigative procedures which the authority will
follow including how confidentiality will be maintained, how conclusions will be reached
and recommendations made;
39.2 a clear statement that making a complaint will not
result in discrimination and that if discrimination does occur that they should make a
further complaint.
Where it is relevant to the complaint, information should
also be provided on:
39.3 the procedure for assessing a person’s care
needs;
39.4 the procedure for devising a care plan for a
person’s assessed care needs; and
39.5 information on how an independent advocate can be made
available.
Such information will assist complainers in being aware of
the procedures and they will be better placed to consider whether they have a sound basis
for complaining.
40. Supplies of all relevant leaflets should be provided to
all organisations providing social work services under contract from the local authority
(including those located in other areas) and to other independent organisations to which
individual service users might turn to for advice. Authorities should consider whether
versions of leaflets should be made available in minority languages, on tape or in
braille.
41. Authorities may wish to discuss with voluntary
organisations and other local groups how information about the complaints procedure should
be made available to persons who might have difficulty in gaining access to a written
explanation of the procedure or in understanding it. Particular attention should be given
to the information needs of children, persons with sensory handicaps, the housebound and
people who may have reading problems.
Dealing with Complainers
Oral Complaints
42. Paragraph 8 of the Directions allows for formal
complaints or other representations to be submitted either orally or in writing. Oral
representations should, therefore, be treated seriously. If it appears that an oral
complaint is being made which cannot readily be resolved by informal means the officer
receiving the complaint should suggest that the matter is recorded. This can be done by
the complainer or the person receiving the complaint putting it in writing. Unless it is
clearly impossible to do so, the text of a complaint recorded on behalf of complainers
should be fully agreed with them.
Assistance to Complainers
43. There will be occasions where a complainer (or
potential complainer) will need help, advice or support from another individual or from an
outside agency in framing or pursuing a complaint. An offer of support and the opportunity
to explain and discuss a concern may help resolve complaints more quickly than might
otherwise be the case. Authorities may particularly wish to arrange support where language
or other difficulties impede communication.
Complaints on Behalf of other Persons
44. It should be possible for representations to be
accepted on matters other than those directly affecting the person making them and for
representations to be made by or on behalf of a group of persons, provided this is not a
campaign which places an unreasonable burden on the complaints procedure (see paragraph 37
below). Where someone seeks to act with or on behalf of another person the authority will
wish to ascertain their status and the authority on the basis of which the person seeks to
act. In any case involving the possibility of legal representation a decision will have to
be made whether the complaint can properly be subsumed within the complaints procedure or
dealt with in some other way. While regard should always be had to the duty under
paragraph 7 of the Directions to provide appropriate help to a person in making
representation this need not extend expressly to assistance with the selection of a
representative.
45. It will be necessary for clear decisions to be reached
on whether the complaint being made is a new one or an attempt to revive one that has
already been considered and disposed of. Complaints should only be registered once it is
clear that the complainer wishes to embark on the complaints procedure.
46. The aim at all stages in the procedure should be to
avoid delay, maintain due confidentiality and to keep the complainer properly informed.
Where a complaint is recorded a member of staff might offer to discuss it with the
complainer at an early opportunity in order to clarify when and how the authority may
respond. A prompt initial response will increase the possibility of the local authority
reaching a final outcome which is satisfactory both to the complainer and the authority.
Local Authority Response Times
47. The attached Directions, introduce new time limits (in
calendar days) by which written notification of substantive action must have been made,
namely:-
47.1 an acknowledgement that the complaint has been
received and is being considered within 5 days of receipt of the complaint. (See paragraph
10(1) of the Directions);
47.2 a response on the substance of complaints within 28
days of receipt of the complaint (see paragraph 10(2) of the Directions);
47.3 review committee to make recommendations within 56
days from the date the complainer requested reference to it (see paragraph 10(4) of the
Directions);
47.4 local authority to agree actions and to notify the
complainer in writing of such decisions within 42 days from the date of recommendation by
the Complaints Review Committee (CRC) (see paragraph 10(5) of the Directions).
Any extensions to the above deadlines must be agreed
between the complainer and the local authority.
