All investigations (except complaints withdrawn at a very early stage) will have a draft decision sent to the BinJ and any others involved, and to the complainant. 

The draft decision is a fundamental step in ensuring that we make just and fair decisions. Its purpose is to test the evidence that we are relying upon with both parties in an even-handed way and to give an opportunity for the BinJ and complainant to comment on our thinking before a final decision is made. To be meaningful, the draft decision should be written when we have gathered enough evidence to come to a sound conclusion on the complaint. The test is that we have gathered sufficient information and all key lines of inquiry have been completed. It should not generally be used as a vehicle to test one party’s evidence with the other before the investigation has been finished. Draft decisions will therefore usually be prepared after contact and enquiries have been made with both parties. 

Unless it is proposed to publish a report on the complaint, draft decisions will be issued in the form of a draft statement of reasons. The accompanying letter to the BinJ and any others involved must provide a clear invitation to comment, and we must carefully consider any comments or further information received before coming to any final decision. 

Where in our draft decision we are critical of the actions of an individual or an organisation, we will require the BinJ to show the individual or organisation the draft decision and invite their comments. We will require evidence that this has been done. Comments should generally be returned to us via the BinJ and it will be open to the BinJ to add its own comments on what has been written. Alternatively, comments from companies, organisations and individuals who are acting on behalf of the BinJ and former employees of the BinJ may be made directly to the Investigator and copied to the BinJ. In the event that the author does not want the BinJ to see the comments, the Investigator will consider the reasons given in deciding what weight to attach to the comments.

28.1 Timing

The normal principle is that draft decisions should be sent to all parties at the same time.

• All parties should be given the same timescale for a response (at the Investigator’s discretion, but generally 10 working days plus two additional working days if sent by post). 
• Any party may request an extension of time, which can be agreed or refused by the Investigator without reference to the other party/parties. The Investigator should consider whether the complainant has any particular needs that might be supported by extending the time limit as a reasonable adjustment.

If we issue a new draft decision, the same principles apply. 

There may be some situations where, in the particular circumstances of the complaint, the complainant, or a BinJ, the Investigator does not feel it would be appropriate to send the draft decision simultaneously to all sides. An example might be where the proposed remedy is far from the complainant’s expectations, but the BinJ might also be very resistant and circumstances are not entirely clear. The Investigator should discuss the complaint with their Assistant Ombudsman and seek approval to depart from the norm, and record this in Notes & Analysis.

28.2 Language and Content

The language used in the draft decision should generally be authoritative, with firm findings. The summary and draft decision sections, however, should be more tentative, making clear that the views expressed are based on current information. This makes more transparent any changes to our decision in the light of responses to the draft: the draft decision is not a done deal and a further draft decision may be needed. It will need to be updated for the final decision.

We publish our decisions on our website. It is important that they are fit for purpose and reflect a common style and layout.

The draft decision statement sets out our understanding of the complaint, showing what we have done in our investigation, including a fair and balanced summary of the facts, and a clear analysis which leads to our view. It will be changed to reflect comments and new information, but will normally form the basis of the final decision so must conform to our standards and guidance on the structure for statements which can be found in the Statement of Reasons Manual and the Style Guide. The ECHO template provides the structure for the draft decision statement. The template can be adjusted, but only in accordance with our standards on statements. 

The draft decision statement should not normally include:

• anything to identify an individual
• unnecessary information of any kind (but especially unnecessary personal information).

Identifying details and, exceptionally, real names should only be included if we decide it is in the public interest and necessary to do so. Decisions to use a real name, or to use details that could easily lead to the person being identified (e.g. a unique job title) should only be made in consultation with your Assistant Ombudsman.

Notes and Analysis or the decision statement must be used to record this decision and set out why we have decided it is both in the public interest and necessary to do so.

We must have given the named individual an opportunity to comment on the draft before naming them in a published document and must consider any comments they have made. The decision statement should make both these matters clear.

The draft decision statement will have a covering letter which makes it clear that a final decision has not been made, invites comments by a deadline and has a clear message about what will happen next (including explain to each party what will happen if they do not respond). 

28.3 Identifying third parties and contractors 

There is guidance on this topic in the Statement of Reasons Manual.

Decisions to name or use identifiable details should only be made in consultation with an Assistant Ombudsman. Notes and Analysis must record this discussion and set out the reason why it is both in the public interest and necessary to name the organisation.

28.4 Identifying Care Providers/locations

Investigators must refer to the guidance set out in the Statement of Reasons Manual.

28.5 Identifying senior staff and elected members (councillors)

Investigators must refer to the guidance set out in the Statement of Reasons Manual.

Decisions to name or use identifiable details of any employees or elected members should only be made in consultation with an Assistant Ombudsman. Notes and Analysis must record this discussion and set out the reason why it is both in the public interest and necessary to name a senior employee or elected member.

28.6 If we don’t receive a response to our draft decision 

If the complainant does not respond to our draft decision we can proceed to a final decision. There is no need to chase a positive response. Similarly, if we do not receive a response to our draft decision from the BinJ and we are not making recommendations, we can proceed to a final decision even if we have found fault. 

However, it would be difficult for the Ombudsman to demonstrate that he is “satisfied with action which the authority concerned have taken or propose to take” if action is recommended and there is no positive agreement from the BinJ. If we are making recommendations we need the BinJ’s confirmation of their agreement. An oral agreement is acceptable, but written confirmation is  preferable, especially if the recommendation could be contentious. If agreement cannot be secured and we remain satisfied the recommendations are necessary, we will need to remind them of our powers to issue a public report.

28.7 Resistance to compliance with our draft findings/recommendations

We must be able to show we have properly considered arguments put forward and changed our stance as appropriate. But if we are satisfied with our findings and recommendations, we should not generally negotiate and should instead pursue compliance to the full extent. We should though attempt to provide further explanation of our position to a BinJ and explain why its arguments are not persuasive. At an appropriate point we should also remind it of our power to issue a report where our recommendations are not agreed. If this correspondence becomes protracted or no progress is made, the Investigator should seek input from their Assistant Ombudsman.

Where the BinJ agrees to carry out our recommended actions but disagrees with our findings we can still issue our final decision. The BinJ has the option to request a post decision review just as the complainant can. The BinJ can then either agree the recommendation or refuse, triggering our consideration of whether a public interest report is required.

28.8 Changes to draft decisions

Where we are proposing important changes to the outcome of a draft decision, we need to take account of the views of both parties on the changes to ensure we are seen to be fair. So, for example, if we propose to change a financial remedy or to change a decision reason because of the comments from one party, we need to raise this with the other before issuing the final decision. This may be done by discussing the reasons for the proposed change with them and taking account of their comments or, if the proposed changes are of considerable importance, issuing a further draft for comments. Any rationale should be recorded in Notes and Analysis.