Everyone has a right to complain if they are not happy with the standard of a care service they receive. Care services may be provided by the NHS or your local social services department.

A complaint to the NHS could be about being refused a referral to a diagnostician by your GP, or being refused assessment by NHS diagnosticians. A complaint to social work services could be about not getting an assessment or, in your view, the right care services for your child.

If you have been waiting a long time for a service or feel that an incorrect decision has been made about your child’s care, then you can make this known to the NHS or your social work services department. The organisation will investigate and attempt to put things right

There are several ways of trying to resolve problems and there is also help available. This information sheet will tell you a bit about some of the complaints procedures you can use.


Complaints about social work services

If you’re happy with the local authority but have a problem with the service you’re receiving…

If you’re receiving a service such as having a home help visit and you’re unhappy with it you should complain to the person who manages that service as well as to the local authority. If your child is attending a residential service such as a children’s home then the organisation that runs the home will have a complaints procedure that you’re entitled to see. If you feel your complaint isn’t being listened to, then whoever is responsible for managing your care package from within the local authority should also be informed.

Complaints procedure

Each local authority will have their own complaints procedure. You should ask your social worker or someone at the social work department to send you a copy of this. All complaints procedures are slightly different but they all divide up into informal and formal stages.

The complaints procedure for services that children receive from local authorities is a three-stage process. This process is detailed in the

At Stage 1 (the informal) stage you need to let someone at your social work department know that there is something wrong. You can make either a verbal or a written complaint to them, although it is advisable to put the complaint in writing or keep a note of your complaint if you use the telephone. An informal complaint can be made to any officer at the social work department and they should try and sort out the problem.

Occasionally a mediation meeting between you, the manager concerned and the complaints manager is offered. This meeting is an opportunity to talk about the complaint and resolve it in person. However, you do not have to go to the meeting and if you do, you do not have to agree to anything. If you decide to go to the meeting, you can usually take an advocate with you for support (more about advocates further on).

You can skip the informal stage if you feel your complaint is serious and needs to be investigated urgently. In particular, if you feel you or your child need help urgently and that it is not being offered.

What if I am not happy with the response to my stage 1 complaint?

If the problem is not resolved at an informal level, you can make a formal complaint. At stage 2 (the formal complaint stage), you will need to speak to someone who is higher up within your local authority (such as the Director of Social Work). They will then arrange for your complaint to be investigated and send you an acknowledgement within five working days. Once a formal complaint has been made, the social work department has to investigate the matter within 28 days.

What if I am not happy with the response to my stage 2 complaint?

If you are still not satisfied or the problem is still not resolved, you can request a review hearing before a Complaints Review Committee. This is a panel who can re-examine the decision the local authority made when they investigated your complaint.

What happens at stage 3?

At stage 3, the complaints review committee stage, the complaints manager will ask a panel of three independent people to discuss whether the complaint investigation and results were fair. The complaints manager has to do this within 56 working days of receiving your request for a complaint to go to stage 3.

Is there anything else I should know?

Keep copies of all the letters you send to the complaints manager and only ever send copies of important supporting documents. Try not to send the original documents. If you have attempted to resolve an issue through the complaints process but have not had a satisfactory resolution, you have two options – the Scottish public Services Ombudsman or judicial review.


Scottish Public Services Ombudsman (SPSO)

The SPSO is a free, independent organisation that investigates complaints against local authorities and NHS trusts by looking into maladministration that has caused injustice. Maladministration is where the correct procedures and considerations in setting up a service, delivering a service or making decisions have not been kept to. This would have resulted in injustice to the person who needed help.

Examples of maladministration include unreasonable delay, unfairness, failure to follow procedure and poor methods of making decisions. If you are approaching the SPSO, your complaint must be made within 12 months of the incident occurring.

In most cases, the SPSO will only investigate your complaint after you have followed the complaints procedure but not had a satisfactory response. You can also contact the SPSO on the basis of a delayed response. The SPSO has wide investigative powers and can look at all social work and NHS documents. After the investigation, they can also make policy recommendations and arrange for compensation to be made to the complainant.

