Effective Challenges to Decision Making - What to do when things go wrong

1. Where to Start?

2. Stage by Stage Approach

In this section we look at the stages in more detail.

1. Identify which part of the process you are unhappy with

The process can be looked at in the following stages.

•      Assessment

•      Support Plan

•      Implementation

•      Review

It is useful to consider where in the process things have gone wrong.  If for example it is the assessment then that may dictate a different approach from that adopted if there is a problem with the implementation of the plan.  It will also lead naturally to a consideration of the next stage.

2. Who is responsible for the part of the process you are unhappy with?

•      Local Authority

•      NHS

•      Care provider

Again, by considering the stages of the overall process, you should be able more accurately to define who is responsible and therefore to whom any challenge should be directed.  It may also have an impact on the forum for the challenge, for example, complaints about the Care provider may be better directed to the Care Inspectorate.

3. Identify the relevant legal obligations/powers 

This stage will help you to formulate your arguments.  It will begin to look at the issues of what should have happened and what has not happened.

Duty to carry out assessments

•           s12A Social Work (Scotland) Act 1968

•           S22 Children (Scotland) Act 1995

•           S23 Children (Scotland) Act 1995

•           S6 Carers (Scotland) Act 2016

•           S12 Carers (Scotland) Act 2016

Duties in relation to provision of information and support        

S9 Social Care (Self-directed Support)(Scotland) 2013 Act (2013 Act)

•      Explanation of nature and effect of each of the four options

•      Information on how to manage support

•      Information about persons who can provide assistance and information

•      Information about Independent Advocacy

 

Duty to have regard to key principles

S 1 2013 Act

•      Involvement

•      Informed Choice

•      Collaboration

S2 2013 Act

•      Dignity

•      Participation

When we come to consider powers, rather than duties, it can give us a sense of what could be done.  Issues here will centre on consideration of whether a decision has been taken to exercise or not exercise a power reasonably

Powers in relation to Direct payments

•      Self-directed Support (Direct Payments) (Scotland) Regulations 2014/25

•      2013 Act sections 5(3)(a), 7(3)(a) and 8(3)(a)– ineligibility for direct payments

•      2013 Act Section 12 – right to request a review of decision that ineligible to receive direct payments due to material change of circumstance

•      2013 Act section – 16- power to recover misused direct payments.

Overarching Legislation/ guidance

In addition to the Statutory Principles created by the primary legislation, there are a number of sources of overarching legal principles and guidance which should be considered.

•      Statutory Code of Guidance

•      Equality Act 2010

•      Human Rights Act 1998

4. Identify the appropriate complaints procedure (s)/ legal remedy

There are a variety of options available here but they will not all be available or appropriate in every situation. In most circumstances, the starting point is likely to be the Complaints Procedure and we will look at that as well as the other options in detail in the next module.

•      Is there a right of appeal?

•      Internal complaints procedure

•      Care Inspectorate

•      Scottish Public Services Ombudsman

•      Alternative dispute resolution

•      Equality Act claim in Sheriff court

•      Judicial Review

 5.  Identify any time limits

•      Council complaints – 6 months

•      NHS – 6 months

•      Care Inspectorate – 6 months

•      Scottish Public Services Ombudsman – 12 months

•      Equality Act claims in Sheriff court – 6 months

•      Judicial review – 3 months

 
6. Identify sources of advice, assistance and support

•      Independent Advocacy

•      Citizens Advice Bureau and other advice agencies

•      The 3 R’s project

•      Solicitor

3. Complaints Procedure

Social Work CHP

What is a Complaint?

A complaint is not:

• a routine first-time request for a service
• a claim for compensation only
• a disagreement with decisions or conditions that are based upon social work recommendations, but determined by a court or other statutory body, for example decisions made by a children's panel, parole board or mental health tribunal
• an attempt to reopen a previously concluded complaint or to have a complaint reconsidered where we have already given our final decision.

Investigation

This is Stage 2 of the Complaints Handling Procedure and represents an escalation in the process.  In certain circumstances the complaint must be dealt with under Stage 2

When must a complaint be escalated?

“An investigation aims to establish all the facts relevant to the points made in the complaint and to give the customer a full, objective and proportionate response that represents [our] final position.”

(CHP p17)

Timelines

The following deadlines should apply at the investigation stage:

External Review

Once the investigation stage has been completed, the Complainant should have the right to approach the SPSO if still dissatisfied.

4. External Review - Scottish Public Services Ombudsman and Care Inspectorate

SPSO

The SPSO cannot normally look at complaints:

• where the Complainant has not exhausted the council's complaints handling procedure
• more than 12 months after the Complainant became aware of the matter complained about, or
• that have been or are being considered in court.

In order to access the SPSO the Complainant must have made a complaint to the organisation first

The SPSO cannot consider complaints about employment, personnel or most contractual matters or that have been taken to court or a tribunal.

When first receiving a complaint the SPSO will carry out a number of checks to sift ineligible complaints or matters outside their remit.

• Is it about a subject and organisation that they can look at?

• Has it gone through the right complaints process? 

• Has it been made within 12 months deadline? 

• Has it enough detail to get to work on it?

If the complaint passes these tests, the Complaints reviewer contacts complainer

Investigation: 

The Investigator will start looking at the complaint paperwork such as the complaint form or letters.  They will continue by asking questions, getting copies of documents and taking expert advice if they need to.

Once they have come to a decision they will notify all parties of the decision and any recommendations to put things right.

If the Complainant is unhappy with decision can request a review on the basis that they made their decision based on important evidence that contains facts that were not accurate, and you can show this using readily available information.

