Local authorities are required to establish procedures for dealing with complaints about social services functions, including representations relating to certain children. These requirements are set out in regulations made under the Adoption and Children Act 2002, Part 3 of the Children Act 1989 and Part 2 of the Health and Social Care (Community Health and Standards) Act 2003, which are now treated as being made under the equivalent provisions in Part 10, Chapter 1 of the Social Services and Well-being (Wales) Act 2014. These are: the Representations Procedure (Wales) Regulations 2014 (S.I. 2014/1795) for children, and the Social Services Complaints Procedure (Wales) Regulations 2014 (S.I. 2014/1794) for adults.
The office of the Children’s Commissioner for Wales was established by the Care Standards Act 2000 (see Part V) and its principal aim is to safeguard and promote the rights and welfare of children in Wales. Further provision was made in the Children’s Commissioner for Wales Act 2001.
The office of the Commissioner for Older People in Wales was established in 2006 by the Commissioner for Older People (Wales) Act 2006 and its general functions are to promote and safeguard the interests of older people in Wales and encourage best practice in the treatment of older people in Wales.
Both Commissioners have powers to make representations to the Welsh Ministers, the First Minister for Wales or the Counsel General about any matter relating to the interests of older people in Wales, or any matter affecting the rights and welfare of children in Wales.
In addition, the Children’s Commissioner and the Commissioner for Older People both have powers to review the way in which the interests of older people/children are safeguarded and promoted when public bodies discharge their functions. Following a review, both Commissioners have discretion to decide whether or not to publish a report setting out their findings and recommendations. Where such a report is issued, they may request that the recommendations are responded to and failure to do so may be referred to the High Court.
Under the Children’s Commissioner for Wales Regulations 2001 (2001/2787) and the Commissioner for Older People in Wales Regulations 2007 (2007/398), both Commissioners have powers to examine the cases of particular children/older people in Wales, where the cases relate to issues concerning the provision of services or the effect on the said children/older people of the exercise of functions of a public body.
The Commissioners will only examine the case of a particular child/older person where a representation, made by the person concerned or on his/her behalf, raises a question of principle which has a more general application or relevance either to the rights or welfare of relevant children or, to the interests of older people in Wales, than in the particular case concerned.
In conducting an examination, the Commissioners may require certain persons to provide information or, if it is considered necessary, to attend in person to provide information, explanation or assistance.
Where a Commissioner decides not to conduct an examination, he/she must prepare a statement of reasons for that decision and send copies of it to the person who made the presentation in relation to the case and such other persons as the Commissioner considers appropriate.
If any person or body refuses to comply with an examination, to supply information in connection with an examination, or explain how they will comply with the recommendations, the Children’s Commissioner or the Commissioner for Older People, as the case may be, may issue a certificate to the High Court for it to look at the matter and this may result in a person or body being treated as if in contempt of court.
Following the conclusion of an examination, the Commissioner must make a report setting out his/her findings and conclusions, as well as any recommendations made. This report must be published and made available for inspection.
The person in respect of whom the recommendation is made must, within 3 months, provide information to the Commissioner in relation to the action taken or proposed to be taken to comply with the recommendation or, the reason for no action being taken.
Failure to respond within the time specified may be published in such manner as the Commissioner considers appropriate.