48. The requirement in paragraph 10 of the Directions that
the local authority should have arrangements for informing the complainer in writing about
the outcome of its investigations is without prejudice to any similar notification which
the local authority may consider it appropriate to give to others who have a legitimate
interest in a complaint. Such persons could include members of staff who may be involved
in providing services to the client or who may themselves be the subject of the complaint.
The authority will need to bear in mind the rights of staff including the need to observe
confidentiality in respect of their interest.
Confidentiality
49. Complainers may request that their identity is not
disclosed when a complaint is made. Authorities should provide in their procedures for
complainers being aware of their right to request anonymity other than from the officers
investigating their complaints. Complainers should be made aware of the implications of
retaining such anonymity on the ability of authorities to investigate complaints
adequately.
50. During the course of investigating a complaint a local
authority may have to consider the (sometimes) conflicting requirements of the need to
make information available to the complainer and the need to safeguard information that is
subject to confidentiality. When an authority is asked to disclose information which is
confidential it should explain carefully to the complainer what information is
confidential, why it cannot be disclosed and what remedies the complainer has available.
These include pursuing the complaints procedure without access to the confidential
information (and to which the members of the CRC will have no access), referring the
matter to the Commissioner for Local Administration in Scotland or seeking a legal remedy
to the complaint. Complainers may request access to their personal files to enable them to
pursue their complaint. In responding to complainers seeking access to their personal
files, authorities are reminded that:
50.1 The complainer has no right of access to personal
information held on personal files about a third party, unless the third party has given
consent.
50.2 The intentions of the social work department, in
respect of any individual to whom the complaint refers, are not "personal
information"; they are not subject to the Code on Confidentiality of social work
records.
Restrictions on the disclosure of information about a third
party may prevent sufficient information being made available to allow a CRC to make an
informed decision about a complaint. The Directions allow for the suspension of a
complaint in such circumstances. Any such decision must be referred to a CRC for
ratification. Detailed guidance on confidentiality and access to personal records should
be consulted if preparation of investigation of a complaint may conflict with
confidentiality requirements [ SWSG SW1, Code on
Confidentiality of Social Work Records, 6 February 1989 SWSG
SW2, Access to Personal files (Social Work) (Scotland) Regulations 1989, 10 February 1989]
. Any personal Information which is provided should be in a form which reflects the
complainer’s needs (eg Braille or minority language).
Unreasonably Persistent Complainers
51. Paragraph 3.58 of the Citizen’s Charter Complaints
Task Force Report "Putting Things Right" states:
"Guidance on handling continual and vexatious
complainants should be set out in the formal complaints procedures of the organisation...
There has to be a cut-off point, though this should only be reached after careful review
of the complainant’s case and with management support. Any continuing correspondence
should be checked to ensure that it does not contain new issues which merit a response and
that the complainant must be told of the next stage of the review of their complaint (if
there is one)."
Authorities are expected to take this sort of action in
dealing with unreasonably persistent complainers, ensuring that they can justify a
decision to put a complainer into this category. Details of all cases in which such action
is taken should be referred to a CRC. Persistent complainers should also be informed of
how they can progress their complaint further (eg through the Local Government Ombudsman
or the Courts).
Complaints Campaigns
52. Complaints should be "individual" and treated
as such. Authorities should refuse orchestrated campaigns which would put unfair pressure
on their complaints procedures. Details of decisions to refuse orchestrated campaigns
should be passed to a CRC for ratification. Authorities should also consider alternative
arrangements for responding to such complaints.
Review Arrangements
53. Paragraph 10(2) of the Directions requires that where a
complainer is not satisfied with the response he receives in respect of a complaint and
wishes the matter to be referred to a review committee this should be done forthwith. The
role of CRCs is to examine objectively and independently the facts as presented by the
complainer and by the local authority, then to make a recommendation to the appropriate
local authority committee. In doing this, the CRC should be aware of local authority
policies, priorities, and resources and should recognise where professional judgement has
been exercised. The CRC may express disagreement with any of these in relation to a case
under review. The strength of CRCs is in their independence and objectivity and the fact
that they are not comprised of professionals and officials from the department to which
the complaint relates. On professional matters the CRC may sometimes wish to obtain an
independent professional opinion before coming to a view about the reasonableness of the
complaint. Complainers are free to call for, and meet the costs of, their own professional
opinion. However, it is preferable if a single independent professional opinion can be
agreed.
