Systems for challenging adult social care decisions failing, warns rights regulator

The system for challenging councils on their adult social care decisions is failing those who need it, the Equality and Human Rights Commission (EHRC) has warned.

Inaccessible information, “complicated and stressful processes” and a lack of advocacy were undermining people’s ability to challenge local authority decisions in England and Wales, the rights regulator found, on the back of an inquiry it started in 2021.

In a foreword to a report it published today, the EHRC’s chief executive officer, Marcel Boo, said these issues, combined with a fear of losing care should you complain, meant that “too many people do not
seek help or feel ignored, often when they are already vulnerable”.

Evidence base

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Photo: Fotolia/aquarious83men

The EHRC’s study drew on:

  • A survey of 153 of the 174 councils in England and Wales and in-depth interviews with 12 of them;
  • A self-selecting survey of 332 people accessing care, their representatives and carers;
  • Interviews with 41 people seeking or accessing care and their carers;
  • 54 in-depth interviews and 12 focus group discussions with social care professionals, lawyers, advocacy organisations, older and disabled people’s organisations and statutory bodies, among others.
  • Written submissions from organisations and experts.

Lack of accessible information and advice

Despite the Care Act 2014 and Social Services and Well-being (Wales) Act 2014 requiring councils to provide people with accessible information and advice on social care in their areas, the EHRC found this was not always the case in relation to challenging decisions.

While nine in ten councils said they made information on challenging decisions available in accessible formats, just 3% made it publicly available in British Sign Language and 29% publicly available in an Easy Read format. The EHRC said having to request the information would act as a barrier to some.

In addition, while 90% of authorities would signpost people to an independent service providing advice on challenging decisions in at least some cases, just 42% reported doing so in every case.

‘Unclear, complex and energy-sapping

People who used social care and their carers, as well as disabled and older people’s organisations and lawyers, told the regulator that council social care complaints processes were “unclear, complex and energy-sapping” to navigate, particularly when people were at crisis point.

Council complaints processes

Under 2009 regulations, all councils must have a formal adult social care complaints system but may determine the form this takes themselves. They are required to investigate the complaint to resolve it quickly and efficiently, and then report back to the complainant with an outcome. This should be within six months of the complaint being made though can be longer. There is no requirement for an independent stage to the complaints process, though people can refer their complaints to the Local Government and Social Care Ombudsman (LGSCO) within 12 months of the relevant decision, after exhausting their council’s complaints process.
2014 regulations establish a two-stage process for handling social care complaints. At stage one (local resolution), the council must offer to discuss the complaint within ten days. If this does not resolve things, or if this is what the complainant wants, a formal investigation, carried out by someone independent of the case, should take place. This should report within 25 days though this can be extended to up to six months. The Public Services Ombudsman for Wales (PSOW) can consider unresolved complaints up to 12 months after the initial decision was taken.

Despite regulations setting time limits for councils to resolve complaints, the EHRC found they sometimes took a long time to resolve, with examples of cases taking up to two years.

Even when complaints timescales were kept to, this often came too late for people in crisis or at the end of life.

Legal organisations told the EHRC they often advised people to challenge a council’s decision legally, through a judicial review, because of the length of complaints processes, though this was a costly option.

Perceived lack of independence

The inquiry found significant variation between councils in England who handled complaints, in the context of there being no requirement – unlike in Wales – for this to be independent of the decision being complained about.

While in 7% of cases, the decision maker handled the complaint, in 23% it was someone else from their team and in 34% someone from a different team.

The EHRC said a small number of people who used services expressed concerns about a perceived lack of independence in the process.

Complaints ‘regarded as pointless’

More broadly, it found that many people with care needs and carers “had little confidence” in councils to respond to their concerns, with some saying aspects of their complaints were ignored.

“As a result, many regarded complaining as pointless and were reluctant to do so,” the report said.

The report also raised concerns about access to advocacy. Councils in England and Wales must provide an independent advocate to support people who would otherwise struggle to participate in assessment, care planning, review or safeguarding processes, and have no one appropriate to support them, such as family member.

Unlike in the NHS, there is no requirement to provide advocacy for people making a complaint or challenging decisions. While two-thirds of councils surveyed by the EHRC did commission a service that went beyond the statutory minimum, 20% did not, “limiting referrals and creating gaps in access to advocacy”.

Improving the system

To tackle the issues raised by the inquiry, the EHRC recommended that:

  • The UK government should make the LGSCO the statutory complaints standards authority for adult social care in England, as the PSOW is in Wales. Both should ensure councils resolve complaints in well-defined timeframes, have decision makers who are “robustly and visibly independent” and consider the substance of the issue being complained about, not just whether processes have been followed.
  • The UK government should also empower the LGSCO to initiate investigations into areas of concern, even if people have not specifically complained about these, and to make recommendations. The PSOW already has such a power.
  • The UK and Welsh governments should bring in statutory entitlements to advocacy for people making adult social care complaints to local authorities, in line with what is available in the NHS.
  • Councils in England and Wales review their compliance with legal requirements on providing information to ensure it is accessible and available in alternative formats, and that they are meeting Equality Act 2010 requirements to provide reasonable adjustments for social care users and carers.
  • Authorities should always give care users and carers details of general and specialist local and national advice services, in line with requirements to provide advice services under the Care Act and Social Services and Well-being (Wales) Act.
  • The Care Quality Commission, in its soon-to-be-introduced system to assess local authority adult social care performance, and the Care Inspectorate Wales should examine authorities on issues including their provision of accessible information and their learning from complaints and legal challenges.

It also said the UK government should keep under review the possible implementation of a provision in the Care Act to establish an appeals system for social care decisions in England. This had been due to come into force in 2016 but was shelved by the then government.

The Local Government and Social Care Ombudsman, Michael King, said the EHRC report echoed several of the LGSCO’s own findings, including “the erosion of effective local complaints processes and the particular challenges faced by people with disabilities in accessing the complaints process”. He also said the organisation would welcome becoming the statutory complaints standards authority and ensure complaints were dealt with consistently and lessons learned from them, were this to happen.

Funding situation highlighted by council leaders

The Association of Directors of Adult Social Services (ADASS) and Local Government Association (LGA) also welcomed the report, with both saying the learning from it would be “crucial” in helping councils improve the complaints system.

However, both associations also said the report highlighted the importance of addressing social care funding levels.

The chair of the LGA’s community wellbeing board, David Fothergill, said: “Significant and worsening financial and workforce challenges will at times inevitably impact on people’s experience of care and support. Addressing this requires long-term and sustainable funding for adult social care services.”

ADASS president Sarah McClinton stressed the “need to tackle the underlying problem of long-term sustainable funding for high quality adult social care so that everyone can get the care and support they need to live a good life”.

“This report is another wake-up call that reform cannot wait another three, five or ten years,” she added.

A Department of Health and Social Care spokesperson said: “People should be able to access outstanding quality care and anyone who has seen or experienced poor quality care has the right to complain to the organisation that provided or paid for it.

“A strong feedback culture in adult social care is important to improve services and people’s experiences. We will look at the findings and recommendations of the report and respond in due course.”