You can also request a review if you feel you have new and relevant information that was not previously available and that affects the decision they made.  In this case, SPSO may share the new information with the organisation you complained about. They do this to give them the chance to consider it before the Ombudsman makes a decision on your review request.

You have three weeks to notify the Ombudsman of your wish to review and a further three weeks to submit the review

The SPSO can be contacted on the details below.

Care Inspectorate

The Care Inspectorate are the independent scrutiny and improvement body for social care and social work across Scotland.  They regulate, inspect and support improvement of care services for the benefit of  the people who use them.

They have a statutory duty to deal with complaints made to them about registered care services.

Complaints that they are able to deal with may relate to:

• inadequate standards of care
• failure to uphold the rights of a person using a service, or their relatives or carers
• a care service’s failure to follow appropriate safe care practices.
• the practice of staff, including treatment by, or conduct of, a member of staff, fitness of staff,
• inadequate staff training and staff numbers or deployment

They are not able to deal with complaints that fall under the remit of other organisations, including:

• a request for compensation
• issues that are in court or have already been heard by a court or tribunal
• a complaint that has already been upheld by the care service and action taken to change/improve  practice
• staff employment issues that are covered by contract, grievance and employment conditions
• issues that are not within the remit of the care service
• complaints about social work decisions or contracting with a care service (can complain to LA/SPSO
• an attempt to reopen a previously concluded complaint or to have a complaint reconsidered where they  have already given final decision
• child and adult protection issues
• criminal offences

As a first step they will assess whether the issue raised can be defined as a complaint

If so they will begin their complaints procedure within three working days of receipt of the complaint

They will contact the complainer to discuss the details of the complaint and then the    Complaints inspector determines the appropriate action for dealing with the complaint based on a risk assessment.  The options available to them are:

1. Use the information as intelligence

2. Frontline resolution

3. Investigation by service

4. Investigation by inspectorate

Timescales

• Contact within 10 working days to tell what they will be investigating.
• Aim to give full response as soon as possible but no later than 40 working days from the time decide can investigate
• Can extend time if necessary

5. Judicial Review

Judicial Review is a legal process which allows the actions of, or decisions made by, public bodies to be challenged in court. It is concerned primarily with whether a 'fair' process has been followed rather than outcome in the form of the decision.

What types of decisions can be reviewed?

Any decision, act or omission by a pubic body is subject to judicial review. However, a judicial review can only be raised if all other remedies have been exhausted and there are appropriate grounds for challenge.


What is a public body?

‘Public body’ includes any government department (UK or Scottish Government), local authority or any other body delivering public services or exercising a public function.

A list of Scottish public bodies can be found on the Scottish Governments website (http://www.gov.scot/Topics/Government/public-bodies/about/Bodies) and 

a list of UK public bodies can be found on the UK Government's website (https://www.gov.uk/government/organisations).

Grounds of review:

Lawfulness

An act/decision can be challenged on the grounds that the public authority did not have the legal authority to make it/do it.  A decision can also be challenged on the basis that the public body did not apply the law correctly when making the decision.  

A public authority also has to ensure its decisions are compliant with Human Rights and    Equality legislation including failure to have regard to Public Sector Equality Duty or a failure to investigate the impact of policy on those with ‘protected characteristics

The correct procedure must be followed by a pubic body when making a decision. A decision may be able to be challenged if a  public body:

• restricts its discretion,
• deviates from its normal policies/practices when making a decision,
• fails to consult where appropriate,
• fails to take into account relevant information,
• takes into account irrelevant information,
• gives a false impression of how it is likely to act
• fails to provide a fair hearing or
• displays bias,

Irrationality/Proportionality

This ground relies on the concept of 'Wednesbury Unreasonableness', meaning a decision so unreasonable that no reasonable public body could ever have made it.

The test of what is reasonable comes from the case of Associated Provincial Picture Houses v Wednesbury Corporation, [1948]  where “Wednesbury unreasonableness”  was described as being;

If a person acts in 'Bad faith', then they will almost always be acting irrationally.

Proportionality

This is a concept that only applies to some types of case and comes from EU and ECHR law where it is frequently employed in the interpretation of treaties

It has some natural overlap with unreasonableness, but has the advantage that it might be a slightly lower threshold than Wednesbury unreasonableness.

What can the court do?

The court cannot change the decision (unless the decision breaches human rights) but can overturn the decision requiring it to be made again. The court can also make a declaration, award damages and make interim orders (e.g. to prevent a decision being enforced while it is under review).

How do you raise a judicial review?

Court of Session in Edinburgh

Judicial review requires permission from the court to proceed - ‘real prospect of success’.

What does it cost?

Judicial Review proceedings can be very expensive. It should be borne in mind that an unsuccessful applicant will be liable for the public body's costs as well as their own.  However legal aid is available for those eligible to meet costs and cover expenses. 

Time Limit

3 months from date of decision/action giving rise to challenge

Legal Advice

Legal Advice can help with issues regarding eligibility, assessment, direct payments and charging for services

It can be particularly helpful if pursuing court action, for example Judicial review requires to be lodged in court of session and an advocate is needed

Advice and Assistance and Civil Legal Aid should be available:

Current figures for Advice and Assistance are disposable income of less than £245 and disposable capital of less than £1,716. 

Civil Legal Aid figures are disposable income of £26 239 and capital of £13,017

Allowances made for dependants and disregards to capital for Pensioners

Eligibility Estimator for CLA  is available at http://www.slab.org.uk/Online_calculators.html