Making a decision

All complaints receive a decision. Where we have considered a complaint in more detail, we will issue a draft decision to both the council or authority complained about and to the complainant. This is an opportunity for each party to comment on our findings so it is important you tell us:

• if you consider we have made an error in law;
• there are factual inaccuracies in the draft decision;
• you are unable to deliver any action we have recommended; or
• you are unable to deliver any recommended actions in the timescales we have proposed.

The investigator involved will then consider all comments received on the draft decision before issuing a final decision.

Investigators have delegated authority to make decisions on behalf of the Ombudsman. There is no internal escalation process whilst the complaint is open. If an organisation is unclear about anything within a draft decision it should contact the investigator to ask for clarification before providing a formal response.

The final decision is sent to the complainant and the council or authority complained about at the same time. It is unlikely we will change our final decision if a council or authority later supplies information that was available when we consulted on the draft decision. Organisations can refer to our post decision review process which provides information on how to challenge our decisions.

The Local Government Act 1974 (as amended by the Local Government and Public Involvement in Health Act 2007) specifies how we can issue decisions, either by:

• a statement of reasons for our decision (sections 30(1B) and (1C)); or,
• a report (section 30(1)).

If we have decided that the council or authority has done something wrong and that this fault has caused an injustice to the complainant, we will suggest what the council or authority should do to put this right. The key principle when deciding an appropriate remedy is, wherever possible, to put the complainant back in the position they would have been in if the fault had not happened. We have published detailed guidance for our staff about what matters should be considered when recommending a remedy. Many councils and authorities find this guidance useful in determining an appropriate remedy for complaints they resolve through their own processes. 

Most complaints receive a decision in the form of a decision statement.

Decision reasons

In addition to issuing a decision statement or a report, we will send the council or authority a covering letter which will explain how we have categorised the decision at the bottom of the letter. This categorisation relates to how we will describe our decisions in our annual letters to councils and authorities. See here for a more detailed explanation of specific decision reasons. 

Maladministration and Service Failure

If we make a finding of maladministration or service failure, we call this fault.

The term ‘maladministration’ is deliberately not defined in law and similarly there is no explicit threshold for what constitutes maladministration. Our jurisdiction allows us to investigate alleged or apparent maladministration or service failure.

It is for the Ombudsman to decide whether a particular set of circumstances amount to maladministration. In general terms, it is ‘administrative fault by the body in jurisdiction’ or ‘fault in an action taken by a body acting on behalf of the body in jurisdiction’.

Service failure is defined as:

• A failure in a service which it was the function of an authority to provide, or
• A failure to provide such a service

There does not need to be any aspect of blame, intent, or bad faith involved in a body’s actions in order for us to find fault. The existence of ‘Service failure’ or the ‘failure to provide a service’ is a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.

Both maladministration and service failure are explained further in our Guidance on Jurisdiction. This is guidance for our staff but we have published this for transparency.

Publishing our decisions

We have been publishing our decision statements on our website since 1 April 2013. All decision statements are published unless there are specific reasons why we should not publish, for example a risk of breach of anonymity. We name the council or authority complained about and any care providers involved however we do not name specific officers. We wait six weeks after the decision has been issued to publish a decision statement on our website.

You should not discuss the statement in public or comment on its contents before that date. If commenting on the decision please be mindful not to share any additional information (e.g care location or school name) that may identify the complainant.

Decisions stay on the website for five years and are then removed. Many councils and authorities use our library of decisions to guide their own complaint handling and to identify learning from complaints that might help improve services. You can also subscribe to weekly subject specific emails of our published decisions by clicking here.

Challenging our decisions

Following an investigation every council and complainant receives a draft decision outlining our provisional view of a complaint based on the information we have. If the council disagrees with our findings it should say so in response to the draft decision.

Exceptionally, we have an internal review system in place where a complainant, council or authority can ask for a decision to be reviewed in limited circumstances. These are where there is new evidence or they feel an error of fact has been made. We will not carry out a review simply because a party does not like the outcome. The review is carried out by a manager who has was not involved in the case and who does not line-manage the investigator who made the decision. Requests for an internal review should be made within one month of the final decision being issued. An explanation of the review procedure is available in our Post Decision Review and Service Complaint Manual. A complainant, a council, or authority can also apply to the courts for a judicial review of our decision.

In all other circumstances, case law is clear that councils and authorities must accept the Ombudsman’s findings. It is not acceptable for a council or authority to dispute the Ombudsman’s decision in the media or in other public forums.