Textual Amendments
F1Pts. 2A, 2B inserted (1.11.2014) by Social Services and Well-being (Wales) Act 2014 (anaw 4), s. 199(2), Sch. 3 para. 2 (with Sch. 3 para. 3); S.I. 2014/2718, art. 2(b)
(1)This Part applies to the following matters—
(a)action taken by a care home provider in connection with the provision of accommodation, nursing or personal care in a care home in Wales;
(b)action taken by a domiciliary care provider in connection with the provision of domiciliary care in Wales;
(c)action taken by an independent palliative care provider in connection with the provision of a palliative care service in Wales.
(2)But this Part does not apply to—
(a)matters which may be investigated under Part 2, or
(b)matters described in Schedule 3A.
(3)The Welsh Ministers may by order amend Schedule 3A by—
(a)adding an entry,
(b)removing an entry, or
(c)changing an entry.
(4)Before making an order under subsection (3), the Welsh Ministers must consult the Ombudsman.
(5)No order is to be made under subsection (3) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.
(6)For the meaning of the following terms see sections 34R to 34T—
“care home”;
“care home provider”;
“domiciliary care”;
“domiciliary care provider”;
“palliative care service”;
“independent palliative care provider”.
(1)The Ombudsman may investigate a complaint about a matter to which this Part applies if—
(a)the complaint has been duly made or referred to the Ombudsman, and
(b)in the case of a complaint which relates to an independent palliative care provider, the condition in subsection (2) is met.
(2)The condition is that the independent palliative care provider has received public funding, within the three years before the date of the action to which the complaint relates, in respect of a palliative care service that it provides in Wales.
(3)In subsection (2) “public funding” means funding from—
(a)the Welsh Ministers,
(b)a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006,
(c)an NHS Trust, or
(d)a county council or county borough council in Wales.
(4)A complaint is “duly made” to the Ombudsman if (but only if)—
(a)it is made by a person who is entitled under section 34D to make a complaint to the Ombudsman,
(b)before the complaint is made—
(i)the matter to which it relates has been brought, by or on behalf of the person affected, to the notice of the provider to whom it relates, and
(ii)the provider has been given a reasonable opportunity to investigate the matter and to respond, and
(c)the requirements of section 34E are met in respect of it.
(5)A complaint is “duly referred” to the Ombudsman if (but only if)—
(a)it is made by a person who is entitled under section 34D to make a complaint to the Ombudsman, and
(b)the requirements of section 34F are met in respect of it.
(6)It is for the Ombudsman to determine whether the requirements of subsection (1) have been met in respect of a complaint.
(7)Where the Ombudsman determines that the requirements of subsection (1) have not been met in respect of a complaint because the requirements of subsection (4)(b), section 34E or section 34F(1)(a)(ii) or (b)(ii) have not been met in respect of that complaint, the Ombudsman may nonetheless investigate the complaint if—
(a)it relates to a matter to which this Part applies, and
(b)the Ombudsman thinks it reasonable to do so.
(8)It is for the Ombudsman to decide whether to begin, continue or discontinue an investigation.
(9)The Ombudsman may take any action which he or she thinks may assist in making a decision under subsection (8).
(10)The Ombudsman may begin or continue an investigation into a complaint even if the complaint has been withdrawn.
(1)The Ombudsman may take any action he or she considers appropriate with a view to resolving a complaint which he or she has the power to investigate under section 34B.
(2)The Ombudsman may take action under this section in addition to or instead of conducting an investigation into the complaint.
(3)Any action under this section must be taken in private.
(1)The persons entitled to make a complaint to the Ombudsman are—
(a)a member of the public (referred to in this Part as “the person aggrieved”) who claims or claimed to have sustained injustice or hardship as a result of a matter to which this Part applies,
(b)a person authorised in writing by the person aggrieved to act on that person's behalf, or
(c)if the person aggrieved is not capable of authorising a person to act on his or her behalf (for example because the person has died), a person who appears to the Ombudsman to be appropriate to act on behalf of the person aggrieved.