Status of Reviews
54. CRCs must be conducted formally and have regard to
generally accepted procedures which accord with natural justice. They should, while
considering the basis of a complaint, take any opportunities which arise to resolve it.
CRCs should not, therefore, develop a degree of formality or inflexibility that may
inhibit the objective of facilitating a resolution.
55. CRCs should consider not only the manner in which
decisions have been arrived at, but also decisions about assessment and service provision
made on the basis of local authority policies or the professional judgement of local
authority staff. Where independent professional advice has been sought by the CRC, details
of this should be provided to the committee responsible for social work with their
recommendations.
56. In considering recommendations from CRCs, local
authority Committees responsible for social work matters should have regard to the
standing of CRCs and only reject recommendations in exceptional circumstances. Where such
a local authority committee does disregard the recommendations of a CRC the local
authority must ensure that the reasons are published in the committee minutes and given to
the complainer in writing with advice on what further steps may be taken with regard to
the complaint eg reference to the Commissioner for Local Administration in Scotland.
Local Government Reorganisation
57. The Local Government etc (Scotland) Act 1994 repealed
the statutory requirement placed upon local authorities to establish social work
committees but they will nevertheless be required to set up appropriate organisational and
management structures to meet statutory obligations in relation to the social work
function. Local authorities will wish to ensure that CRCs fit into these structures - for
example, by making the CRC a sub-committee of the committee established to deal with
social work matters. Some authorities may have few references to a CRC. Authorities should
consider with neighbouring authorities the feasibility of joint training and of having a
single CRC covering more than one council area. A representative, official or member from
the local authority involved in each complaint might attend to provide advice on the
authority’s policies, priorities and resources (but not to vote).
58. Authorities should be clear, however, that under the
new arrangements for local government, and under the terms of the attached Directions,
there is no statutory duty placed upon them to make CRCs formal sub-committees of the
social work committee or other committee set up to deal with social work matters or the
full Council itself. Authorities can be flexible, therefore, in determining committee
structures but, in line with a Scottish Office commitment to monitor the new arrangements,
authorities should inform Social Work Services Group by 31 May 1996 of the specific
organisational arrangements put into place. Authorities should note that where a CRC is to
be a sub-committee of a formal committee established to deal with social work matters,
there is no statutory requirement that membership should include elected members.
Independent Representation on Review Committees
59. The Directions set out requirements on the appointment
of "independent persons" to CRCs. Independent persons should not currently be,
or have been in the one year prior to being appointed to the review committee, a member or
official of any local authority. People who are employed by organisations to which the
local authority have delegated any of their social work functions cannot act as
independent persons and the spouses of such members, officials or employees are similarly
restricted. There is no restriction on 2 or all 3 members of a CRC being independent
persons, but paragraph 14(2) of the Directions requires that CRC chairpersons must be
independent persons. These arrangements should encourage complainers’ confidence in
the impartiality of CRC proceedings.
Membership, Experience and Training of Review Committees
60. In view of the need to promote client confidence, it is
important that Chairpersons of CRCs should be, and should be seen to be, independent of
the local authority. Public advertising for independent members and announcements of
appointees’ backgrounds will increase this confidence. Chairpersons should have
knowledge of social work matters and the conduct of proceedings before a review body or
tribunal. Members of CRCs should have experience of at least one of these areas.
Chairpersons of CRCs should not be current elected Members of the ruling group in the
council or Officials of any local authority nor have been so during the year prior to
taking up their appointment. These measures are addressed in the Directions and should
help service users and their carers to be confident in the impartiality and expertise of
CRCs. Authorities should provide ongoing training to Chairpersons and Members where
necessary. Public confidence is a vital component if a complaints procedure is to be
successful.
