Council officers can abuse with immunity to complaint!

Did you know that you can NOT complain about the actions or inactions of a council officer if you have a contract with the Council?

Neither did I until late last week when Warwickshire County Council (WCC) informed me of such.  This is a huge matter of public interest especially as councils up and down the land have contracts with a huge number of agencies and people and with outsourcing that is rising sharply in many councils.

What WCC appear to be saying is that if a council officer physically assaults me at a meeting over a contract matter I can press criminal charges against them but Warwickshire County Council will not investigate or hear a complaint I make about the council officer or indeed councillor! This is the official policy of WCC and means council officers and councillors are immune to any complaint whatsoever if the matter occurs over a contractual matter.

Think about this for a minute and it means that a tenant (and a tenancy is a contract) can’t make a complaint against the Council if a council officer assaults or abuses them…that is according to WCC’s head of law and governance and deputy monitoring officer.  That can’t be right yet it is the position of WCC and a position they have adopted in refusing to investigate complaints against senior officers. Moreover because of the wording of the response from WCC this is not just a local policy but applies to every council in the UK as I emphasise below.

The Council’s complaints procedures are available on its website (http//www.warwickshire.gov.uk.complaints). There is no contractual or statutory requirement to have a complaints procedure for contractual matters.”

Background – General

About 90% of my personal caseload of work since 2003 has been representing SP providers in challenges to Local Authorities with whom they are funded by means of contract in Supporting People or SP.  Not the type of work I envisaged when helping providers claim SP funding but became necessary when immediately after SP went live in 2003 LAs began to try to take money back off SP providers.

LA’s conveniently forgot that SP was and is a contract and not a grant or grant-in-aid or other funding, but a contract with contract terms that largely limit actions on both sides to the contract terms.

Because LAs receive SP Grant from central government they have often tried to say it was a relationship of ‘grant’ between them and SP providers, but it is not and is a contract. LAs wanting to make cuts then wanted to have the flexibilities to treat the SP contract payment as a grant or in simple terms do as they wished yet this is just one of the many mistakes they make and when they do I challenge them on behalf of the SP provider. That in simple terms has been my primary job for the past 9 years and more

Today, for the first time I reveal details of an ongoing case. A case which has seen a council behave appallingly and they have gone so far to prevent any resolution that now they are using this bizarre statement and position of ‘immunity to complaint’ to prevent a complaint going ahead against a senior officer. That strategy is a huge public interest matter and why I have chosen to make it public.

Background – Specific

During lengthy correspondence with WCC since June this year I had just cause to issue a complaint against a senior director of the Council. The response I then got back on 14 November 2012 said:

“Your complaints about officers do not fall within the Council’s social care or corporate complaints procedures

I wrote back saying this has to be a nonsense and as a public authority there has to be a complaint procedure in place especially when the absence of one would give council officers and councillor immunity from scrutiny and impunity to act as they liked. On 13th December I received the following back from WCC:-

“The Council’s complaints procedures are available on its website (http//www.warwickshire.gov.uk.complaints). There is no contractual or statutory requirement to have a complaints procedure for contractual matters.”

This is a huge public interest matter.

IF, as WCC maintain, there is no complaint procedure that covers actions or inactions of council officers and presumably councillors during a contractual dispute such as SP, because it is a contractual dispute and there is no contractual or statutory requirement to have a complaint procedure then: –

  • A tenant of a council (and a tenancy is a contract) can be assaulted by a council officer and press criminal charges but not see a complaint investigated
  • A tenant of a council who  is abused (physically, sexually, financially or emotionally) by a council officer or councillor can press criminal charges but still the Council would not entertain a complaint!

That is clearly outrageous.

Yet WCC are going even further than this and saying a matter of complaint that arises during a contractual matter means that the many other areas of complaint a council will and has to look into are overridden by the fact the complaint arose during a contractual matter.

Complaint issue – specific

I made two complaints about two officers from Warwickshire County Council during an ongoing Dispute Resolution process part of the Supporting People contract which is still largely the same with every SP service provider in the country. Note that neither of the complaints was about being assaulted and that was used for effect above yet is a valid point. The second of these complaints was because a high-ranking officer who had been appointed by the Chief Executive, Jim Graham, to resolve the disputed matters yet who failed not only to attempt to resolve the disputed matters within 28 days which is a contractual obligation on WCC but didn’t even bother responding to my letter within 28 days.

