In this blog post, Margaret Doyle explores how adopting mediation in complaints about social care can contribute to the much-needed reimagining of an area of life in which human rights are engaged and which is crucial to human flourishing.
The role of mediation in complaints about adult social care
‘The English system of social care—the poor relation to the NHS since 1948—is underfunded, unreformed and palpably inadequate at meeting the needs of an ageing population. This problem has worsened over a generation and has been dodged by both main parties, though the position has become particularly acute as a result of austerity.’
‘Beveridge at Eighty: Learning the Right Lessons’, Gavin Kelly and Nick Pearce
The Political Quarterly, 3 January 2023[1]
There has been a flurry of recent reports on social care reform in England in the face of continued inaction by the UK Government. Among these are ‘Care and Support Reimagined: A National Care Covenant for England’ (Reimagining Care, Archbishops of Canterbury and York, 2022), which sets out a radical vision for reframing what social care is about and which states that ‘tinkering around the edges is no longer an option….in order to reimagine care and support, we must uphold values that recognise the dignity, value and gift of every human being. This requires us to take actions towards rethinking attitudes to care and support, rebalancing roles and responsibilities, and radically redesigning the system.’[2]
There is, in this report and other initiatives, an urgent and consistent call for a reframing and creative reimagining of social care, to move away from a narrative of crisis and decline (as depicted in the quote above) to one of opportunity – to a celebration of community, interdependence, and flourishing. The narrative change has been led by movements like the grassroots Social Care Future, which invites us to work together to harness the potential that social care offers us as a society. Its vision for social care is set out as a shared ambition: ‘We all want to live in the place we call home with the people and things we love, in communities where we look out for one another, doing things that matter to us.’
Complaints about adult social care
One of the issues addressed in several of the recent reports is how complaints about social care are dealt with. The Equality and Human Rights Commission (EHRC) launched an inquiry in 2021 into how older and disabled adults and unpaid carers can challenge local council decisions about social care and support in England and Wales. In February 2023 the EHRC published its report of the evidence, with far-reaching recommendations. The headline finding is that local authority processes are confusing and slow, and those drawing on social care support, and their friends and families, find making complaints difficult and stressful, often at a time when they are in crisis. People are often not given information on how to complain or signposted to independent advice and support. The result can be fear of ramifications, including fear of loss of support. As Helen Wildbore, Director of The Relatives & Residents Association, highlights in her foreword to a new report from King’s College London on evictions from care homes, people contacting their helpline speak of being ‘afraid to raise issues about their care, to speak out about concerns or use their legal rights for fear of reprisals, including eviction’.[3]
Among the EHRC’s recommendations are to enhance the powers of the Local Government and Social Care Ombudsman (LGSCO) so that it can initiate investigations into areas of concern without the need for individual complaints. The LGSCO upholds two-thirds of complaints it receives about adult social care. Giving the LGSCO what is known as ‘own initiative’ or ‘public interest’ powers to investigate proactively, without relying on a complaint being made, would be an important step in ensuring that raising awareness of concerns is not a responsibility placed only on individuals who access social care support. It also means that human rights aspects of these complaints will be identified and addressed.
The LGSCO has made it clear that it does not expect individuals to frame their complaints in the language of human rights. Instead, local authority staff should be able to identify when a complaint is connected to a rights-based issue and respond appropriately. The LGSCO is well placed to remind local authorities of their obligation to identify when human rights are engaged. In a 2022 Focus Report on looking at complaints through a rights-based lens, the LGSCO recommended positive steps that councils and independent care providers should consider taking to improve services, including to ’proactively think about people’s rights when looking at complaints and concerns, irrespective of whether they are explicitly mentioned’. [4]
What do complaints about social care involve? The answer is vast. Adults drawing on support include working age disabled people, retired people, people who live in their own homes and people who live in residential care or nursing homes. Carers and relatives also raise complaints, on their own behalf in relation to how they are treated or on behalf of a loved one. Complaints might be about a number of issues, such as:
- being refused an assessment of needs, the way the assessment was carried out, or delays in that assessment being carried out
- inaccuracies or omissions in the assessment
- the way care is provided, whether in a nursing or care home or at home
- the way family members are treated by care providers
- not being given information or kept informed
- personal budgets
- disagreement with financial assessments
- poor communication
- inadequate services and support
- the way a review of needs is carried out
Complaints might also involve elements of human rights and discrimination, such as decisions influenced by underlying or institutional racism, presumptions about ageing, or cultural differences. In its 2019 focus report on independent care providers, the LGSCO identified fees, billing and invoicing, protecting belongings, giving notice, and care planning as key areas for improvement. It has also highlighted complaints in which human rights are engaged, such as complaints involving the right to a private family life, particularly in relation to how adult residential care services are arranged and a lack of a proper care assessment, which meant the complainant’s dignity and autonomy had been neglected.