Complainer Representation at Review Committees
61. Some voluntary groups wish to represent complainers at
CRCs without the complainer being present. The Scottish Office considers that it is
generally desirable for complainers to be present, even if some form of advocacy is
necessary because of a client’s degree of disability or sensory impairment.
Independent advocacy should be promoted, in keeping with the intended impartiality of
these reviews.
Judicial Actions - Postponement of Complaints
62. It would generally be inappropriate for a complaint
procedure to continue when it became clear that the subject of a complaint is being
pursued through legal action, for example, claims for custody of children or an action for
damages. Similarly, it would be inappropriate to proceed with a CRC, where other statutory
procedures are being followed in dealing with the complaint, for example, a
children’s hearing. The Directions allow postponement or suspension of CRC in such
circumstances. Complainers should be informed at the outset of their complaint that the
pursuit of legal action may result in their complaint being suspended. Where this occurs
the complainer must be informed.
Compensation
63. Under Section 83 of the Local Government (Scotland) Act
1973, local authorities have the power to incur expenditure in appropriate circumstances,
subject to overall restrictions. This power may be used to make payments on an ex gratia
basis. Such payments would not, however, create a general precedent for the payment of
compensation under the complaint procedures. The Scottish Office would not wish to
encourage procedures based on compensation. With a conciliatory approach, it should be
possible, in most cases, to reach conclusions acceptable to the complainers. Whether, on
the basis of the findings, an authority agrees to offer compensation in a particular case
where this seems justified and the level of the compensation are matters for the
authority.
Publishing Results of Complaints
64. Authorities need to be able to demonstrate that they
deal with complaints seriously and fairly. Publishing the results of complaints and the
action taken to put things right as a result, can help to show that authorities are
willing to admit when they are in the wrong. Publication can take the form of listings
giving brief descriptions of complaints, results and actions where appropriate and these
should be available for inspection in public offices of the authority. However,
authorities must ensure that the identity and location of complainers remain confidential.
The Directions specifically address publication of reasons why a CRC recommendation is to
be disregarded. The actual arrangements for publication should be notified in the general
leaflets describing authorities’ complaints procedures.
Monitoring
65. The operation and effectiveness of complaints
procedures should be subject to carefully planned monitoring. Systems should be devised
locally to provide for:
- the dissemination of information about the numbers and
types of complaints received;
- the use of the information as a measure of performance
and means of quality control;
- the referral of data on complaints about services subject
to particular forms of regulation to that part of the local authority with relevant
oversight responsibilities. This could include the authority’s inspection unit or, in
the case of services purchased under contract, the unit responsible for monitoring the
contract.
Information about representations that are resolved
informally will also be of relevance to the monitoring process.
66. Where representations raise policy, resource management
or staffing issues, line managers should be informed. Reports on the use made of the
complaints procedure and the outcome of complaints should be made to the social work
committe, and will be open to inspection by members of the public in terms of the Local
Government (Access to Information) Act 1985.
Complaints about services provided by third parties on
behalf of the local authority
67. Services provided by third parties on behalf of the
local authority remain functions of the local authority. The complaints procedures which
authorities are required to establish will thus necessarily extend to those social work
services which voluntary organisations or other persons or bodies undertake to provide
under contract to the local authority. Local authorities will however be able to delegate
the handling of initial complaints (including responsibility for investigating as well as
receiving complaints) to the service provider along with the provision of the service
itself: in such cases the authority’s complaints procedure should have regard to
arrangements which the service provider has established for dealing with complaints about
his own services.
68. Direction 12 imposes certain specific requirements on
the local authority in such cases so as to integrate the third party’s procedures
with those of the authority itself. These requirements are:
68.1 that the local authority shall itself ensure that
information on the third party’s arrangements for the handling of complaints is made
available to actual and prospective service users. (Paragraph 12(2) of the Directions);
68.2 that, where the authority has given responsibility for
investigating and considering complaints to a third party acting on its behalf, the
complaints made and the response in each case provided should nevertheless be reported to
the authority (paragraph 12(3) of the Directions); and
68.3 that where complaints are dealt with by a third party
as in sub-paragraph 53.2 above, arrangements should be made as necessary and practicable,
irrespective of the precise responsibility of the third party for dealing with the
complaint, for the receipt and onward transmission of the complaints to the local
authority and for assistance to be given by the third party to persons wishing to make
complaints (paragraph 12(4) of the Directions).