(2)“Member of the public” does not include a person acting in his or her capacity as—
(a)a care home provider,
(b)a domiciliary care provider,
(c)an independent palliative care provider, or
(d)a listed authority.
(3)It is for the Ombudsman to determine any question of whether a person is entitled under this section to make a complaint.
(1)The requirements mentioned in section 34B(4)(c) are that the complaint must be made—
(a)in writing, and
(b)before the end of the permitted period.
(2)In subsection (1)(b) (and in section 34F(1)(a)(ii)) “the permitted period” means—
(a)where the person aggrieved has notice of the matter before the date on which section 34B comes into force, the period of 12 months beginning with the date on which that section comes into force, and
(b)in any other case, the period of 12 months beginning with the day on which the person aggrieved first has notice of the matter.
(3)It is for the Ombudsman to determine whether the requirements of subsection (1) are met in respect of a complaint.
(1)The requirements mentioned in section 34B(5)(b) are that the complaint—
(a)must have been made to the provider to whom it relates—
(i)by a person who would have been entitled under section 34D to make the complaint to the Ombudsman, and
(ii)before the end of the permitted period (within the meaning given by section 34E(2)), and
(b)must be referred to the Ombudsman—
(i)in writing, and
(ii)before the end of the period of 12 months beginning with the day on which the complaint was made to the provider.
(1)If the Ombudsman decides under section 34B(8) not to begin an investigation into a complaint or to discontinue an investigation, the Ombudsman must prepare a statement of the reasons for that decision.
(2)The Ombudsman must send a copy of the statement to—
(a)the person who made the complaint, and
(b)the provider to whom the complaint relates.
(3)The Ombudsman may also send a copy of the statement to any other persons he or she thinks appropriate.
(4)The Ombudsman may publish a statement under this section if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, he or she considers that it would be in the public interest to do so.
(5)The Ombudsman may supply a copy of the published statement, or part of that statement, to any person who requests it.
(6)The Ombudsman may charge a reasonable fee for supplying a copy of a statement, or part of a statement, under subsection (5).
(7)The following information must not be included in a version of a statement sent to a person under subsection (2)(b) or (3) or published under subsection (4)—
(a)the name of a person other than the provider to whom the complaint relates;
(b)information which, in the opinion of the Ombudsman, is likely to identify such a person and which, in the Ombudsman's opinion, can be omitted without impairing the effectiveness of the statement.
(8)Subsection (7) does not apply if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, the Ombudsman considers that it would be in the public interest to include that information in that version of the statement.
(1)If the Ombudsman decides under section 34B(8) to conduct an investigation into a complaint, he or she must—
(a)give the provider to whom the complaint relates an opportunity to comment on the allegations contained in the complaint, and
(b)give any other person who is alleged in the complaint to have taken or authorised the action complained of an opportunity to comment on the allegations relating to that person.
(2)An investigation must be conducted in private.
(3)Subject to subsections (1) and (2), the procedure for conducting an investigation is that which the Ombudsman thinks appropriate in the circumstances of the case.
(4)The Ombudsman may, among other things—
(a)make any inquiries which he or she thinks appropriate, and
(b)determine whether any person may be represented in the investigation by an authorised person or another person.
(5)In subsection (4) “authorised person” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act).
(6)The Ombudsman may pay to the person who made the complaint and to any other person who attends or supplies information for the purposes of the investigation—
(a)sums in respect of the expenses properly incurred by them, and
(b)allowances to compensate for the loss of their time.
(7)The Ombudsman may attach conditions to those payments.
(1)This section applies for the purposes of an investigation under this Part.
(2)The Ombudsman may require a person he or she thinks is able to supply information or produce a document relevant to the investigation to do so.
(3)The Ombudsman has the same powers as the High Court in relation to—
(a)the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and
(b)the production of documents.
