Annex A – The determination of complaints by the Health Service Ombudsman and the Local Government Ombudsman
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Remits and powers
The Health Service Ombudsman’s remit
- By virtue of the Health Service Commissioners Act 1993, the Health Service Ombudsman is empowered to investigate complaints against the NHS in England. In doing so she considers whether a complainant has suffered injustice or hardship in consequence of a failure in a service provided by bodies such as the NHS Trust, a failure to provide a service it was empowered to provide, or maladministration in respect of any other action by, or on behalf of, the NHS Trust.
- She may carry out an investigation in any manner which, to her, seems appropriate in the circumstances of the case and may make such enquiries and obtain information from such persons as she thinks fit. If the Ombudsman finds that service failure or maladministration has resulted in an injustice, she will uphold the complaint. If the resulting injustice is unremedied, in line with her Principles for Remedy1 (Annex B, paragraphs 7 and 8), she may recommend redress to remedy any injustice she has found.
The Health Service Ombudsman – premature complaints
- Section 4(5) of the Health Service Commissioners Act 1993 states that the Health Service Ombudsman may not generally investigate a complaint until the NHS complaints process has been exhausted, and this is the approach taken by the Health Service Ombudsman in the majority of NHS complaints made to her. If, in the particular circumstances of any case, the Health Service Ombudsman considers that it is not reasonable to expect the complainant to have followed the NHS route, she may accept the case for investigation notwithstanding that the complaint has not been dealt with under the NHS complaints process. This is a matter for the Health Service Ombudsman’s discretion after proper consideration of the facts.
- In this instance, Mr K’s complaint was directly referred by the Healthcare Commission (which at the time oversaw the second stage of the NHS complaints procedure) to the Health Service Ombudsman for consideration because Mr K had also complained to the Local Government Ombudsman about the service provided by the Council.
The Local Government Ombudsman’s remit
- Under Part III of the Local Government Act 1974, the Local Government Ombudsman has wide discretion to investigate complaints of injustice arising from maladministration by local authorities (councils) and certain other public bodies. She may investigate complaints about most council matters, including social services and the provision of social care.
- If the Local Government Ombudsman finds that maladministration has resulted in an unremedied injustice, she may recommend redress to remedy any injustice she has found.
Powers to investigate and report jointly
- The Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007 clarified the powers of the Health Service Ombudsman and the Local Government Ombudsman, with the consent of the complainant, to share information, carry out joint investigations and produce joint reports in respect of complaints which fell within the remit of both Ombudsmen.
- In this case, the Ombudsmen agreed to work together because the health and social care issues were so closely linked. A co-ordinated response consisting of a joint investigation leading to the production of a joint conclusion and proposed remedy in one report seemed the most appropriate way forward.
Footnotes
- «Principles for Remedy is available on www.ombudsman.org.uk.