Contacting an ombudsman

You can contact an ombudsman by using an application form (ask for a copy from the ombudsman’s office). Or you can contact them with the following information:

  • the name and address of the person making the complaint
  • the name and address of the organisation the complaint is being made about
  • details of what the complaint is about, that is, what did the organisation do wrong or fail to do?
  • what personal injustice, financial loss or hardship was suffered
  • what the organisation should do to put the situation right
  • details of how the complaint has been dealt with before you contacted the ombudsman
  • the date when you first identified the problem you are complaining about.

You should also send copies of any relevant paperwork connected to your complaint.


Judicial review

Judicial review is where the courts apply the law to actions and decisions made by public bodies, and determine whether they are acting lawfully or not. A public body would be acting unlawfully if its decisions are illegal, irrational or unfair. Judicial review is the only way to resolve care-related issues in court. In Scotland judicial reviews are heard in the Court of Session. Judicial review can look into whether the correct procedure has been followed to reach a decision. It can then change a decision if it decides that it was wrong. However, judicial review cannot be used simply to appeal against a decision.

A case appropriate for judicial review has to be brought to court within three months of:

  • the event that you are complaining about happening
  • a decision being made about your complaint.

Therefore, as soon as it is decided that judicial review is the suitable way of resolving an issue, apply for the review through a solicitor.

Does the judicial review process have a cost?

The general rule of legal costs is that the side that loses the claim must pay both their own and the winning side’s costs. The charges will depend on how far the case has progressed.

A ‘letter before action’ from a solicitor can sometimes encourage the public body to put matters right. This could save money and time. If you are considering judicial review, you may be eligible for legal aid. Legal aid is funding from the Government to help people access the courts and resolve disputes. Legal aid helps with the costs of legal advice and representation. Eligibility will depend on the type of problem, your income and capital (savings, properties etc), and whether there is a possibility of you winning the case.


NHS Complaints

Time limits for making a complaint

You should make your complaint as soon as possible. The time limit for complaints made in
Scotland is usually six months from when the matter occurred, or from when you became aware of the problem. These time limits can be overlooked if it would be unreasonable to expect you to have complained within the suggested time limit, for example because of grief or trauma. However, it must still be possible to investigate the complaint.

You cannot use the NHS complaints system to get any financial compensation. If you are seeking financial compensation you will need to get independent legal advice. Use the Autism Services Directory to find solicitors with an understanding of autism, or contact the NAS Autism Helpline (0808 800 4104).

Resolving complaints locally

You should always try and resolve your complaint through your local service’s own complaints procedure in the first instance. Contact the health practice, hospital or NHS Trust concerned (we’ll refer to them as ‘services’ from now on) and ask for a copy of their complaints procedure. You should also ask why you have been refused a referral or assessment and whether the decision is based on clinical or financial grounds. You could request this information over the phone or in writing. Additionally it might be useful to ask for access to your child’s medical records, under the Access to Health Records Act 1990.

Complaints about any service provided by the NHS should be addressed to the Chief Executive of the NHS Trust, the Complaints Manager or to whoever is stated as the appropriate contact in the service’s complaints procedure. A large service will probably have a designated person who deals with complaints but smaller services may not. If the complaints procedure does not state who to address the complaint to, you should address it to the Chief Executive of the relevant NHS Trust (who may not deal with the complaint directly but would forward it to the most relevant person) or the Complaints Manager.

State that you expect acknowledgement of your letter and a response within the stated time frame.

You may be invited to a meeting with the relevant staff involved in the matter to discuss the complaint but you don’t have to go if you don’t want to. Instead, you can ask for all contact to be in writing. You should be informed of how the complaint will be handled and when you can expect to receive a full response.
Hopefully your complaint will be resolved at this level.


Independent investigation

If you are unhappy with the final response you receive from the local resolution or you have waited longer for a response than expected or what was agreed (without being told why), you can ask the Scottish Public Services Ombudsman to investigate the matter.

Referral to an ombudsman

The ombudsman is a free, independent service that investigates complaints against local authorities by looking into maladministration that has caused injustice. Maladministration is where the correct procedures and considerations in setting up a service, delivering a service or making decisions have not been upheld. This maladministration may have resulted in injustice to the person who needed help.

Maladministration can include delays, unsatisfactory responses and errors in clinical practices, so the ombudsman can investigate complaints about treatments, wrong advice, incorrect diagnosis, etc.
A referral to the ombudsman usually has to be made within 12 months of the local resolution response being received. Most of the offices of the ombudsmen provide an application form for making a complaint.