69. These requirements are made so as to give local
authorities the necessary degree of flexibility in the arrangements they will have to make
for the handling of complaints in respect of the services provided by third parties if
they decide to delegate any responsibilities in the way described in paragraph 52 above.
It will be essential in all cases that the local authority should establish very clearly
what the limit of any delegation will be in relation to receipt of complaints, the
handling of investigations and the provision of responses. The extent of the duties so
defined should be indicated to the third party and should form a part of the contract or
other arrangement for the provision of service. It will not, of course, be possible for
third parties to have any role in the referral of a complaint to a review committee under
paragraphs 10(2) of the Directions and this point should be made clear in the publicity
which the local authority, or any third party acting on its behalf, gives about this
element of the complaints procedure.
People Financing Their Own Care Arrangements
70. Unless the arrangements have been made by a local
authority (paragraph 12 of the Directions) or the complaint relates to a failure by the
local authority to make appropriate arrangements, it is clear that a person financing his
or her own care, whether residential or not, can only use the providing
organisation’s complaints procedure. Local authorities may wish to consider whether
it may be appropriate to make it a condition of registration that providing organisations
have in place appropriate procedures for complaints. Where residential care or nursing
care is involved, he or she can raise the problem, if relevant, with the local
registration authority (Health Board for private nursing homes). Notification to a
registration authority would not allow access to the local authority’s or Health
Boards’ formal complaints procedures but would be dealt with as a matter for
inspection, if relevant.
Complaints to the Mental Welfare Commission
71. Individuals with a mental disorder have statutory
rights to local authority services under the Mental Health (Scotland) Act 1984. Complaints
to an authority made by, or on behalf of, such an individual may also be referred to the
Mental Welfare Commission for Scotland. The Mental Welfare Commission will normally not
consider such cases until the appropriate local authority procedures have been completed.
Special Cases
(a) Interagency Assessments
72. The assessment of community care needs on an
inter-agency basis may raise particular issues as regards the notification of decisions
and any complaints or other representations arising in this connection. Similar issues may
arise in relation to the inter-disciplinary assessment of children. Consultation between
statutory or other agencies may be called for where a complaint concerns a decision
reached following an assessment in which the second authority or agency was involved and
which dealt with matters for which that other body has some responsibility.
(b) Criminal Justice Social Work Services Funded 100% by
Central Government
73. Where a complaint relates to services in the criminal
justice system provided by a local authority with the full cost reimbursed by the
Secretary of State (community services orders, probation supervised attendance, parole and
other supervision of offenders and the preparation of social enquiry and other reports to
the courts), the normal complaints procedures established for the purpose of Section 5B
will, except in respect of Breach Proceedings, apply. In cases where the offender has been
advised that breach action has been initiated he/she may only raise any complaints they
have regarding such breach action or procedure with the court. In such circumstances the
local authority complaints procedure may not be invoked. To assist the Secretary of State
in monitoring performance in relation to the National Objectives and Standards for these
services, the local authority should send to SWSG Criminal Justice Social Work Services
Branch at quarterly intervals -
a. a copy of each complaint received in writing, or
recorded on the complainer’s behalf;
b. a copy of the letter notifying the complainer of the
outcome; and
c. where the complainer is dissatisfied with the outcome,
notification of that fact and of the result of any review of the decision which then takes
place.
(c) Prison-based Social Work Services
74. Complaints about prison-based social work services will
be progressed through the social work department’s standard complaints procedure, but
social work managers must bear in mind the particular sensitivities of the prison setting.
The Governor of an establishment must, therefore, be advised of any complaint which may
have implications for prison security, discipline or good order, and any complaint
involving allegations of criminal conduct. It should be noted that apart from those
individuals and bodies who have a legal right of access, Governors retain the right to
exclude individuals from entry to the prison and may choose to exercise this right in
respect of any local authority staff member who is the subject of a complaint.
