Management of complaints by others for an aggrieved person

Reference 238322 | October 2015

I am writing further to your request of 22 October 2015 in which you asked for information about the circumstances in which we would allow a complaint to be made by a suitable person on behalf of the aggrieved, if the person was unable to act for himself. In particular you want to know how we would define the terms “unable to act for himself” or “suitable person” for the purposes of our legislation.

You also asked in a follow-up request made on 31 October 2015 who we would consider to be an “aggrieved person” for the purposes of our legislation, and whether we would refuse to allow a person who has been authorised by the complainant to be a representative.

I have considered your request under the Freedom of Information Act 2000 and can confirm that we hold the information you have requested. See below for my responses to your particular questions. The following documents contain information on the circumstances where a person may be considered “unable to act” for themselves and whether or not someone is a suitable complainant: 

  • Briefing Note – Who is a suitable complainant?
  • Briefing Note – When may someone complain for or represent someone else
  • Enquiry and Assessment Manual 4.0 (particularly paragraph 47-54)

I have attached the Enquiry and Assessment Manual 4.0.

Please note that on 18 November 2015 we disclosed both briefing notes to you in response to your previous information request (FDN-238321).

  1. Unable to act for themselves

A person may only be considered “unable to act” for themselves if they are incapable of bringing his/her own complaint. If the aggrieved is an adult, mentally competent and not otherwise unable to bringing a complaint then they are the complainant and we cannot take a complaint on their behalf from anyone else.

Someone may be "unable to act" for themselves because of mental or physical incapacity.  There may be other circumstances such as where someone is unreachable though perhaps alive. The Ombudsman has the discretion to decide whether a person is unable to act for themselves. It should be noted that people may be incapable in some areas of their life but capable in others. Legal questions often arise in this area and caseworkers should seek advice from the legal team if they are unsure about such matters as the legal significance of the evidence which has been presented.

In deciding whether to accept that a person is unable to act for themselves, we must also consider whether or not we require evidence of this. Our legislation does not require proof that a person cannot act for themselves. However we are entitled to ask for evidence that we consider to be reasonable. We may need to take particular care if we have not seen any evidence that a person is unable to act for themselves, or if there is anything else which raised concerns. Again, the Ombudsman will usually have some discretion on this matter.

Generally we should ask for some independent evidence that a person is incapable bringing his/her own complaint, as we need to be reasonably satisfied that this is the case. We may need to seek additional information by looking at the medical records and/or by getting our own advice from an independent advisor. 

An example where we may considered whether or not a person is unable to act for themselves is where the aggrieved is a child. Whether or not a child is capable bringing his/her own complaint is not solely determined by their age, but also their level maturity. As a rule of thumb, a child over the age of 16 should be treated as competent unless there is evidence to the contrary, but younger teenagers may also be capable of making these decisions themselves.

You have asked whether we would consider a person as being unable to act for themselves if the person:

  • is not properly educated
  • person is very busy, or
  • is unhealthy or too old even though he is mentally capable.

As discussed above, we would only consider a person “unable to act” for themselves if they were incapable of bringing his/her own complaint. For this reason, it is unlikely that we would accept that a person is unable to act for themselves on the basis that they are not properly educated, or that they are very busy. A mentally capable person who is unhealthy or old may be considered unable to act for themselves if they were physically incapable of bringing their own complaint. It is likely that we would ask for independent evidence of the level of this incapacity.

Even if a person is considered capable of bringing their own complaint, they can choose to authorise someone to represent them for all or part of a complaints process. We discussed a complainant authorising another person to act on their behalf in our response to your previous information request and I direct you to that response. A particularly relevant example from our briefing note: ‘When may someone complain for or represent someone else’ is a person representing a complainant who is, “handicapped by inexperience or lack of education”.

  1. Suitable complainant

First of all, the issue of whether someone is a suitable complainant only arises when the aggrieved is incapable of bringing his/her own complaint. This is discussed above and in the briefing note ‘When may someone complain for or represent someone else’.