You should also send copies of any relevant paperwork involved in the complaint. The Citizen’s Advice
Bureau has more information about this on its website or you can visit your local Citizens Advice Bureau and speak to someone. Your local Citizens Advice Bureau will be listed in the telephone directory or Yellow Pages.

Judicial review

A judicial review is not an appeal. It does not involve deciding whether the right or wrong decision was made but whether the correct legal basis has been used to make it. A court cannot decide what action an NHS service should take. Sometimes, the result of a judicial review may mean that the same decision can be made again, as long as it is done in a lawful way.

A judicial review must take place within three months of the incident occurring. If the Parliamentary and Health Service Ombudsman is going to be investigating your case, the case cannot go to judicial review.

If you are considering judicial review, you may be eligible for legal aid. Legal aid is funding from the Government to help people access the courts and resolve disputes. Legal aid helps with the costs of legal advice and representation. Your eligibility will depend on the type of problem, your income and capital (savings, properties etc), and whether there is a possibility of you winning the case. Find out more about eligibility for legal aid at www.slab.org.uk

You can find out more about judicial review at www.publiclawproject.org.uk/resources/117/what-is-judicial-review

Taking legal action

Taking legal action against the NHS can be costly and complex. You should ask a solicitor for professional advice if you decide to do this. Use the Autism Services Directory to find solicitors with an understanding of autism, or contact the NAS Autism Helpline (0808 800 4104).

European Court of Human Rights

The Human Rights Act 1998 makes it unlawful for public bodies to act in such a way as to violate a person’s ‘convention rights’. Convention rights include: 

  • Article 2: the right to life,
  • Article 6: the right to a fair hearing and 
  • Article 8: the right to respect private life, family and home life. 
The person making the complaint must allege a violation of at least one of the principal Articles of the Convention of Human Rights 1950.

A complaint can only be made to this court  once you have gone through all other complaint procedures, and the complaint must be made within six months of the final decision made by the last and highest domestic court or authority. 

If you think a local authority decision has breached your rights under the Human Rights Act you should seek specialist legal advice.


Help with the complaints process

Going through the complaints process can be quite stressful and difficult, but there are people that can help.

Advocates

If you are about to make a complaint, advocates can help you explore the options you have. For example, they can advise you on whether it would be best to go through the complaints procedure or whether the situation is too serious and urgent – in which case judicial review may be the best option. Advocates can also help you write letters, contact third parties on your behalf for information, and accompany you to meetings to support you. Advocates are on your side. They work on your behalf and their aim is to achieve whatever it is that you want to achieve. They make sure that your voice is heard and that your opinions are taken seriously. Use the Autism Services Directory to find advocacy services in your area.

Health Rights Information Scotland (HRIS)

HRIS provides people with information about their health rights and about the health services that are available from the NHS in Scotland.

Model template letter

Use our model template letter for making a complaint.


Where to go for further advice

Citizens Advice Scotland
Spectrum House
2 Powderhall Road
Edinburgh EH7 4GB
Tel: 0131 550 1000
Fax: 0131 550 1001
Email: info@cas.org.uk
Website: www.cas.org.uk

Scottish Public Services Ombudsman
4 Melville Street
Edinburgh EH3 7NS
Tel: 0800 377 7330
Email: ask@spso.org.uk
Website: www.spso.org.uk

Scottish Association of Law Centres
C/o Govan Law Centre
47 Burleigh Street
Govan
Glasgow G15 8TE
Tel: 0141 440 2503
Email: m@govanlc.com
Website: www.govanlc.com

Law Society of Scotland
LP1 - Edinburgh
26 Drumsheugh Gardens
Edinburgh EH3 7YR
Tel: 0131 226 7411
Fax: 0131 225 2934
Email: lawscot@lawscot.org.uk
Website: www.lawscot.org.uk (includes online list of solicitors)

Patient Advice and Support Service
Website: www.patientadvicescotland.org.uk

Care Inspectorate
Tel: 0845 600 9527
Email: enquiries@careinspectorate.com
Website: www.careinspectorate.com

Health Rights Information Scotland
Health Information Services
NHS 24
Golden Jubilee National Hospital
Beardmore Street
Clydebank G81 4HX
By email: nhs.inform@nhs24.scot.nhs.uk
Website: www.hris.org.uk
If your enquiry is about health rights call the NHS inform Helpline on 0800 22 44 88.