(4)The Ombudsman may require a person he or she thinks is able to supply information or produce a document relevant to the investigation to provide any facility the Ombudsman may reasonably require.
(5)Subject to subsection (6), no person may be compelled to give any evidence or produce any document which the person could not be compelled to give or produce in civil proceedings before the High Court.
(6)The Crown is not entitled to any privilege in relation to the production of documents or the giving of evidence that would otherwise be allowed by law in legal proceedings.
(7)Where an obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty's service has been imposed by an enactment or rule of law, the obligation or restriction does not to apply to the disclosure of information for the purposes of the investigation.
(1)If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a person, he or she may issue a certificate to that effect to the High Court.
(2)The condition is that the person—
(a)without lawful excuse, has obstructed the discharge of any of the Ombudsman's functions under this Part, or
(b)has done an act in relation to an investigation which, if the investigation were proceedings in the High Court, would constitute contempt of court.
(3)If the Ombudsman issues a certificate, the High Court may inquire into the matter.
(4)If the High Court is satisfied that the condition in subsection (2) is met in relation to the person, it may deal with that person in the same manner as it may deal with a person who has committed contempt in relation to the High Court.
(1)This section applies to investigations under this Part unless section 34N applies.
(2)The Ombudsman must, after conducting an investigation into a complaint about a matter to which this Part applies—
(a)prepare a report on the findings of the investigation (“an investigation report”), and
(b)send a copy of the report to the appropriate persons.
(3)The appropriate persons are—
(a)the person who made the complaint,
(b)the provider to whom it relates,
(c)any other person who is alleged in the complaint to have taken or authorised the action complained of, and
(d)the Welsh Ministers.
(4)The Ombudsman may also send a copy of the report to any other persons he or she thinks appropriate.
(5)The Ombudsman may publish the report if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, he or she considers that it would be in the public interest to do so.
(6)The Ombudsman may supply a copy of the published report, or part of that report, to any person who requests it.
(7)The Ombudsman may charge a reasonable fee for supplying a copy of a report, or part of a report, under subsection (6).
(8)The following information must not be included in a version of a report sent to a person under subsection (3)(b) or (c) or (4) or published under subsection (5)—
(a)the name of a person other than the provider to whom the complaint relates;
(b)information which, in the opinion of the Ombudsman, is likely to identify such a person and which, in the Ombudsman's opinion, can be omitted without impairing the effectiveness of the report.
(9)Subsection (8) does not apply if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, the Ombudsman considers that it would be in the public interest to include that information in that version of the report.
(1)The Ombudsman may arrange for a notice about an investigation report to be published—
(a)in one or more newspapers, or
(b)by means of broadcast or other electronic media.
(2)The notice may, for example—
(a)provide a summary of the Ombudsman's findings,
(b)specify an address or addresses at which a copy of the published report can be inspected during ordinary office hours and from which a copy of that report (or part of that report) may be obtained, and
(c)specify a website address at which a copy of the published report can be viewed.
(3)The provider to whom the report relates must, if required to do so by the Ombudsman, reimburse the Ombudsman for the reasonable costs of arranging the publication of the notice.
(4)In deciding whether it is appropriate to make arrangements under subsection (1), the Ombudsman must take into account—
(a)the public interest,
(b)the interests of the person aggrieved, and
(c)the interests of any other persons the Ombudsman thinks appropriate.
(1)This section applies where the Ombudsman has concluded in an investigation report that the person aggrieved has sustained injustice or hardship as a result of the matter investigated.
(2)The provider to whom the matter relates must consider the report and notify the Ombudsman before the end of the permitted period of—
(a)the action the provider has taken or proposes to take in response to the report, and
(b)the period before the end of which the provider proposes to take that action (if that action has not already been taken).
(3)In subsection (2) “the permitted period”means—
(a)the period of one month beginning on the date on which the authority receives the report, or
(b)a longer period specified by the Ombudsman in writing (if any).
