Local Government Act 1974 (c. 7)

[F1 Part 3A E+W Investigation of complaints about privately arranged or funded adult social care

Textual Amendments

F1 Pt. 3A inserted (1.10.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 5 para. 2; S.I. 2010/1863, art. 2

Private adult social care: matters subject to investigation E+W

34A Interpretation: “adult social care provider” and “adult social care” E+W

(1) This section applies for the purposes of this Part.

(2) “Adult social care” means social care within the meaning of Part 1 of the Health and Social Care Act 2008 which is provided to persons aged 18 or over.

(3) “Adult social care provider” means a person who carries on an activity which—

(a) involves, or is connected with, the provision of adult social care, and

(b) is a regulated activity within the meaning of Part 1 of the 2008 Act.

(4) Action is to be treated as action taken by an adult social care provider if it is taken by—

(a) a person employed by that provider,

(b) a person acting on behalf of that provider, or

(c) a person to whom that provider has delegated any functions.

(5) Action is also to be treated as action taken by an adult social care provider if—

(a) that provider provides adult social care by means of an arrangement with another person, and

(b) the action is taken by or on behalf of the other person in carrying out the arrangement.

34B Power to investigate E+W

(1) Under this Part, a Local Commissioner may investigate a matter—

(a) which relates to action taken by an adult social care provider in connection with the provision of adult social care, and

(b) in relation to which Condition 1 or 2 is met.

(2) But a Local Commissioner may not conduct an investigation under this Part in respect of any action or matter described in Schedule 5A.

(3) Condition 1 is met if a complaint about the matter which satisfies sections 34C and 34D has been made to a Local Commissioner.

(4) Any question whether Condition 1 is met in relation to a matter is to be determined by a Local Commissioner.

(5) Condition 2 is met if—

(a) the matter has come to the attention of a Local Commissioner, and

(b) section 34E applies to the matter.

(6) Before investigating a matter under this Part a Local Commissioner must be satisfied that—

(a) the matter has been brought, by or on behalf of the person affected, to the notice of the adult social care provider to which it relates and that that provider has been afforded a reasonable opportunity to investigate the matter and to respond, or

(b) in the particular circumstances, it is not reasonable to expect the matter to be brought to the notice of that provider or for that provider to be afforded a reasonable opportunity to investigate the matter and to respond.

(7) In subsection (6) the reference to a person affected includes a reference to that person's personal representatives.

(8) In deciding whether to initiate, continue or discontinue an investigation, a Local Commissioner must, subject to the provisions of this section and sections 34C to 34E, act in accordance with the Local Commissioner's own discretion.

(9) Without prejudice to the discretion conferred by subsection (8), a Local Commissioner who is satisfied with action which the adult social care provider concerned has taken or proposes to take may in particular decide—

(a) not to investigate a matter, or

(b) to discontinue an investigation of a matter.

(10) Her Majesty may by Order in Council amend Schedule 5A by adding, omitting or changing a description of an action or matter.

(11) A statutory instrument containing an Order in Council made under subsection (10) is subject to annulment in pursuance of a resolution of either House of Parliament.

34C Who can complain E+W

(1) A complaint about a matter under this Part may only be made—

(a) by a member of the public who claims to have sustained injustice in consequence of the matter (“P”),

(b) by a person authorised in writing by P to act on P's behalf, or

(c) in accordance with subsection (2).

(2) Where a member of the public by whom a complaint about a matter might have been made under this Part (“D”) has died or is otherwise unable to authorise a person to act on D's behalf, the complaint may be made—

(a) by D's personal representatives (if any), or

(b) by a person who appears to a Local Commissioner to be suitable to represent D.

34D Procedure for making complaints E+W

(1) Subject to subsection (3), a complaint about a matter under this Part must be made—

(a) in writing, and

(b) before the end of the permitted period.

(2) In subsection (1)(b), the “permitted period” means the period of 12 months beginning with—

(a) the day on which the person affected first had notice of the matter, or

(b) if the person affected has died without having notice of the matter—

(i) the day on which the personal representatives of the person affected first had notice of the matter, or

(ii) if earlier, the day on which the complainant first had notice of the matter.

(3) A Local Commissioner may disapply either or both of the requirements in subsection (1)(a) and (b) in relation to a particular complaint.

34E Matters coming to attention of Local Commissioner E+W

(1) This section applies to a matter which has come to the attention of a Local Commissioner if—

(a) the matter came to the Local Commissioner's attention during the course of an investigation under Part 3 or this Part,

(b) (subject to subsection (3)) the matter came to the Local Commissioner's attention—

(i) before the person affected or that person's personal representatives had notice of the matter, or

(ii) in any other case, before the end of the permitted period, and

(c) it appears to the Local Commissioner that a member of the public has, or may have, suffered injustice in consequence of the matter.

(2) In subsection (1)(b)(ii), “the permitted period” means the period of 12 months beginning with—

(a) the day on which the person affected first had notice of the matter, or

(b) if the person affected has died without having notice of the matter, the day on which the personal representatives of the person affected first had notice of the matter.

(3) A Local Commissioner may disapply the requirement in subsection (1)(b) in relation to a particular matter.]