Regulation 39 requires a children's home to have a procedure for considering complaints made by or on behalf of children, to keep a record of every complaint, the action taken and the outcome of any investigation, and to ensure no child suffers a reprisal for complaining.
Nobody who is the subject of a complaint may take part in considering or investigating it, other than at the informal resolution stage. And Ofsted can require, on request, a summary of every complaint in the preceding twelve months and the action taken on each.
Complaints are one of the clearest windows an inspector has into a home's culture. Not because complaints are bad, but because how a home handles them shows whether children are heard, whether managers investigate honestly, and whether anything changes as a result.
A home with no complaints at all is rarely a home where nothing goes wrong. It is more often a home where children have not been helped to complain.
What regulation 39 requires
The duty has five parts:
- 39(1) Establish a procedure for considering complaints made by or on behalf of children.
- 39(2) Ensure no person who is the subject of a complaint takes any part in its consideration or investigation, except at the informal resolution stage where the registered person considers it appropriate.
- 39(3) Ensure a record is made of any complaint, the action taken in response, and the outcome of any investigation.
- 39(4) Ensure no child is subject to any reprisal for making a complaint or representation.
- 39(5) Supply Ofsted, on request, with a statement summarising complaints made in the preceding twelve months and the action taken in response to each.
Regulation 39(6) disapplies the regulation, other than the reprisal duty in 39(4), to matters covered by the Children Act 1989 Representations Procedure (England) Regulations 2006, which is the local authority representations process for looked after children.
The conflict of interest rule
This is the rule small homes most often breach without noticing. Regulation 39(2) prohibits anyone who is the subject of a complaint from taking any part in its consideration or investigation. In a home with one manager, a complaint about that manager cannot be investigated by them, informally or otherwise, beyond the narrow informal resolution exception. Homes need a named alternative, usually the responsible individual or another manager in the group, identified in the procedure before it is needed rather than improvised on the day.
The informal resolution exception is genuinely useful and worth using well. A child unhappy about a bedtime and a staff member who can resolve it in a conversation should not be forced through a formal process. But the exception is conditional on the registered person considering it appropriate, which is a decision that should be recorded, not assumed.
The three part record
Regulation 39(3) requires a record of three things: the complaint, the action taken in response, and the outcome of any investigation. All three are required.
The most common shortfall is a complaints log that captures the first element well and the third barely at all. Complaints are dated, described and assigned, and then the trail stops. From the outside that is indistinguishable from a home that logs complaints and ignores them. Whatever your view of the underlying practice, the record does not evidence a resolution.
It is worth deciding, and writing down, what counts as a complaint in your home. Regulation 39 covers complaints made by or on behalf of children, which includes complaints raised by parents, advocates and social workers. Homes that record only formal written complaints tend to under-record substantially, because most complaints from children arrive verbally and in passing.
The reprisal duty
Regulation 39(4) is short and absolute: the registered person must ensure no child is subject to any reprisal for making a complaint or representation. It is also the one part of regulation 39 that continues to apply even where the 2006 Representations Regulations take over.
Reprisal is rarely deliberate in the homes we hear about. It is more often subtle: a child who complains about a staff member finds that staff member cooler with them afterwards, or is told the complaint has made things difficult. Supervision records are the natural place to evidence that this has been considered and addressed, particularly where a complaint concerned a named member of staff who continues to work with the child.
The 12 month summary
Regulation 39(5) allows Ofsted to require, at any time, a statement summarising every complaint in the preceding twelve months together with the action taken on each. There is no notice period built into the regulation.
That is a straightforward operational test. If your complaints sit across a paper file, an email folder and a manager's notebook, producing that statement means reconstructing a year of records under time pressure, usually during an inspection when attention is needed elsewhere. If they sit in one place with outcomes attached, it is a report.
Making the procedure genuinely accessible
Regulation 7, the children's views, wishes and feelings standard, does most of the work here. It requires the registered person to ensure that each child has access to the home's complaints procedure when their placement is agreed and throughout their stay, and that an explanation is given to each child as soon as reasonably practicable after arrival about how to make a complaint and how it will be dealt with.
The consultation duty almost nobody records. Regulation 7(2)(c) requires the registered person to keep the children's guide and the complaints procedure under review and to seek children's comments before revising either document. Revising your complaints procedure without asking the children who use it is a breach of that duty, and evidence that you did ask is unusual enough that it stands out positively.
Complaints as evidence of learning
Regulation 13(2)(g)(ii) requires the registered person to demonstrate that practice in the home is informed and improved by taking into account and acting on feedback about children's experiences, including complaints received. That is an explicit link between your complaints record and the leadership and management standard.
In practical terms it means a complaints log is not only a record of individual matters. Reviewed as a set, it should tell you something: recurring themes, a particular shift, a particular staff member, a particular rule that generates friction. Ten minutes of thematic review, recorded, changes how the same log reads.
How OVcare supports complaints handling
OVcare is a care management platform built for UK children's homes, supported accommodation providers and family assessment centres. Complaints are recorded with the action taken and the outcome against the same entry, so the three elements regulation 39(3) requires stay together rather than drifting apart.
Because complaints sit alongside incidents, key-work and daily records, themes are visible across a period rather than only within a single case, and a twelve month summary can be produced when Ofsted asks rather than assembled by hand. OVcare does not investigate complaints or replace professional judgement, and no software can determine an inspection outcome. What it can do is reduce administrative burden and support clearer evidence of what was done and what changed.
See how a year of complaints would look in one view. Book a free demo and we will walk through complaints recording, outcomes and thematic reporting for your setting. Book a free demo.
Related reading
- What Must You Notify Ofsted About? Regulations 40, 41 and 42
- The Statement of Purpose: Regulation 16 and Schedule 1
- Understanding Regulation 45 Reports
About the author. Paula Martinez has spent several years writing about and researching social care in England. She writes OVcare's regulation and compliance guides, working from the current text of the Regulations and Ofsted's published guidance rather than from secondary summaries.
Sources: The Children's Homes (England) Regulations 2015 (SI 2015/541), regulations 7, 13, 38 and 39, at legislation.gov.uk. The Children Act 1989 Representations Procedure (England) Regulations 2006.
This guide is provided for general information for care providers and does not constitute legal or regulatory advice. It covers Ofsted-registered children's homes in England; different requirements apply to supported accommodation under the Supported Accommodation (England) Regulations 2023, and to Wales, Scotland and Northern Ireland. Always refer to the current Regulations and take professional advice on your own circumstances.
