Section 9: Concerns, complaints and what to do if things go wrong
The authority, through the social work function, should inform the supported person that if they experience difficulties with any aspect of their assessment, they should in the first instance try to resolve matters with their social worker.
People should be supported to query and challenge decisions throughout their assessment, support planning and review processes, including their agreed personal outcomes. Section 13 of the 2013 Act specifically requires a local authority to offer the person another opportunity to choose one of the SDS options whenever it becomes aware of a material change in that person's circumstances.
At each stage, supported people have the right to the provision of accessible information, independent advocacy and mediation, the right to challenge a decision and to make a complaint.
See section on reviewing the needs of a supported person.
See also the SDS Framework of Standards (Standard 5: Accountability).
Making a complaint
Many problems or difficulties can be resolved through informal discussion. However, if a supported person remains dissatisfied the authority should make the person aware that they can make use of the local authority's complaints procedure.
Supported people, their families and carers have the right to access a simple, timely and accessible formal complaints procedure if they feel they have been unfairly or unreasonably treated, or if they wish to challenge a decision that the local authority has made about their support. Local authority complaints processes therefore must be compliant with the 2013 Act.
The person should be advised that in relation to complaints about any action, decision or apparent failing of the local authority they also have recourse through the Scottish Public Services Ombudsman (SPSO) once all other avenues have been exhausted.
Local support and independent advocacy organisations may have a role to play in supporting users and providing additional support and information. The authority, through its social work function, is under a duty to provide information about organisations and individuals who can provide independent advocacy services.
Complaints about service quality
Where the person uses a direct payment to employ a personal assistant or to purchase a service from a third or independent sector provider and where they are unhappy with that service, the authority should make it clear to the supported person that they should address any complaints that they may have about the services they purchase to the service providers or PA themselves.
Alternatively, a complaint can be made to the Care Inspectorate about any registered service or about the actions of the Care Inspectorate itself.
Human rights and equalities legislation
The Equality and Human Rights Commission website contains important information, including on additional routes to resolving the problem without taking legal action, and details of a helpline offering help and advice on issues relating to equality and human rights across England, Scotland (see also Scottish Human Rights Commission) and Wales. In Control Scotland has also published research in 2021 concerning complaints processes relating to Self-directed Support in Scotland.
While legal action should be an avenue of last resort, supported people or their representatives are entitled to consider further action through a Judicial Review (in limited circumstances), under the auspices of the Human Rights Act 1998 or the Equality Act 2010.
It is the intention of the Scottish Government to incorporate a number of UN human rights treaties into Scottish law, where subsequent legislation has the potential to provide specific rights relating to health and social care, social security and protection, and housing. For more information on this, see the National Task Force for Human Rights report (2021).
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