ANNEX C
THE SOCIAL WORK (REPRESENTATIONS PROCEDURE) (SCOTLAND)
DIRECTIONS 1996
The Secretary of State, in exercise of the powers conferred
on him by section 5B(6) of the Social Work (Scotland) Act 1968 [ 1968 c.49. Section 5B was inserted by section 52 of the National Health Service
and Community Care Act 1990 (c.19) and will be amended from 1 April 1996 by the Local
Government etc (Scotland) Act 1994.] and all other powers enabling him in that
behalf, hereby gives the following directions to local authorities:-
Citation and Commencement
75. These Directions may be cited as the Social Work
(Representations Procedure) (Scotland) Directions 1996 and shall come into force on 1
April 1996.
Procedure to be Adopted
76. The procedure shall conform to the requirements
specified in these Directions, and otherwise shall be such as local authorities may
determine.
Saving for Informal Representations
77. The procedure shall not prejudice any right of persons
to make representations to any officers or members of the local authority, or to any right
of such officers or members to deal with representations by other methods evolved by the
local authority outwith the formal complaints procedure.
Designation of Officers to Deal with Representations
78. The local authority shall designate -
(a) an appropriate number of officers for the purpose of
receiving representations; and
(b) one or more officers for the purpose of investigating
representations and co-ordinating consideration of, and response to, representations.
Informing Staff of the Procedure
79. The local authority shall ensure that their officers
concerned with the discharge of their social work functions are informed about the
procedure and are able to give information about the procedure to persons who may wish to
make representations.
Informing Service Users of the Procedure
80. The local authority shall take steps to make
information about the procedure available to persons specified in section 5B(2) of the Act
and to persons who may advise or act on behalf of such persons. This shall be available in
an accessible form, such as a leaflet and shall include details in general terms about the
investigative procedures which the authority should follow. It should contain information
on advocacy services and make clear complaining will not lead to discrimination.
Help in Relation to Making Representations
81. (1) Where upon informal representations by any person
specified in section 5B(2) of the Act, or acting on behalf of such a person, a matter is
not dealt with to the satisfaction of the person who made the informal representations,
the local authority shall advise him of the right to make representations and how they can
be made, including the addresses and telephone numbers of premises where they can be
received.
(2) A local authority shall offer advice and guidance on
the use of the procedure to persons specified in section 5B(2) of the Act, or acting on
behalf of such persons, who wish to make representations and where appropriate shall help
them in formulating and writing down representations.
(3) This Direction is subject to Direction 12(4) where it
applies.
Form and Submission of Representation
82. Representations shall be made in writing or orally and
shall (subject to Direction 12(3) where it applies) be submitted to the local authority at
such place or places as the local authority shall designate.
Records
83. A local authority shall keep a record of the
submission, the contents and the disposal of representations. Written records of initial
oral complaints should be agreed with complainers or their representatives.
Matters to be Included in the Procedure
84. Local authorities shall ensure (subject to Direction
12(5) where it applies) that the procedure includes provision to the following effects:-
(1) that an acknowledgement in writing that a
representation has been received and is being considered shall be issued within 5 days
after receipt of the representation;
(2) that a response in writing to the substance of any
representations shall be issued to the complainer as soon as reasonably practicable and
within 28 days after receipt of the representations;
(3) that if a complainer within 28 days of receiving a
response in writing to the substance of his representations informs the local authority in
writing that he is not satisfied with the response and wishes the matters to be referred
to a review committee the matter will be referred forthwith to a review committee for
review;
(4) that the review committee shall make recommendations in
writing to the social work committee or other responsible committee of the local authority
as soon as is reasonably practicable and within 56 days after the complainer has requested
reference to it;
(5) that the local authority shall as soon as is reasonably
practicable and within 42 days of receiving the review committee's recommendations decide
what action to take and notify the complainer in writing of that decision and, where a
review committee recommendation has been disregarded, the reasons for doing so;
(6) that where a local authority disregards a
recommendation of the complaints review committee, the reason for the decision are given
to the complainer in writing accompanied with any relevant advice and also appear in full
in the minutes of the relevant meeting of the responsible committee of the local authority
and are made available for public scrutiny;
(7) that where a local authority or a complainer wishes to
extend the period for completing any of the above procedures, this must be agreed by both
the local authority and the complainer.
