Solutions for Public Bodies Event: Spotlight on Complaints Handling - PowerPoint PPT Presentation

Solutions for Public Bodies Event: Spotlight on Complaints Handling

A guide to best practice Emily Carter, Partner kingsleynapley.co.uk

Features of an effective complaints system 1. Fair and impartial 2. Accessible and simple 3. Timely, effective and consistent 4. Transparent and accountable 5. Delivering consistent improvement kingsleynapley.co.uk

2. Accessible and simple “ The PALS office is run on the basis that 90% of people will just become so frustrated and worn out by the complaints process that eventually they give up ” (Patient at Mid Staffordshire NHS Trust) • Making complaining easy • What is a “complaint”? • Managing expectations – who, where, when, what and how? kingsleynapley.co.uk

3. Timely, effective and consistent Layers of complaints handling • One, two, three or four stage complaints handling? • Key steps: 1. Informal resolution 2. Internal investigation 3. Independent review kingsleynapley.co.uk

3. Timely, effective and consistent Effective resolution • Careful listening • Effective investigation • Informed apologies Consistency • Consistency of result depends upon consistency of process kingsleynapley.co.uk

4. Transparency and accountability • Creation of a complete central record of complaints • Publication of: > The complaints process > Outcomes of the process > Measures of an effective process • External monitoring of the process kingsleynapley.co.uk

5. Delivering consistent improvement “ Learning from complaints is a powerful way of helping to improve public service, enhancing the reputation of a public body and increasing trust among the people using the service.” PHSO Principles of Good Complaints Handling • An important source of information concerning the health of organisation • Data collection and collation • The right people considering the right information kingsleynapley.co.uk

Fairness and avoiding judicial review Sophie Kemp, Associate kingsleynapley.co.uk

A fine balance to be struck • A complaints process must be fair but it should not be a burden kingsleynapley.co.uk

A duty to act fairly • The “duty to act fairly” broadly requires: > A right to be ‘heard’ ( Ridge v Baldwin [1964] A.C. 40) > A lack of bias ( Porter v Magill [2002] 2 AC 357 ) > A decision based on evidence submitted by the parties ( Ex p. Clatworthy [1985] 3 All ER) • Unless a civil right or obligation is at stake, Article 6(1) will not apply • The duty to act fairly will often, but not necessarily imply an obligation to give reasons (Ex p. Cunningham [1992] 2 ICR 816) kingsleynapley.co.uk

What is “the right to be heard”? • The right to be heard is flexible and depends on the context (Bushell v Secretary of State for Environment [1981] A.C. 75) , but generally: > A person is to be given an opportunity to respond to an allegation (both sides); > A person’s response is received and considered before a decision is made; > A person receives relevant information before preparing their response. • In particular circumstances, where an important right or issue is at stake, fairness may require: > A person to be allowed legal representation; (R(G) v X School Governors[2011] UKSC 30) > The calling and cross-examination of witnesses; (R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) > An oral hearing. ( Lloyd v. McMahon [1987] 1 AC 625) kingsleynapley.co.uk

Procedural fairness in practice: investigations into complaints • A complainant should have the opportunity to put their case in writing; • Information should be obtained from relevant parties, including those complained against, as both sides should be heard where facts are in dispute; • Investigate before making a decision; • Carry out the investigation promptly. • Best practice : “investigate once, investigate well” kingsleynapley.co.uk

Procedural fairness in practice: how many stages should a complaints process have? • The duty to act fairly does not imply a set number of stages. • A three stage approach: > Stage 1: Informal resolution > Stage 2: Investigation > Stage 3: Appeal / independent review » External review is not required although now common » Hallmark of best practice kingsleynapley.co.uk

Procedural fairness in practice: threshold tests • A threshold test is a test for referral. • It may be applied at any stage, but is usually utilised when determining whether there should be an independent review. • Example from the new BBC complaints procedure: > Does the appeal raise a “matter of substance”; > Is it appropriate, proportionate and cost-effective to consider the appeal? kingsleynapley.co.uk

Procedural fairness in practice: vexatious complainants • It is unfair to those with genuine complaints for an organisation to be burdened by vexatious complainants. • Section 42 of the Senior Courts Act 1981 defines a vexatious litigant as someone who has litigated "habitually and persistently and without any reasonable ground.” • A vexatious complaint may be described as trivial, hypothetical, repetitious or otherwise vexatious. • Consider using a clear and published policy to say that complaints from vexatious complainants will not be considered. • Safeguards : Allow a complainant to ask for an independent review or carry out monitoring of complaints characterised as vexatious kingsleynapley.co.uk

Review of complaint handling by the Administrative Court • Decisions of Ombudsman Services, Independent Adjudicators and the Independent Police Complaints Commission (“the IPCC”) • The cases consider: > Is the decision amenable to JR? > Refusal by the courts to intervene > The circumstances in which the court will intervene? • WARNING : context is everything! kingsleynapley.co.uk

Is the decision amenable to JR? • There is no single test for determining amenability to judicial review, however key considerations are: > Whether a defendant is a public body exercising statutory powers; > Whether the function being performed is a public or private one; > Whether the defendant was performing a public duty owed to the claimant. ( R(Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57 ) kingsleynapley.co.uk

Refusal by the court to intervene • Judicial review of Ombudsman schemes is rare because: > “It is no part of the court's job to start to investigate mal - administration” ( R (Sharma) v Parliamentary and Health Service Ombudsman [2011] EWHC 2609 (Admin)) > There is a very wide discretion as to what and how an Ombudsman investigates ( R (Sharma) v Parliamentary and Health Service Ombudsman [2011] EWHC 2609 (Admin )) kingsleynapley.co.uk

Refusal by the court to intervene: Examples • Where an Adjudicator refused to investigate or make findings about disability discrimination the court held that it was not entitled to impose a requirement on an informal complaints review procedure that it should have to adjudicate on issues involving contested law and facts. ( R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1236 ) • Where a decision maker has a particular expertise and is given a wide discretion, such as the Financial Ombudsman, it will be difficult to establish that a particular decision was irrational. ( R (Green) v The Financial Ombudsman Service Ltd [2012] EWHC 1253) kingsleynapley.co.uk

In what circumstances will the court intervene? • Where an Independent Adjudicator fails to consider a complaint rationally, fairly (and lawfully); the court will also intervene where a scant or inappropriate consideration of a complaint could not fairly be described as a review. ( R (Siborurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365 ) • Where the Ombudsman investigates and reports on issues which lie outside the scope of the original complaint and response to it. ( Cavanagh v Health Service Commissioner [2011] EWHC 2609 ) • Where the Ombudsman misdirects him/herself of the legal test to be applied when considering a complaint. ( Atwood v Health Service Commissioner [2008] EWHC 2315 ) kingsleynapley.co.uk

In what circumstances will the court intervene? Cont… • Where the Ombudsman failed to consider a relevant fact (a local authority fettering its discretion). ( ex parte Balchin [1998] 1 PLR 1 ) • Where the Ombudsman provided inadequate reasons for refusing to conduct an inquiry and refused to disclose interview notes. ( R (Turpin) v Commissioner for Local Administration [2001] EWHC Admin 503 ) • Ombudsman should give sensible consideration to focused requests from a complainant for potentially relevant documents. ( R (Kay) v Health Service Commissioner [2009] EWCA Civ 732 ) kingsleynapley.co.uk

Complaints and equality Adam Chapman, Partner kingsleynapley.co.uk

Equality Act 2010 Section 149 (1) “ A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it ” kingsleynapley.co.uk