(1)This section applies if, after the Ombudsman has conducted an investigation under this Part—
(a)the Ombudsman concludes that the person aggrieved has not sustained injustice or hardship as a result of the matter complained of, and
(b)the Ombudsman is satisfied that the public interest does not require sections 34K to 34M to apply.
(2)This section also applies if, after the Ombudsman has conducted an investigation under this Part—
(a)the Ombudsman concludes that the person aggrieved has sustained injustice or hardship as a result of the matter complained of,
(b)the provider to whom the complaint relates agrees to implement, before the end of the permitted period, any recommendations that the Ombudsman makes, and
(c)the Ombudsman is satisfied that the public interest does not require sections 34K to 34M to apply.
(3)In subsection (2)(b) “the permitted period”means—
(a)a period agreed between the Ombudsman, the provider and the person who made the complaint, or
(b)if the Ombudsman thinks that no such agreement can be reached, a period specified by him or her in writing.
(4)The Ombudsman may decide to prepare a report on his or her findings under this section, rather than under section 34K; and if the Ombudsman decides to do so, sections 34K to 34M do not apply.
(5)If a report is prepared under this section, the Ombudsman—
(a)must send a copy of the report to the person who made the complaint and the provider to whom the complaint relates, and
(b)may send a copy of the report to any other persons he or she thinks appropriate.
(6)The Ombudsman may publish the report if, after taking account of the interests of the persons aggrieved and any other persons the Ombudsman thinks appropriate, he or she considers it to be in the public interest to do so.
(7)The Ombudsman may supply a copy of a report published under subsection (6), or a part of that report, to any person who requests it.
(8)The Ombudsman may charge a reasonable fee for supplying a copy of a report, or part of a report, under subsection (7).
(9)The following information must not be included in a version of the report sent to a person under subsection (5) or published under subsection (6)—
(a)the name of a person other than the provider to whom the complaint relates;
(b)information which, in the opinion of the Ombudsman, is likely to identify such a person and which, in the Ombudsman's opinion, can be omitted without impairing the effectiveness of the report.
(10)Subsection (9) does not apply if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, the Ombudsman considers that it would be in the public interest to include that information in that version of the report.
(1)The Ombudsman may prepare a special report under section 34P if case 1, 2 or 3 applies.
(2)Case 1 applies if—
(a)the Ombudsman has concluded in an investigation report that the person aggrieved has sustained injustice or hardship as a result of the matter investigated, and
(b)one of the circumstances in subsection (3) applies.
(3)The circumstances are that—
(a)the Ombudsman has not received the notification required under section 34M before the end of the period permitted under that section;
(b)the Ombudsman has received that notification but is not satisfied with—
(i)the action which the provider has taken or proposes to take, or
(ii)the period before the end of which the provider proposes to have taken that action;
(c)the Ombudsman has received that notification but is not satisfied that the provider has, before the end of the permitted period, taken the action that the provider proposed to take.
(4)In subsection (3)(c) “the permitted period” means—
(a)the period referred to in section 34M(2)(b), or
(b)a longer period specified by the Ombudsman in writing (if any).
(5)Case 2 applies if—
(a)the Ombudsman has prepared a report under section 34N by virtue of subsection (2) of that section, and
(b)he or she is not satisfied that the provider has implemented the Ombudsman's recommendations before the end of the permitted period.
(6)In subsection (5)(b) “the permitted period” means—
(a)the period referred to in section 34N(2)(b), or
(b)a longer period specified by the Ombudsman in writing (if any).
(7)Case 3 applies if—
(a)a complaint in respect of a provider has been resolved under section 34C,
(b)in resolving the complaint, the Ombudsman has concluded that the person aggrieved has sustained injustice or hardship as a result of the matter complained of,
(c)the provider has agreed to take particular action before the end of a particular period, and
(d)the Ombudsman is not satisfied that the provider has taken that action before the end of the permitted period.
(8)In subsection (7)(d) “the permitted period” means—
(a)the period referred to in subsection (7)(c), or
(b)a longer period specified by the Ombudsman in writing (if any).
