Who can complain?
Section 26A
Section 26A defines who can complain
It allows complaints to be made on someone's behalf if the person has given written authority to do so. There appears to be no restriction on the kind of body that can complain on someone's behalf. (See examples on representation.) The complainant must claim to have sustained injustice.
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Member of the public
“A member of the public” means a person not part of the council.
A member of the public would not include:
- a councillor complaining in his/her position as a councillor, eg that he or she was not put on a sub-committee, was not allowed to speak at a council meeting or in respect of any action taken by the council in respect of an alleged breach of the code of conduct; or
- a council employee such as a residential social worker complaining about poor management in a home.
A member of the public would include a councillor or council employee who complains about repairs to his or her own council flat or about some other service received in his or her own individual capacity.
Complaints “on behalf of” members of the public may be made with their consent by a wide range of people or organisations:
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Solicitor or law centre
There is no need to check that the complaint is really the complainant’s unless there is a reason to suspect otherwise. Such a check should be made if, for example, a law centre may be using the complaint as a weapon to attack the council, or solicitors are using a client’s name to make a complaint because they have been unable to recover costs. A solicitor should also be asked to confirm that there is no statutory charge in existence in respect of legal aid as this is likely to be paid from any financial remedy recommended.
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MP
It is usually unnecessary to check that an MP is acting properly in sending complaints to the Ombudsman.
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Representation of children
Parents are generally suitable persons to make complaints on behalf of young children so long as there is not a conflict of interest. Likewise, subject to there being no conflict, grandparents will generally be suitable, but in these cases checks should usually be made with the parents of the child. An investigator should always consider and keep under review whether parents or grandparents are acting in the interests of their child/grandchild and not principally in their own interests. For example, the parent or grandparent may be intent on clearing his or her name in relation to events affecting the child, but further investigation of these matters might cause the child significant harm or trauma. Initially, the investigator should check the position by asking the parent/grandparent to confirm in writing that the child has either authorised the parent/grandparent to make the complaint on his/her behalf or that he/she lacks the capacity to do so. This may be because the child or grandchild does not understand the complaints process. The need for further enquiries of the parent/grandparent, child or other responsible person with knowledge of the child must be assessed on the particular facts of the case.
When a complaint is made on behalf of an older child/grandchild, the investigator should consider whether the child wishes a complaint to be made. It is difficult to set an age as each child will be different, but as a general rule children/grandchildren of 14 and above should be contacted. But there may be reasons to contact a younger child/grandchild. Where a meeting with the child/grandchild is considered necessary it will normally be appropriate for there to be a responsible adult present.
Parents/grandparents may have a complaint about their own injustice.
Should investigators remain dissatisfied after appropriate checks then it may be necessary to terminate under Ombudsman’s discretion.
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Representation of elderly people
Elderly people may be assisted by relatives or friends who make complaints on their behalf. The points made above about possible conflicts and the need for checks also apply here.
If there is any reason to believe the complainant is not acting with consent, the written consent of the elderly person should be obtained. The absence of written consent or if there is still concern about authority might call for a visit to the elderly person.
Relatives of friends may have a complaint about their own injustice. This might be investigated separately, in addition to or instead of a complaint on behalf of the elderly person.
Should investigators remain dissatisfied after appropriate checks then it may be necessary to terminate under s24A.
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Voluntary organisations
The Ombudsmen consider that voluntary organisations are suitable to make complaints on behalf of vulnerable people whose general interest they represent eg children, elderly or disabled persons.
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Landlords acting on behalf of tenants
A landlord can make a complaint on the tenant’s behalf, but it is particularly important to be sure the landlord has the tenant’s consent to do so and that there is no conflict of interest.
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Other agents
Checks should be made to establish why the complainant is unable to act for him/herself.
In addition to private individuals a complaint may be made by other bodies such as a partnership, limited company, club, residents’ association etc. (See examples on complaints from bodies of people).
- A housing association (like any other landlord) may complain in its own right.
- A parish council or a board of governors of a school within the public sector cannot make a complaint in their own right.
- When rejecting a complaint by an authority constituted for public service/local government purposes (such as a parish council or board of governors), which appears to have some substance, investigators should mention that a similar complaint might be considered from an affected individual.
- Where the complaint has died or is unable to act, the complaint may be made by his personal representative (if any), or by a person who appears to a Local Commissioner to be suitable to represent him. (See examples).
- Where a person claims to be a personal representative of someone who has died, checks should be made to find out whether this is a formal appointment. In the case of a deceased person who left a will, the named executors are the personal representatives who are given their authority to deal with the deceased’s estate by the Grant of Probate (GoP). If the deceased person did not leave a will he or she died “intestate”. In these cases Letters of Administration to the Estate (LoA) of the deceased is the document which gives authority to act to whoever is named as the deceased’s personal representatives. Both the GoP and the LoA are formal documents issued by the Probate Registry.
- In cases where it is claimed that the complainant is unable to act, the nature of the disability should be established and appropriate checks made to ensure that the incapacity is genuine and is not being used against the wishes of the complainant. Again, a check should be made to find out whether there is a Power of Attorney, an Order from the Court of Protection or a Mental Health Act appointment giving the person authority to act.
- The absence of a formal appointment as personal representative in cases where a complainant has died or is unable to act does not mean that a complaint cannot be accepted from “a member of his family” or “some body or individual suitable to represent him”. But it is important to clarify the capacity in which the complainant acts. The person complaining may have grounds for a complaint about injustice caused to them.
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Date Updated: 23/06/10