Another issue can arise from complaints being raised. Recently published research on evictions from care homes highlights the prevalence of residents being served notices to quit and notes that such notices sometimes ‘follow strained relationships between care homes and residents’ families following relatives’ complaints or concerns over quality of care’.[5] In the year 2021-22, 5,871 care home residents in England were served a ‘notice to quit’, often causing anxiety and distress to the resident and their family.
The report, ‘ ‘Angry, relieved, forever traumatised’: A report into the experiences of families of care home residents who were served a ‘notice to quit’ ’, mentions the potential of mediation to reduce the threat of evictions but notes that ‘no service currently acts as an independent mediator to help care providers and families in care homes to settle disagreements that lead to or involve notices to quit without the need to involve the justice system or the Local Government Ombudsman unless the care home or the family engages mediators’ (p.6). The research findings suggests that the role of mediation in this area should be investigated.
What role for mediation?
Mediation potentially has a key role to play in social care complaints. It is a process involving an independent and impartial third party who can ensure that complaints and concerns are discussed in a safe environment, allowing for participation of all interested parties. The aim is to find a mutually acceptable solution, but this does not mean compromising on rights or duties. In fact, mediation has a distinctive ability to humanise rights and bring them home, making them real in an everyday sense.[6] As with the ombud, mediators have no power to determine if a breach of human rights has occurred. They can, however, ensure that the principles of human rights underpin both the way support is provided and the way complaints are considered.
Mediation has been called a paradigm shift in the way it challenges adversarial notions of achieving justice and enforcing rights. In the context of complaints that engage human rights or issues of discrimination, initial responses might be defensive or protective of staff, and this can lead to anxiety in raising such complaints. Because mediation emphasises future solutions and is not about allocating blame, it can alleviate this defensiveness and the trepidation it causes. It may also offer therapeutic benefits to participants, something that is the subject of a current research project on medical treatment disputes.[7]
The key skill mediators use is listening. In her book Listen, palliative care doctor Kathryn Mannix discusses how to have difficult discussions about health and care – what she calls ‘tender conversations’. One of the scenarios she recounts from real-life stories is a meeting between health care providers and family members who have made a complaint about the treatment of their husband/father, who died in hospital. What comes across is that listening skills and a generous amount of time are the key ingredients to making these difficult discussions constructive and meaningful.
In 2021 the Competition & Market Authority, which oversees unfair practice in competitive markets, including UK care home providers, issued advice for care home providers on complying with consumer law.[8] This advice includes a recommendation to consider independent mediation where complaints are difficult to resolve, ‘such as where the matter is particularly acrimonious and those involved have become entrenched in their positions’. [para 6.7]
The advice suggests that mediation can help get to the real issues and underlying concerns driving the complaint. It also makes it clear that engaging in mediation is voluntary, and there should be no requirement to engage in it before taking a complaint to the LGSCO or other ombud. The option to go to the LGSCO should always remain. In many circumstances mediation can be an effective complement, not alternative, to other forms of dispute resolution because its distinctive approach brings a new dynamic to the situation and it never closes the door on taking further steps if needed to resolve a complaint.
Despite this, there is little evidence of the use of mediation for resolving social care complaints. Neither the Care Quality Commission nor the LGSCO mention mediation as a resource within their guidance on complaint handling in social care. As a result, little is known about what value mediation might bring to resolving these complaints.