85. Local authorities shall further ensure that the
procedure in relation to a referral of a matter to a review committee includes provision
to the following effects:-
(1) that the local authority may suspend a review committee
for relevant reasons, such as where it has received notice that the matter to be reviewed
is the subject of legal action against the authority for custody of children, or where
other statutory procedures have been instigated to deal with the complaints or where
restrictions on the disclosure of information relating to third parties will not allow for
sufficient information to be available to enable a review committee to make an informed
decision. Where requested to do so by the complainer following the conclusion of the legal
proceedings or other statutory procedures or where such reasons are no longer relevant,
the authority shall arrange for the review of the matter to be held or continued. The
review committee should be informed of the details of the complaint and the reason for it
being suspended prior to such action being taken. Complainers will be informed in writing
of any decisions to suspend reviews.
Arrangements Where Service Provided by a Third Party
86. (1) Where a local authority in exercise of their social
work functions make arrangements for any service to be provided by a voluntary
organisation or other person, these Directions shall apply subject to the following
paragraphs.
(2) Without prejudice to the generality of Direction 6, the
local authority shall take such steps as they think appropriate to make information about
the procedure available to persons who receive or may need to receive the service.
(3) The local authority may arrange for submission of
representations under Direction 8 relevant to provision of the service to be made to the
organisation or person which provides the service, and for the organisation or person to
receive them on behalf of the local authority and transmit them to the local authority.
(4) The local authority may arrange in respect of
representations relevant to provision of the service for their functions under Direction 7
to be performed on their behalf by the organisation or person which provides the service.
(5) The local authority may arrange for the organisation or
person which provides the service to act on their behalf in investigating and considering
representations relevant to the provision of the service and in responding to them in
accordance with Direction 10(2). Where the local authority so arrange, they shall also
arrange for any such representations and the response to them to be reported to the local
authority.
Interpretation
87. (1) In these Directions, unless the context otherwise
requires -
"the Act" means the Social Work (Scotland) Act
1968;
"complainer" means a person specified in section
5B(2) of the Act, or anyone acting on behalf of such a person, who makes representations;
"person" bears its normal meaning and is not
restricted to persons specified in section 5B(2) of the Act;
"the procedure" means the procedure established
by local authorities in accordance with section 5B of the Act and the Social Work
(Representations Procedure) (Scotland) Order 1990 [ SI1990/2519]
;
"representations" includes complaints, and means
representations submitted in accordance with the procedure; and
"social work functions" means functions under the
Act or any of the enactments referred to in section 5(1B) of the Act.
(2) The expression "review committee" in these
Directions means any responsible committee of the local authority which -
(a) is appointed for the purpose of reviewing any matter in
accordance with the procedure;
(b) consists of 3 persons, a chairperson and 2 members, the
former having knowledge of -
(i) social work matters; and
(ii) the conduct of proceedings before a review body or
tribunal,
the latter having experience in at least one of these
areas;
(c) has an independent person appointed as its chairperson;
(d) is drawn from a panel of persons (who may be
independent persons or members or officers of the local authority but not officers of the
department responsible for social work matters) which is appointed by the local authority
for the purpose of persons on the panel acting when required as members of such
committees.
(3) For the purposes of paragraph (2) above the expression
"independent person" means a person who is not -
(a) a member of the political party forming the ruling
group on the Council or an officer of any local authority, and who has not been such a
member or officer during the period of 1 year prior to being appointed to the review
committee;
(b) a person who is a member of or employed by an
organisation to which the local authority have delegated any of their social work
functions; or
(c) a spouse of any such member, officer or person.
Revocation
88. The Social Work (Representations Procedure) (Scotland)
Directions 1990 are hereby revoked.
GAVIN ANDERSON
A Grade 4 Officer in The Scottish Office Home Department
Social Work Services Group
1996
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