As anyone who deals with public authority’s and especially Councils will know, they all have a policy of responding to correspondence within a set time, usually 7 or 10 working days. Yet Warwickshire County Council’s view is that no complaint can be applied to a contractual matter then I cannot complain that this officer has breached the Council’s own policy! That senior officer simply gets away with it as does her deputy the subject of the first complaint.

This is what I mean by WCC going even further. The council officer has clearly and unambiguously breached the council’s policy on responding to correspondence. The fact that SP has a legally binding contract between the parties and the Council has clearly breached its legal obligation means that the Council can be sued for breach of contract but the officer who didn’t respond cannot be subject to a complaint!

The council officer has also clearly breached the council’s own code of conduct yet sees her becoming immune to a complaint because, in WCC’s view, this is a contractual matter!!

This immunity to complaint is a huge public interest matter…unless of course it is just Warwickshire County Councils way of covering up for the incompetence of a senior director!  More likely it is being used as an excuse not to investigate any complaint yet is a huge error of judgement WCC has made as that position and strategy becomes a huge public interest matter and not just for WCC but for all councils and all who have contracts with them.

It is worth looking at the wording from the Head of Law and Governance again:

“There is no contractual or statutory requirement to have a complaints procedure for contractual matters.”

That applies to every single council if the statement is true and not just WCC.

Background – Specific

From hundreds of contractual disputes I have personal knowledge and involvement with since 2003 and these go right across the UK Councils make regular and repeated mistakes.  A simple and obvious mistake is, as in this specific case, the LA decided unilaterally to reduce the Contract Price or funding to the provider (by 75% no less!) and ignored the contract terms that says this needs to be by way of a written and agreed variation to the contract. WCC had clearly breached the contract terms in doing this yet they stubbornly maintained they were able to do this because they maintained the contract said the funding was for “up to” the amount. It wasn’t and the contract didn’t say that at all and for completeness it is a Block Gross contract and not a Block Subsidy type in any case.

WCC now say they don’t rely on their previous view for unilaterally reducing the funding without agreement!

LA’s like such euphemisms and often say during dispute resolution that I or my client ‘misunderstood’ and that they had no intention of cutting funding etc, and often when documentary evidence from them says precisely that! But as the matter is resolved and the LA has to go and find another easy target to meet their cuts target.

Note well: in very simplistic terms LAs can only do what the contract terms allow or permit them to do and they don’t like this ‘constraint’ as they see it and wish to do as they please which largely they can do with a grant form of funding.

Note very well: In 9 years of challenging LAs over SP funding cuts and other SP matters I have never before gone public with details of a case that is still unresolved. Despite meeting many very belligerent and intransigent council officers and positions along the way this is the first time I have gone public with an ongoing matter precisely because it is a huge matter of public interest.

The rub of this matter is that WCC having seen very senior officers exposed (rightly) to complaint has tried to avoid such action by claiming that contractual matters aren’t covered by complaints policy. That is not only risible in itself and akin to a cover-up; and it is a huge public interest matter. WCC has also said this matter is costing too much and they have to think about the costs to the public purse!!

A policy of we won’t investigate or meet our legal commitments in the contract terms as it is too costly!!

WCC have also acted on other errant information passed to them by another local authority. That is not just my view that it is errant by the way, it is the view upheld by the Ombudsman in two separate maladministration complaints my client had against this other council yet even when we informed WCC of this by giving them a copy of the ombudsman unpublished they still maintained their errant course of action!

In summary at this point the above brief overview catalogues an appalling attitude by WCC. They have made mistake upon mistake and in an attempt to cover up their repeated ‘bad faith’ in this case they have now stated a policy of ‘immunity to complaint’ which is a major public interest issue to every SP provider in the country.

It is also an issue of major concern to every person or agency that has a contractual relationship with a local authority:

to every construction worker, every binman, every IT provider, every repairs contractor, most schools and every agency that holds a contract with any council.

A strategy from WCC of raising a huge matter of public interest and public accountability all for the sake of not conducting a complaint against a senior officer! Of course if WCC had not been so bloody minded and not acted in bad faith then none of this would have become known.

