How do I challenge decisions and make a complaint?

You may wish to raise concerns about how your carer's assessment was carried out.  You may wish to challenge decisions about what care will be provided, including care put in place after a patient is discharged from hospital.  You may wish to challenge the amount that is being charged for  services.  

Whatever your situation it is important to know your rights and have access to advice.  Advice centres like the Citizens Advice Bureau or a disability organisation can help you make a complaint or give you details of lawyers able to advise on community care law.

Carers who have been through making a complaint say it is always helpful to make a note of telephone calls.  Write down who you spoke to, the time and a brief note about what was said.

Under the Data Protection Act 1998:

• You can ask the social work department for a copy of your file.
• If you are legally able to act on behalf of the person you are caring for, you can also ask for their file.
• You should receive this information within 40 days, but the local authority can charge.

Every local authority must have a procedure for dealing with complaints about social work services. If the person you care for is unable to make a complaint or asks you to make a complaint, you can do this on his or her behalf. You can also make a complaint on your own behalf, for instance, if you are unhappy about the way in which the social work department carried out your carer?s assessment. The complaints procedure has three stages:

Stage 1 the informal stage

This stage enables you to raise your concerns, on an informal basis, and gives the social work department the opportunity to try to resolve the problem. Although you can complain in person, or on the phone, it is better to write and keep a copy of the complaint. You do not have to use Stage 1, so you may prefer to ask that your complaint is dealt with on a formal basis which is Stage 2 of the complaints procedure

There is no set time limit for dealing with complaints at this informal stage, although most local authorities will have their own timescale, which is often about six weeks. It is worth asking how long you will have to wait for a reply when you make your complaint.

If you are not satisfied with the way in which the complaint is resolved, the local authority should give you an explanation of the complaints procedure and ask you to put your complaint in writing if you wish to proceed to the next stage.

Stage 2 the formal stage

If your complaint cannot be resolved informally, or if you choose not to use the informal stage, it will be deal with formally. Your complaint must be put in writing. Social work departments have 28 days in which to investigate your complaint and send you a written reply. If the department wants to extend the time limit of 28 days, it can only do so if you agree.

The social work department should be able to provide help to people making a complaint. It is therefore worth asking what help is available, in particular whether there are any advocacy services which can assist you.

The local authority has to tell you, in writing, the outcome of the "formal stage". If you are making a complaint on behalf of the person you care for, he or she should be informed of the outcome of the investigation, unless the social work department consider that he or she is not able to understand the complaint or it would cause him or her distress. The local authority?s reply should advise you of your right to ask for the complaint to be referred to a panel for review if you feel that the problem is not resolved.

Stage 3 the review stage

If you are not satisfied with the response to your complaint, you can request to have your complaint referred to a panel. You must put your request in writing, within 28 days of receiving the Stage 2 decision.

The panel will consist of three people, at least one of whom must be independent and who should chair it. It is the panel?s job to reexamine the previous decision. It is in your interest to attend if you can. The panel will find it easier to understand your situation if they can ask you questions. You are entitled to be accompanied by another person, for instance an advice worker, who could speak on your behalf if you wish.

The panel must make recommendations in writing to the local authority within 56 days of receiving notice of the complaint. The social work department then has 28 days to respond to the recommendations. Their response should be sent in writing to you. The letter should explain the social work department?s decision and the reason for it.

Complaint to the public service ombudsman

The Scottish Public Service Ombudsman can investigate complaints again local authorities, the NHS or any private or voluntary sector services paid for by the local authority or the NHS. You will need to go through their complaints procedures before you can make a complaint to the Public Service Ombudsman.

You should put your complaint in writing and provide proof that you have already used the appropriate local complaints procedure, for example, letters to and from the authority involved. The Ombudsman does not have to investigate your complaint if they do not think it is justified. You can contact the Ombudsman at: The Scottish Public Service Ombudsman, Freepost EH64, Edinburgh EH3 0BR  Tel:  0800 377 7330  or email.

Judicial review

Where social work departments appear to have acted unlawfully in reaching a decision, an application can be made to the Court of Session in Edinburgh asking the judge to review the decision. You must get expert legal advice before taking this course of action. People on low incomes can get legal aid but otherwise this is a very costly process. Judicial review might be appropriate in cases where the social work department has refused to carry out an assessment or reach a decision, particularly if services are required urgently.

Useful leaflets

Health Rights Scotland produce a leaflet called "Making a Complaint About an NHS Service" which is available to download by clicking here.  You can download the leaflet for your NHS area alongside audio and easy-read versions.  Downloads in Arabic, Bengali, Chinese, Punbjabi and Urdu are also available.