If we are satisfied that the aggrieved cannot complain for themselves, we have to decide whether the complainant is suitable. The considerations are similar to those taken into account in determining whether it would be appropriate to allow a person to act as a representative (see our response to your previous information request), and include:

  • whether there is any conflict of interest
  • whether there is any evidence to suggest that the aggrieved person wouldn’t want the complainant to have access to confidential information about them
  • whether there is any suggestion that the complainant is not acting in the best interests of the aggrieved.

Determining whether or not a person is a suitable complainant is a decision for us to reach on reasonable grounds. Generally, evidence of a conflict or potential conflict of interest between the aggrieved and the complainant would indicate that the complainant may not be suitable, for example:

  • a parent accused of child abuse complaining about actions of the Trust in child protection matters where the aim is to have the child returned
  • a relative challenging action by Trust in respect of vulnerable adult where the relative (or another close relative) has been accused of financial abuse.

There may be lots of other reasons for lack of suitability; this will vary from case to case. It is not of itself a legal issue, but one based on individual facts. This may include whether or not the person has sufficient knowledge of the case. However this is not determinative and will depend on the facts, such as the complexity of the case and whether the person will be able to adequately represent the aggrieved.

  1. Aggrieved person

For the purposes of our legislation, an “aggrieved person” is the person claiming to have sustained the injustice (or hardship) in consequence of maladministration (or service failure).

We have interpreted what constitutes an injustice quite broadly. At times we have accepted ‘outrage’ as a valid injustice. The courts recognise that 'outrage' at poor public services is a legitimate injustice for people to complain to the Ombudsman about. Therefore we can look at complaints where the person complaining might not have been directly impacted by the relevant action or failure.

You have given an example of a situation where family members and friends of a patient witnessed the patient experiencing acute pain. Depending on the particular circumstances of the case, we may consider the family members and friends to have suffered an injustice about which they could complain to the Ombudsman.

This can raise questions about whether a complaint involves a legitimate concern, or is what amounts to commentary from a 'busybody' (a term taken from the explanatory notes to the PCA Bill). 

Our approach is as follows:

  • the larger the scale of the alleged unreasonable behaviour or poor services, the less connected the member of the person complaining needs to be to it, and
  • vice versa, the small the scale of the alleged unreasonable behaviour or poor service, the closer the person needs to be to it.

If it is not made clear from the complaint, we will ask a complainant how they have been affected by the matters they are complaining about. Often those who are outraged or generally dissatisfied will explain.

  1. Whether PHSO can refuse to allow a person to be a representative, even though they have authorisation from the complainant

As we have explained in our response to your previous request, the Ombudsman has the discretion to determine whether to allow a person to act as a representative on behalf of a complainant. We must have appropriate authorisation from the complainant for the representative to act on their behalf or to receive correspondence. However this is not determinative as to whether we would allow them to act as a representative.

The provisions to which you have referred enable the Ombudsman to allow many different kinds of representation, including by counsel or a solicitor. The Ombudsman has the discretion to allow both legal representation and lay representation. For example a vulnerable person may choose to be represented in their complaint by a solicitor, or a social services staff member.

Conversely, the Ombudsman also has the discretion to refuse to allow any kind of representation. As discussed above and in my response to your previous request, there are a number of reasons why we may refuse to allow a person to act as a representative, regardless of the capacity in which that person is acting.

You have also referred to circumstance in which an MP or local counsellor helps a person in making a complaint, and whether we would refuse to allow them to act as a representative. An MP or local counsellor can act as a representative on behalf of a complainant with the appropriate authorisation. As with any other kind of representation the Ombudsman also has the discretion as to whether or not to allow them to act on behalf of the complainant.

It should be noted that a complaint under the Parliamentary Commissioner Act 1967 must be made via a written complaint to an MP. In these cases we provide the MP with a copy of the final report and in some cases provide them with updates on the progress of the investigation.

I hope the information I have provided is helpful. If you have any further queries, or would like to ask for a review of my decision, you can do so by writing to foiofficer@ombudsman.org.uk

If you still have concerns after that, you can ask the Information Commissioner’s Office to look into your case. Their contact details are available on their website.

Yours sincerely,

FOI/DP Officer