Health and Social Care (Community Health and Standards) Act 2003

Commentary on Sections

Part 2 –Standards

Chapter 9 - Complaints

Section 116: Further consideration of representations under the Children Act 1989

258.Section 116 inserts two new sections, 26ZA and 26ZB, into the Children Act 1989 which provide for the further consideration of complaints made under the Children Act complaints procedure that have not been resolved by the local authority concerned. Section 26ZA is concerned with complaints about local authorities in England; section 26ZB makes similar provisions for complaints about Welsh local authorities.

259.The Children Act complaints procedures is established under section 24D and section 26 of the Children Act. Section 24D requires local authorities to establish procedures for dealing with complaints about the services provided by them under the Children Act for young people who have been looked after by them as they move towards independent living; section 26 requires local authorities to establish procedures for complaints about the discharge of their functions under Part 3 of the Children Act which is about local authority support for children and families.

260.Under the current Children Act complaints procedure, if a complaint has not been resolved after consideration by the local authority and the independent person appointed to assist in the consideration of such complaints, the local authority must on the request of the complainant set up a panel that includes at least one independent person to consider the complaint. The intention is that the regulations made under section 26ZA, inserted by section 114, will replace the panel stage with a new procedure for further consideration, initially by the CSCI.

261.Section 26ZA(3) concerns payment. The intention is that any payments for the further consideration of complaints would be paid by the local authority to the CSCI. An independent panel may review the amount chargeable and substitute a lesser amount if it thinks fit.

262.By section 26ZA(4) the regulations may authorise the disclosure of information relevant to a complaint to a person or body who is considering the complaint or to a Local Commissioner, that is a Local Commissioner under Part 3 of the Local Government Act 1974 who is a member of the Commission for Local Administration in England, when a complaint is referred to him under the regulations. Such a disclosure may be authorised notwithstanding any rule of common law of confidentiality that would otherwise prohibit or restrict it. This provision will not override the specific obligations under the Data Protection Act 1998, namely, that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act. This is consistent with provisions made in section 113.

263.Section 116(2) inserts section 26ZB into the Children Act 1989. It broadly replicates for Wales the provision of section 26ZA except that it makes provision for unresolved complaints to be considered further by an independent panel.

264.Section 116(3) amends 26A of the Children Act which is concerned with advocacy services. The section imposes a duty on local authorities to provide assistance, including assistance by way of representation, for children and young persons making complaints under section 24D and section 26 of the Children Act. The new section 26A(2A) extends the duty to cover the provision of assistance where complaints are further considered under sections 26ZA and 26ZB.