(1)A special report must—
(a)set out the facts which entitle the Ombudsman to prepare the special report (that is, the facts on the basis of which case 1, 2 or 3 of section 34O applies), and
(b)make such recommendations as the Ombudsman thinks fit as to the action which, in his or her opinion, should be taken—
(i)to remedy the injustice or hardship to the person aggrieved, and
(ii)to prevent similar injustice or hardship being caused in the future.
(2)If the special report is prepared because case 1 of section 34O applies, the Ombudsman must send a copy of the report to each person to whom a copy of the section 34K report was sent under section 34K(2)(b).
(3)If the special report is prepared because case 2 or 3 of section 34O applies, the Ombudsman must send a copy of the report to the person who made the complaint and the provider to whom the complaint relates.
(4)The Ombudsman may send a copy of a special report to any other persons he or she thinks appropriate.
(5)The Ombudsman may publish a special report.
(6)The Ombudsman may supply a copy of a published special report, or a part of such a report, to any person who requests it.
(7)The Ombudsman may charge a reasonable fee for supplying a copy of a special report, or part of such a report, under subsection (6).
(8)The following information must not be included in a version of a special report sent to a person under subsection (2), (3) or (4) or published under subsection (5)—
(a)the name of any person other than the provider in respect of whom the complaint was made;
(b)information which, in the opinion of the Ombudsman, is likely to identify any such person and which, in the Ombudsman's opinion, can be omitted without impairing the effectiveness of the special report.
(9)Subsection (8) does not apply if, after taking account of the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate, the Ombudsman considers that it would be in the public interest to include that information in that version of the special report.
(1)The Ombudsman may arrange for a notice about a special report to be published—
(a)in one or more newspapers, or
(b)by means of broadcast or other electronic media.
(2)The notice may, for example—
(a)provide a summary of the Ombudsman's findings,
(b)specify an address or addresses at which a copy of the published report can be inspected during ordinary office hours and from which a copy of that report (or part of that report) may be obtained, and
(c)specify a website address at which a copy of the published report can be viewed.
(3)The provider to whom the report relates must, if required to do so by the Ombudsman, reimburse the Ombudsman for the reasonable costs of arranging the publication of the notice.
(4)In deciding whether to make arrangements under subsection (1), the Ombudsman must take into account—
(a)the public interest,
(b)the interests of the person aggrieved, and
(c)the interests of any other person the Ombudsman thinks appropriate.
(1)This section applies for the purposes of this Act.
(2)“Care home” has the same meaning as in the Care Standards Act 2000.
(3)“Care home provider” means a person who carries on a care home.
(4)Action is to be treated as action taken by a care home 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 a care home provider if—
(a)that provider provides, by means of an arrangement with another person, accommodation, nursing or personal care in a care home in Wales for a person falling within section 3(2) of the Care Standards Act 2000, and
(b)the action is taken by or on behalf of the other person in carrying out the arrangement.
(1)This section applies for the purposes of this Act.
(2)“Domiciliary care” means personal care provided in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.
(3)“Domiciliary care provider” means a person who carries on an activity which involves the provision of domiciliary care, but it does not include an individual who—
(a)carries on the activity otherwise than in partnership with others,
(b)is not employed by a body corporate or unincorporated association to carry it on,
(c)does not employ any other person to carry out the activity, and
(d)provides or arranges the provision of domiciliary care to fewer than four persons.
(4)Action is to be treated as action taken by a domiciliary 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 a domiciliary care provider if—
(a)that provider provides domiciliary 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.
(1)This section applies for the purposes of this Act.
(2)“Palliative care service” means a service the main purpose of which is to provide palliative care.
(3)“Independent palliative care provider” means a person who—
(a)provides a palliative care service, and
(b)is not a Welsh health service body.
(4)Action is to be treated as action taken by an independent palliative 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 independent palliative care provider if—
(a)that provider provides palliative 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.]