In December 2023 the Local Government and Social Care Ombudsman published its annual report. A section on internal reviews (1 – P15 see section: Quality of our decision statements – internal reviews) describes how the LGSCO randomly samples 21 decision statements from across the different complaint areas three times per year to assess the quality of its decision making.
A decision statement is a final decision made at either the assessment stage (i.e. deciding whether to investigate a complaint or not) or at the outcome of an investigation. The decision statements are selected from the assessment, investigation and joint working teams and reviewed by senior staff including the Ombudsman himself. The target is for 60 out of 63 sampled decision statements to meet the standard of ‘reasonable and defensible’ (2 – ‘Reasonable and defensible’ is a high bar because it suggests that only decision statements that are unreasonable or indefensible will be flagged, which is a higher test than, say, decisions that contain non-insignificant errors) annually (around 95 percent). In 2022-23, 58 out of 63 statements met the target.
Feedback on decision statements that are not found to meet the standard is given to the individual investigators and their managers and sometimes decisions are amended, or complaints re-opened, although not always. General advice is provided to all investigators to avoid similar errors in future.
Although 58 out of 63 statements meeting the target does sound high, this equates to approximately 8 percent of decisions not making the grade. Given how many decision statements the LGSCO is making in total, a significant number of complaints will contain significant errors or have been ‘wrongly’ decided.
In 2022-23 there were 6205 complaints dealt with by initial investigation (i.e. at the assessment stage) which could mean around 490 decision statements were not ‘reasonable or defensible’, and 4301 detailed investigations dealt with which could mean around 340 similarly defective final decisions. These numbers are open to a certain amount of error because we don’t know if the decision statements are truly randomly sampled and the sample size is small compared to the total number of complaints. The actual number of ‘wrong’ decision statements could be bigger or smaller.
The LGSCO is getting a comparable percentage of decisions ‘wrong’ each year. In 21-22 it was 9 percent, in 20-21 it was 15 percent and in 19-20 between 4-10 percent. These equate to significant numbers of complaints ‘wrongly’ decided.
As stated above, senior staff will sometimes re-open a complaint because the decision statement is found to be not ‘reasonable or defensible’ during the internal quality review process, although the criteria for doing so is opaque. Unfortunately, the LGSCO doesn’t provide this option to a complainant who thinks a decision is ‘wrong’. There is no right of appeal against LGSCO decisions, only a narrow right to request a review. The LGSCO will not re-open a complaint where it has got a decision ‘wrong’, only when evidence is subsequently provided by the complainant that shows the decision was based on demonstrably inaccurate facts, or that new evidence has come to light which was not previously available. Faced with a decision that a complainant thinks is ‘wrong’, the only option available is judicial review, which will require legal advice and some funding. (3 – Legal Help may be available to cover most of the cost.)