Exclusions

‘A complaints policy should set out the circumstances in which a matter might not be considered or escalated. Organisations should ensure that these are reasonable, and should not deny individuals access to redress.’ (Paragraph 2.3 of the Complaint Handling Code)

It is for each organisation to determine what complaints should be dealt with under their local policy. If an organisation decides not to consider a complaint it should provide its reasons in writing and signpost the individual to the Ombudsman. This means the complainant can escalate their concerns and prevents the organisation from being drawn into prolonged discussions about whether the complaint should be accepted.

When signposting to the Ombudsman, in these circumstances, organisations may wish to use the recommended wording in our Manual for Councils.

We have produced a set of recommended exclusions which are set out below. This is not intended to provide an exhaustive list. These are designed to ensure the complaints process provides access to independent investigation, and, where appropriate, redress where no other appropriate route exists.

The Code says organisations should not take a blanket approach to excluding complaints. Therefore, it is important that the circumstances of each complaint are considered. Organisations should also consider feedback from complainants about why their individual complaint should not be excluded.

Organisations should carefully consider how excluding certain categories of complaints could impact groups with protected characteristics under the Equality Act 2010. For example, excluding complaints about policies and procedures may prevent people with disabilities from raising concerns about any adverse impacts these may have.

Organisations should review the number and types of complaints being excluded as part of regular monitoring and quality assessment checks. This is to ensure exclusions are being applied fairly and consistently.

Recommended exclusions

• The person complaining (or their representative) has already commenced legal action about the matter.
  This should only apply where an application has been made to court about the matter. The issuing of a pre action letter does not constitute the commencement of legal action and it may be in the interests of both parties to resolve the matter through the complaints process rather than through the courts. See the later section of this guide for more information.
   
• The person complaining (or their representative) has a statutory right of appeal to a tribunal, a government minister or court about the matter complained of and it would be reasonable to expect them to exercise that right of appeal.
  This only relates to statutory rights of appeal to one of the bodies set out above which is specifically set out in legislation. This includes complaints about Freedom of Information and Environmental Information Regulations requests which can be subject to an appeal at tribunal following a decision by the Information Commissioner’s Office.
  
  Complaints should not be excluded because a person has right to apply for judicial review. Most decisions or actions taken by a public body may be subject to judicial review in court. However, this is a remedy of last resort and in most cases it would not be reasonable to expect a member of the public to pursue this due to the costs.
  
  The Courts have considered the suitability of judicial review as an alternative legal remedy and decided that complaining to the Ombudsman is generally more appropriate (Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406). The pre action protocol for judicial review also states that litigation should be ‘a last resort’ and both “The claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered" including making a complaint to the Ombudsman.
   
• The specific matter complained of has already been subject to an appeal or is currently subject to an appeal with a tribunal, minister or court, even if the person complaining or their representative is not the appellant.
  There is no merit in looking at complaints that are specifically about decisions by other bodies that are binding on the organisation.
  
  However, care should be exercised not to exclude complaints about associated decisions that are within the discretion of the organisation.
  
  For example - if a court found an organisation had acted unlawfully in the way it calculated Mr X’s contributions towards his care costs, a legitimate complaint could come from Mrs Y about how it calculated her contributions in a similar manner.
   
• The person complaining (or their representative) can appeal or ask for a review of the organisation’s actions through an internal appeal or review process.
  Organisations may operate internal review and appeal mechanisms across a wide range of services where there is no subsequent statutory right of appeal to another body such as a court of tribunal. There is more information about how to deal with review and appeal mechanisms in relation to complaints in the section on appeals and reviews.
   
• Complaints solely about Data Protection (Data Protection Act 2018 and General Data Protection Regulations (EU) 2016/679)
  Organisations may decide to deal with complaints which are purely about how it has handled a person’s personal data through a separate process. If a complainant is unhappy with the organisation’s response, they may complain to the Information Commissioner’s Office (ICO).
  
  However, some complaints may contain elements which relate to how a person’s data has been processed by the organisation alongside other related matters. Where this is the case complaints should be dealt with under the Code. At the end of the process complainants should be signposted to the ICO and LGSCO.
   
• The person complaining (or their representative) has previously had a complaint about the same matter considered under the organisation’s complaints policy or by the Ombudsman.
  Once a complaint has been considered through the complaints process or by the Ombudsman it would not be a good use of the organisation’s finite resources to revisit the matter.
  
  Organisations should be conscious of changes in a person’s circumstances or further contact with services which may give rise to a legitimate new complaint.
  
  Organisations should not exclude complaints where a person is complaining the organisation has failed to fulfil its promises made as part of local complaints processes. We would expect an organisation to issue a further final complaint response, explaining why it failed to fulfil any promises, the action it will take to put things right and signpost to the Ombudsman. This means complainants are not forced to go back through the complaints process for a second time.
   