How best to raise awareness of mediation’s potential value in social care complaints? One option is to pilot the use of mediation in complaints made to the LGSCO. Many ombuds have experimented with using mediation to resolve complaints made to them; the Parliamentary and Health Service Ombudsman has developed a mediation scheme primarily for complaints about the NHS, and for several years the LGSCO offered mediation for complaints about schools when these were within its remit. The important principle in this is that complaints remain under the jurisdiction of the ombud, and if they are not resolved through mediation they stay under the ombud’s umbrella and can be investigated. Any agreement reached in mediation is overseen by the ombud to ensure it complies with the obligations of providers and the rights of social care users, including human rights.
Another mediation model is that used for resolving disputes over the special educational needs of children and young people (in England). Local authorities are required to fund independent mediation for disputes that can be appealed to the tribunal. Using mediation remains voluntary for families, and it is free to them, with free access to independent advice, support and advocacy through a specialist service called SENDIASS. In these disputes, mediation offers a way to have a supported face-to-face discussion about the concerns, with the legal framework as a foundation, and an opportunity to resolve matters in a creative and holistic way.
My interest is in mediation involving older people, particularly in relation to health and social care, an area in which ageism can lie just beneath the service of concerns and complaints. Mediation offers a space for raising questions, for challenging, for educating and bringing about change that is dynamic, responsive, and intensely personal. Among the issues of ageism that I’ve been involved in mediating are those related to housing, to consumer services, and to work. Behind each of these are underlying presumptions and misperceptions about older people that have affected decision-making and behaviours, limited access, and constrained older people’s voices. Mediation counters those presumptions and makes voice and participation fundamental to the process.
Conclusion
The underlying principle of participation and supported decision-making is key to mediation. It is also key to the theory, if not always the practice, of social care. Many of the techniques used in mediation are those of the Strengths-Based Approach used in social care, which is about exploring in a collaborative way the entire individual’s abilities and their circumstances rather than making the deficit the focus of the intervention. It is about gathering a holistic picture of the individual’s life, including from their network and other professionals.
In the context of complaints about social care, mediation fits in well with the reimagining narrative about social care – it promotes flourishing and participation and joint working. It does so in public law contexts such as education, health and social care by operating within a framework of legal rights and responsibilities. It is not, in these contexts, a bargaining tool. Unlike many conceptions of mediation in the commercial world, mediation in social care does not require compromise, and certainly not compromising rights.
[1] Available at https://onlinelibrary.wiley.com/doi/full/10.1111/1467-923X.13227?mc_cid=5599aff07a&mc_eid=7a7c9afd23
[2] ‘Care and Support Reimagined: A National Care Covenant for England’, Reimagining Care, Archbishops of Canterbury and York, 2022; available at https://www.archbishopofcanterbury.org/news/news-and-statements/care-and-support-reimagined-national-care-covenant-england-0
[3] Foreword to Emmer De Albuquerque Green, C., & Manthorpe, J. (2023). ‘Angry, relieved, forever raumatized’: A report into the experiences of families of care home residents who were served a ‘notice to quit’. NIHR Policy Research Unit in Health and Social Care Workforce, The Policy Institute, King’s College London. https://doi.org/10.18742/pub01-113.
[4] LGSCO, ‘Equal justice: learning lessons from complaints about people’s human rights’, available at https://www.lgo.org.uk/equal-justice-learning-lessons-from-complaints-about-people-s-human-rights#
[5] Emmer De Albuquerque Green, C., & Manthorpe, J. (2023). ‘Angry, relieved, forever raumatized’: A report into the experiences of families of care home residents who were served a ‘notice to quit’. NIHR Policy Research Unit in Health and Social Care Workforce, The Policy Institute, King’s College London. https://doi.org/10.18742/pub01-113, p.4.
[6] For more about mediating in a rights-based legal context, see M Doyle, ‘Enforcing Rights Through Mediation’, Legal Bulletin, Disability Rights Commission (2007), available at https://domarmediation.files.wordpress.com/2012/03/enforcing-rights-m-doyle0011.pdf
[7] Mediation of Medical Treatment Disputes: A therapeutic justice model; see https://www.essex.ac.uk/research-projects/mediation-of-medical-treatment-disputes-a-therapeutic-justice-model
[8] ‘UK care home providers for older people: Helping care homes comply with their consumer law obligations’ (CMA96, Dec 2021); available at
Human Rights and Social Care Forum 
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