What is this ‘Monitoring officer’ information for?
The names and email addresses have been collated and presented in 2024 on the post about the Monitoring Officer being a BALLISTIC missile (a good search term on the site) for the purpose of publicising the route for challenge, that is available to anyone who is affected by a council’s adult social services decision – where they are not only unhappy with the decision but they also have reason to think that the decision may have been made unlawfully, in a public law sense.
That is, outside of the wording of the statute or regulations governing it; or so unreasonably that no reasonable authority could have made the decision or taken it up as stance; or in breach of human rights or the common law rules of procedural fairness.
Anyone (within reason) who is dissatisfied with any social services decision made by the local authority can make a complaint about that decision. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 Complaints regulations.
The local authority’s complaints arrangements must ensure that those who make complaints – receive, as far as reasonably practicable, assistance to enable them to understand the complaints procedure or advice on where to obtain such assistance. That does not extend to a right to an independent Advocate, please note.
The complaint process can take ages, and the complaints scrutineer cannot tell the council to change its policies or practices, but only whether the staff failed to live up to those, if the complaint was justified.
Another drawback is that the complaint system can’t be made to deliver an injunction to continue a disputed budget or plan, pending resolution of the complaint. And one can’t go to the local government ombudsman about maladministration alleged to have caused injustice, until one has at least tried to complain.
The real problem with the complaint system is that the people who consider complaints are not lawyers, and they don’t have to be. The complaint system is not meant to address matters of law, as such.
So where a decision may have been flawed by errors about what the law means, or how it should be applied, or other types of unlawfulness, the complaint system is unlikely to be regarded as an alternative adequate remedy such as might defeat an application for permission to apply for judicial review.
That’s a good thing, for those who want to bring legal proceedings and make legal history and precedents that others can point to! But does that mean that the right thing to do when dissatisfied with an assessment or a care plan is to threaten legal proceedings straight away?
No! Most people don’t want to bring legal proceedings against the council that is meeting their or their loved one’s care needs, however inadequately. Most people haven’t got the time, skills or money to even think about legal proceedings.
It’s worth remembering that there is no appeal, against a decision about assessment or a care plan or a personal budget – please note: short of legal proceedings, it’s often thought that there’s ONLY a complaint or what tends to be called internal review, up through 2 or 3 more layers of overworked staff… and then only if you know to ask for one of those to be instigated. That kind of management review is not statutory, but it is obliquely referred to in the Guidance, if disputes arise or agreement is not reached.
See the Guidance, and get your council to do this FIRST:
10.86 In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure.
BUT THERE IS ANOTHER OPTION! Why the guidance doesn’t mention it is beyond us, and it is just the way England works, or doesn’t, in our opinion.
There is also the council’s statutory Monitoring Officer as an addressee of a special kind of complaint. This route tends rarely to be mentioned anywhere in local government advice and information services or in central government information, which is a bit of a shame, since it’s free, and saves a lot of aggravation for everyone (everyone except the poor Monitoring Officer, that is).
Why bother to take this extra step, if you’ve got nowhere, already? Well, the Local Government Ombudsman need not even admit one’s complaint to his or her scrutiny, if one has a legal remedy which it is not unreasonable to expect one to use. Writing to the Monitoring Officer about it, first, ought to help satisfy the LGO about one’s having tried hard first, to resolve one’s legal issue, in a sensible proportionate way, without spending money or risking money which is needed badly for someone’s quality of life.
What does the Monitoring Officer have to do? And where do I find him or her?
s5(2) of the Local Government and Housing Act 1989 says this: it shall be the duty of a relevant authority’s Monitoring Officer, if it at any time appears to him, that any proposal, decision or omission by the authority, …has given rise to, or is likely to, or would give rise to—
- a contravention … of any enactment (that means a statute, like the Care Act, or Regulations like the Assessment Regulations) or rule of law (that’s a principle in the wider COMMON law which is applicable to public bodies)
… to prepare a report to the authority with respect to that proposal, decision or omission…. and to arrange for a copy of it to be sent to each member of the authority.
That means that unless the Monitoring Officer can knock heads together to pull the Adult Social Care team back ot the path of legal actions and decisions, the whole elected membership needs to get involved and remind the department in whose name they are all acting.
All such actions and proposals are automatically suspended during the time when the report is being considered by the Members.
This is a personal, non-delegable duty, for the named MO or their Deputy, although s/he can take advice from specialist lawyers if the matter is not clear to them, using jsut their own expertise.
The MO is protected from dismissal other than through special steps, thus guaranteeing their independence.
The role is a high level form of governance and management of legal risk, designed to minimise the need for legal proceedings.
The elected members – when they get a Monitoring Officer’s report – must consider it within 21 days. In most cases that response period would be bound to reassure the Monitoring Officer that the relevant issue had been properly considered and sorted out – one way or the other, if the council fancies being sued in the Administrative Court.
When the Monitoring Officer has received a referral, she or he cannot just NOT WRITE BACK, if one has raised a coherent assertion of a breach of the law.
If the Monitoring Officer genuinely doesn’t think that what one has flagged up amounts to any of the above, s/he should give reasons for their opinion, and if those are refused, that in itself is a potential piece of maladministration which one could go to the Ombudsman about.
The council is obliged by the statute to furnish the MO with the resources to do the job, so if s/he needs a barrister’s opinion, they have to pay for that.
Independent advocates’ reports – reports that they are required to write, where they think the council has acted unlawfully, should be sent to this person as well as to the council: see the Guidance on the advocates’ role.
7.50 There will be times when an advocate will have concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The advocate must write a report outlining their concerns for the local authority. The local authority should convene a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.
7.51 Where the individual does not have capacity, or is not otherwise able, to challenge a decision, the advocate must challenge any decision where they believe the decision is inconsistent with the local authority’s duty to promote the individual’s wellbeing.
7.53 The local authority is expected to recognise that an advocate’s duty is to support and represent a person who has substantial difficulty in engaging with the local authority processes. The local authority must take into account any representations made by an advocate. The local authority must provide a written response to a report from an advocate which outlines concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The local authority should understand that the advocate’s role incorporates ‘challenge’ on behalf of the individual.