• There is ongoing action being taken either by the organisation or another party and considering the complaint would prejudice such actionOrganisations may exclude complaints where investigating the matter raised would prejudice ongoing action being taken elsewhere. This may include action such as investigations into criminal activity or safeguarding enquiries. Organisations should give careful consideration to excluding complaints on this ground and have regard to whether the individual has an opportunity to put forward their views as part of any concurrent investigation or action.
  
  Organisations must also be able to demonstrate that investigation of the complaint would prejudice any concurrent investigation or action being taken. For example, a complaint about delays in taking enforcement action are unlikely to prejudice consideration of enforcement action itself.
  
  Organisations should invite individuals to raise their complaint once any concurrent investigation or action has been concluded.
   
• The complaint relates to personnel matters, including recruitment, pay, grievances, removals, discipline and pensions.
  
  The purpose of the complaints process is to deal with relationships between service providers and service users, and not an organisation’s actions as an employer or potential employer. Complaints from staff about matters relating to their employment should be dealt with through personnel policies. Although the actions of an organisation when recruiting staff may not be challenged through personnel processes, they relate to the organisation’s actions as an employer and it would not normally be appropriate to deal with concerns raised about recruitment through the complaints process.
  
  Members of the public will sometimes ask for disciplinary action to be taken as part of the resolution of the complaint. That is not a reason for excluding a complaint on the grounds that it relates to personnel matters. The complaint isn’t a ‘’personnel matter’ just because of a desired outcome. It is for an organisation to decide whether individual action against an employee is required following investigation of a complaint, however the details of any action taken is the personal data of the employee and so should not be shared with the complainant.

Complaints which should not be excluded

Through our investigations we have seen examples of organisations excluding complaints about certain matters which should have been addressed through the complaints process before coming to the Ombudsman.

We believe the following complaints should not be normally excluded from complaints processes.

• Complaints about decisions made by the organisation which cannot be overturned or revoked (e.g. decisions to grant planning permission)
  Organisations will sometimes make decisions which they themselves may be unable to overturn because of the legally binding nature of that decision. For example, a decision to grant planning permission. In other circumstances it may be considered unfair to overturn a decision because of the impact on other innocent party.
  
  However, even if a decision cannot be overturned, organisations may be able to take other action to remedy any injustice or harm caused as a result of fault in how a decision was made. The organisation may also gain valuable learning from considering the complaint to help improve standards of decision making in future.
   
• Complaints about conduct or behaviour of its staff or members of staff working for third parties acting on behalf of the organisation.
  Organisations may have other processes for dealing with allegations of impropriety by individual members of staff or contractors. However, organisations should still consider complaints about these matters to ensure that the complainant and others are not disadvantaged. Complaints about third parties acting on behalf of the organisation should be treated as if they were complaints against the organisation.
  
  Complaints investigations should focus on the actions of the organisation as experienced by the complainant so it should be possible to investigate what happened without prejudicing any concurrent investigations about how individuals conducted themselves.
  
  The organisation may be limited in what it can say in relation to any action taken against individuals but it may still be able to provide redress if a complainant or others have been adversely affected by the actions complained of.
  
  In rare cases, organisations may not be able to consider a complaint because it would prejudice concurrent investigations being undertaken by the Police or other parties including the courts. In these cases, the organisation should explain, as best it can, why this is the case and invite the complainant to complain once the concurrent investigation has concluded. The complainant should still be signposted to the Ombudsman.
   
• Complaints involving personal injury and/or loss or damage to property.
  Organisations should not automatically exclude complaints where someone alleges personal injury and/or loss or damage to property.
  
  Investigating a complaint before signposting to insurers gives organisations an opportunity to consider whether they were at fault in the first instance. This may then help organisations and complainants decide whether pursuing an insurance claim is worthwhile. This may save organisations the significant costs of a detailed investigation into claims which are unlikely to be successful.
  
  Organisations should also consider the level of redress a complainant is seeking. If the level of redress is not significant then it may be more cost effective to deal with the matter as a complaint and pay any quantifiable losses which are directly linked to fault by the organisation.
  
  However, there may be occasions where dealing with the matter through an insurance claim is a more appropriate because the alleged losses are significant. Organisations may decide to signpost to their insurers in these circumstances.
  
  Where an organisation publishes information about insurance claims, either online or in printed material, it should also include information about its complaints process. This will help complainants to decide which process is more appropriate route for addressing the issue they are raising.
   
• Complaints about policies and procedures or how an organisation spends its money or allocates resources.
  Organisations should not automatically exclude these complaints. Complaints provide organisations with an opportunity to review how policies, procedures and budgetary decisions affect individuals. This is especially important where people have protected characteristics under the Equality Act 2010.
  
  If a complainant is not directly impacted by a policy, procedure or a decision about finances or resources, but simply disagrees with the organisation’s decision, the organisation may reject the complaint on the grounds they are not a person who may complaint (because there is no impact on them nor any wider public interest issue raised). The organisation may consider signposting the complainant to locally elected representatives.