If that reminds you of a little boy eventually telling a huge number of lies each one getting bigger to cover up a very small white lie…

Never before have I felt the need to discuss matters of challenge in the public arena before they are resolved. Never before has a council dug a hole that big that it becomes necessary to raise awareness of what is a huge public interest matter. Never before have I felt the need or had the inclination to ‘name and shame’ certain council officers…not until now that is. Usually the threat of external scrutiny or the threat of going to the press has been enough to bring councils to their senses and resolve matters amicably and professionally. But not in this case.

WCC have gone so far in attempting to keep any form of scrutiny away from their ineptitude and breaches of contract and done so much to cover their ineptitude of their officers that they have created a situation which is of huge national public interest – the immunity to complaint and scrutiny of council officer’s actions under a contract.

I don’t think that is right and neither should anyone reading this.

I have spoken over the weekend with friends and colleagues some of whom are senior managers in social care at local authorities.  They are staggered with this ‘immunity to complaint’ position adopted by WCC and presumably the law across all councils and public authorities.  They agree that it can mean a council officer abusing a vulnerable person yet that person will only have redress via a criminal action and can’t issue a complaint against a council officer or councillor. Others have commented that all councils safeguarding policies will need to be rewritten because of this issue.

A strong argument knowing the full facts of this case can be that the council has abused the vulnerable persons this particular contract covers.  Yet I have never seen any safeguarding policy of any council which details how to issue a safeguarding complaint against the host council.  That matter which I have discussed before becomes even starker given this councils ‘immunity to complaint’ position as the only recourse appears to be a criminal action after the fact and after abuse has occurred.

It is not only absurd that WCC has an ‘immunity to complaint’ policy it is extremely dangerous and offensive and gives their officers and councillors impunity for their (in)actions in such matters.

SP by only being discretionary and a power of local authorities unlike care which is statutory and presumably is covered by WCC’s complaint policy in social care has the above anomaly and dangerous omission.  Where a situation like this one exists and care and support are being delivered – and that accounts for a huge swathe of supported living services where the support element is contractual – then WCC’s policy would appear to cover complaint if the matter was a care aspect but not if it is a support issue.  If WCC’s position is correct that there is no contractual or statutory requirement for a council to have a complaint procedure in contractual matters is correct, and I suspect that is the case, then this is a huge and dangerous omission of scrutiny and of policy.

While SP providers have a contractual obligation to have a complaints policy as a standard clause in the SP contract if for example a council reviewing officer was the subject of a residents complaint then WCC could say as there is no complaint policy mandated by statute or by contract then the service user complaint against a reviewing officer would not be investigated!

Yet it would also apply to every bin collection contract every repair and maintenance contract and every outsourced contract a council holds and becomes a matter of huge public interest.  Councils like WCC in this case are selling vulnerable people short and neglecting their position as protectors of vulnerable people.  That needs to change and change quickly.

To think if WCC had acted professionally and with any semblance of good faith in this matter they would have been spared the indignity of this name and shame.  Yet in seeking to cover up and in seeking not to investigate a legitimate complaint at any cost they have brought this on themselves.  Though perhaps we should all be thankful that WCC’s intransigence and bad faith in their conduct in these matters has raised an issue of national public interest and one that needs to be resolved quickly and especially given council’s rush to outsource and place many services on a contractual basis.

Note: For the avoidance of any doubt whatsoever it has been my decision and my decision alone to draft and release this paper and not my clients, the support provider.

I will update this post as and when any new responses come to light

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4 thoughts on “Council officers can abuse with immunity to complaint!

  1. A Conservative council I note. In their own minds, above the law. We’re seeing too much of this thinking from the right in general. I go now to munch thoughtfully on my cake…

  2. Your comment about tenants not being able to complian is a red herring. I doubt Warwickshire County Council has any social housng as its normally the District Council that has the housing and even if it did it has to have a complainst procedure for tenants.

    1. It is not a red herring at all. All councils including county councils have some property they rent even if this is just a throwback to caretakers / concierge at care schemes. However, the point applies to all who have a contractual arrangement with a council not just tenants, so that includes all outsourced services

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