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 services could be about not getting a community care assessment or, in your view, the right care services.
If you have been waiting a long time for a service or feel that an incorrect decision has been made about your care, then you can make this known to the NHS or your social 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 will tell you a bit about some of the complaints procedures you can use.
Social services complaints
If you’re happy with the local authority but have a problem with the service you’re receiving, such as having a home help visit, 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.
The complaints procedure for services that children receive from local authorities is a three-stage process. This process is detailed in the Representations Procedure (Children) (Wales) Regulations 2005 and accompanying statutory guidance ‘Listening and learning: a guide to handling complaints and representations in local authority social services in Wales’ (Welsh Assembly, 2006).
This is the ‘informal local resolution’ stage. This is where the manager who is responsible for the service you have complained about looks into the complaint and aims to respond to you within ten working days. With some complex complaints, the manager can respond to you within 20 working days.
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.)
What if I am not happy with the response to my stage 1 complaint?
Within 20 working days of receiving a stage 1 response, you can write to the complaints manager and ask that the complaint go to the second stage of the process – the ‘formal investigation’ stage. Your complaint will then be investigated in more depth with the involvement of an independent person. This time, you should get a response within 25 working days (or for complex cases, within 65 working days).
What if I am not happy with the response to my stage 2 complaint?
If you are not satisfied with a stage 2 response, you can ask for the complaint go to stage 3 – the ‘review panel’ stage. You must make this request within 20 working days of receiving the stage 2 response.
What happens at stage 3?
At stage 3, the review panel 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 30 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 – am ombudsman or judicial review.
Public Services Ombudsman for Wales
The Public Services Ombudsman for Wales (PSOW) deals with complaints about local authorities (eg social services). The PSOW is a free, independent organisation 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 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 PSOW, your complaint must be made within 12 months of the incident occurring. In most cases, the PSOW will only investigate your complaint after you have followed the complaints procedure for adults or children but not had a satisfactory response. If you have already put in a complaint to your social services department but have waited almost 12 months for a reply, you can contact the PSOW on the basis of a delayed response.
The PSOW has wide investigative powers and can look at all council documents. After the investigation, they can also make policy recommendations and arrange for compensation to be made to the complainant. If a report is written, it has to be made public by the local authority; however your details remain confidential.
The PSOW can only be used if no other complaints method is being used, eg a judicial review. You can contact an ombudsman by using an application form (ask for a copy from the ombudsman’s office).
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.
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.
Time limits for making a complaint
You should make your complaint as soon as possible. The time limit for complaints made in Wales 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.
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.
If after the agreed amount of time you do not receive a full response (without being informed why) or you are not satisfied with the response, you can make a request to have an independent review of your complaint carried out by the Independent Complaints Secretariat. Your request for an Independent Review will have to be made in writing within 28 working days of receiving the local resolution response.
The independent review may consist of further investigation at the local resolution stage or the setting up of an independent review panel where you will have the opportunity to discuss the complaint with a panel of (usually) three independent lay people.
If you are unhappy with the final response you receive from the Independent review or you have waited longer for a response than expected or what was agreed (without being told why), you can ask the 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 Independent Review 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 (www.adviceguide.org.uk) 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.
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 Public Services 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. You can check if you can get legal aid at www.gov.uk/check-legal-aid
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.
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 6 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.
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.
Community Health Councils (CHCs)
CHCs work to enhance and improve the quality of Welsh NHS services. They are your statutory and independent voice in local health services provided throughout Wales. The key function of CHCs is to represent the interests of the public in their district and provide a free and independent advocacy service that offers confidential support, advice and guidance for those wishing to make a complaint against the NHS. To find out your local CHC, contact the Board of Community Health Councils in Wales on 0845 644 7814 or 02920 235 558, or visit www.communityhealthcouncils.org.uk
Model template letter
We have a model template letter for making a complaint.
Where to go for further advice
National Autistic Society Community Care Service
Tel: you can book a telephone appointment by calling the NAS Autism Helpline, on 0808 800 4104, lines are open Monday to Friday, 10am to 4pm.
If you need support with writing letters or finding out about your rights a good first port of call is your local Citizens Advice Bureau. You can contact them on 08454 040506.
Putting Things Right
Find your local Community Health Council by contacting:
Board of Community Health Councils in Wales
Tel: 0845 6447814
Public Service Ombudsman for Wales
Tel: 0845 6010987