In the final installment of my four-part series on consumer law obligations and their relevance to health and social care providers, I will look at the ins and outs of complaint procedures and what can help demonstrate compliance under both consumer law and the Health and Social Care Act 2008 (Regulated) Activities Regulations 2014 (“2014 Regulations”).
This will largely focus on adult social care providers, and in particular care homes and their obligations in respect of privately funded service users because these obligations are derived from the contractual relationship between provider and service user. However, compliance, particularly with the 2014 Regulations, will be relevant to all health and social care providers.
The Requirement
Under consumer law, the main priority is to ensure that there are effective procedures in place to address concerns or complaints about the quality of care provided.
According to the Competition and Markets Authority (“CMA”) Guidance (“Guidance”) for providers in respect of their obligations under consumer law, they refer to a complaint as “any expression of dissatisfaction that a care home or member of staff has not met the standard people would expect”. This wide definition lends itself to wide interpretations and potentially subjective assessments on what would amount to ensuring complaints handling procedures are effective.
According to the CMA’s Guidance, there should be a written procedure in place that is:
- Accessible
- Understandable
- Fair & Effective
- Consistently Applied
Looking at each of the requirements in turn –
Accessible
The CMA would expect that a copy of your complaints procedure be available to all prospective residents. This means failing to provide this to prospective residents may also be in breach of your transparency obligation under consumer law, which I wrote about on 22 May 2023, which requires all essential information to be provided to prospective residents before they become bound in contract.
The requirement also goes beyond just ensuring a copy was provided. The CMA also expects providers to publicise information in respect of complaints handling and bring this to the attention of residents and their representatives. It should also be easily located and visible, including clear signposting, highlighted in service user guides, set out in contracts, prominently on display and in residents’ bedrooms.
Thus, the requirement is to ensure full and frank disclosure of the procedures in place for complaints handling, which mirrors transparency obligations to some extent.
Understandable
Not only must your complaints procedure be easily accessible, but it must also be easy to understand by all who may wish to use it. This will include making accommodation for the communication needs of your service users.
According to the CMA Guidance, it should be possible for service users to make their complaints orally or in writing and information on assistance making a complaint should also be offered.
Finally, feedback should be welcomed and barriers, including psychological, should be avoided as this may amount to an unfair and aggressive practice under consumer law.
Therefore, this aspect of the obligations relating to complaints procedures very much ties in with transparency obligations and equality obligations under consumer law, which I wrote about on 22 May 2023 and 15 June 2023 respectively.
Fair and Effective
A more nuanced aspect of complaints procedures is the requirement to deal with complaints fairly and effectively. Now this may be difficult, because not all complaints will be dealt with to the satisfaction of the complainant. However, the CMA Guidance sets out several steps that are recommended to follow to ensure your complaints procedure is fair and effective:
- Set out clearly where and how to make complaints;
- Ensure it is clear what your complaints procedure does and does not cover; and
- Clearly explain how people can be supported to make a complaint where necessary.
Timing is also a very important part of handling complaints. It would be expected that complaints are dealt with quickly. The aim should be to streamline the process as much as possible so that a solution can be reached in as few steps as possible. Therefore, the CMA Guidance suggests, as a minimum, to have in place a frontline resolution procedure, which can deal with straightforward issues. However, where matters become more complicated, there should also be an investigation stage, which sets out timescales, is carried out by an independent person, provides regular updates to the service user (or representative) concerned, provides for streamlined notification to senior management where the concern is serious enough, provides detailed responses and findings, and cooperates with partner organisations who are relevant to the complaint.
There should also be the opportunity for the complainant to escalate the concern within your organisation and/or to external bodies (i.e. Ombudsman) should the outcome not prove to be satisfactory.
This obligation runs parallel to the obligation to treat all residents fairly, which I wrote about on 15 June 2023. They must all be subject to the same expectations and residents should receive the same treatment under the same processes.
Consistent Application
Under consumer law, a provider is responsible for the actions of anyone acting in their name or on their behalf. Therefore, it will be crucial to ensure all staff are familiar with the complaints policy and procedure.
The best way to ensure consistent application across your organisation is to ensure staff have robust training on handling complaints on a regular basis.
The Scope & Regulatory Overlap
Much of the above might seem intuitive, and that is because many of these principles are already codified in the 2014 Regulations.
Under Regulation 16, providers are required to investigate any complaints received and take necessary and proportionate action based on the outcome of the investigation should failures on the part of the provider be found.
Further, Regulation 16 also requires providers to establish and operate effective systems for identifying, receiving, recording, handling and responding to complaints. Thus, establishing and operating a complaints procedure should be common place for all providers.
Regulation 17 also plays into complaints procedures, because a complaint is deemed feedback, albeit negative feedback, on the services provided. According to Regulation 17, providers must seek and act on feedback. This ties in with the requirements to ensure that the complaints procedures are easy to access and understand and to operate them fairly and effectively.
Practical Implications
The usual problems that providers face when experiencing complaints are unwanted attention from regulators and community partners, possible enforcement action or sanctions placed on their services, and potential costly litigation.
However, it should also be noted that failure to follow complaints procedures in line with legal requirements can be deemed failure on the part of the provider to act in accordance with professional diligence requirements. This can result in compensatory relief for service users who were negatively impacted by an alleged breach of consumer law. This will inherently have a negative impact on the reputation and potentially, in turn, the viability of the business of the provider.
In addition, as complaints fall under Regulations 16 and 17 of the 2014 Regulations, breaches of these are deemed criminal offences under the 2014 Regulations. Thus, failure to establish and effectively operate complaints procedures in line with the relevant legislation can result in a summary conviction and a fine not exceeding £5,000, which will also negatively impact reputation and, in time, business viability.
Conclusion
Whilst complaints procedures are not new territory for providers, the implications these hold in areas of law outside of the 2014 Regulations might be news to providers.
Providers should always ensure they keep up to date on all relevant law and best practice guidance to ensure that they don’t breach any of their obligations, either under the 2014 Regulations or contract.
If you are having any trouble with complaints, are facing enforcement action from the CQC or just want clarification on the impact these issues may have on your particular service, Ridouts’ team of specialist solicitors is here to help. Please contact us on 0207 317 0340 or email us at info@ridout-law.com.
