Some upheld, recommendations

Summary

Ms C had been made bankrupt, and the Office of the Accountant in Bankruptcy (AiB) was handling matters relating to her bankruptcy. She complained that AiB unreasonably delayed in dealing with payment protection insurance compensation funds and failed to respond adequately to her request for information.

We told Ms C that we could not look at what AiB did with the funds, but that we could look at how they responded when she queried this. Our investigation found that it took AiB seven weeks to deal with this, although they had explained the delay to her. In the circumstances, while the length of time taken was not ideal, we did not uphold this complaint.

We did, however, uphold the complaint that they failed to respond adequately to her request for information. We found that although there was no evidence that AiB misinformed Ms C, there was nothing to show that they had actively kept her informed during their investigation about what was happening or when it was likely to be concluded. To do so would have been in keeping with good practice in dealing with correspondence and complaints.

Recommendations

We recommended that the Office of the Accountant in Bankruptcy:

• ensure that notes are made of phone conversations with enquirers and complainants; and
• ensure that enquirers and complainants are kept updated, in keeping with the AiB's complaints and contact policy, and that such updates are logged.

Summary

Mrs C complained about Forestry Commission Scotland (the commission) in relation to deer fencing in a rural area. A management plan had been developed for the area in relation to the introduction of native woodland, and, as part of this, under relevant forestry regulations Forestry Enterprise Scotland (an agency of the commission) were required to prepare an environmental statement as part of an Environmental Impact Assessment. The statement concluded that block fencing was the most appropriate for the area, as it would allow deer continued access to a lochside from the hillside as part of their natural seasonal movement. The Royal Society for the Protection of Birds and other bodies had, however, expressed concern about this fencing, feeling that this would increase the risk of black grouse (a UK protected species) hitting the fencing. The commission granted consent for the project under the regulations in 2008, with a condition attached in relation to the fencing, stating this would involve further assessment.

Mrs C later discovered that a ring fence was to be erected rather than the block fencing originally proposed. This would prevent deer access to the north of the lochside. Mrs C complained about this to the commission both at a local and national level, saying that the consent granted had been breached, and that concerns about deer welfare and the opinions of local residents and tourists had been disregarded. However, the commission said that this decision had been taken due to the concerns raised about black grouse, and that they did not consider the consent to have been breached. We did not uphold this complaint as we accepted the position of the commission. We noted that the information in the statement was not binding, the decisions made by the commission in relation to the consent were discretionary (ie they were decisions that they were entitled to make) and they were also given scope for review by the attached condition, although we did note that the changes were significant. We made recommendations in relation to the condition and registration process, so that in future the local community would be given the opportunity to be notified and further consulted where appropriate.

Mrs C also complained about communication failings. We upheld this, as we found that that the commission had failed to consult and communicate with the local community as had been informally agreed, but we also noted that the commission had since taken steps to address this. We did not uphold Mrs C's complaint that her complaints had not been dealt with impartially.

Recommendations

We recommended that the commission:

• review its procedures for the use of conditions related to consent under the Regulations, and establish a process and criteria for any submissions relative to conditions, assessment of these and decisions reached, to ensure clarity;
• develop an online database to ensure the application register and relevant documentation are accessible; and
• prepare a further written agreement clearly outlining advance notification periods they must adhere to in relation to advising the local community of continued implementation of the ongoing management plan for the area.

Summary

An advocacy worker (Ms C) complained on behalf of Mr and Mrs A about the special school attended by their son (Master A). Following an episode of challenging behaviour, the school requested that he be collected and taken home. She said that when he was picked up, he reported that he was sore, and was later found to have unexplained bruising to his body. Ms C made six complaints about this.

We upheld three of Ms C's complaints. Our investigation found no evidence that the school had unreasonably physically restrained Master A. Nor did we find evidence that the school had not provided one-to-one support, as we could find no consistent record of their having agreed to do so. We did, however, find significant shortcomings in the school's record-keeping in relation to the incident and also of meetings where Master A's needs were discussed. We did not uphold the complaint that his teacher did not have sufficient training or experience.

Recommendations

We recommended that the council:

• apologise for the failure to keep accurate and consistent records of meetings.

Summary

Mrs C was unhappy with the way in which the council dealt with her complaint. She said it was confusing; her complaint was not clarified; she was not offered a three stage process to which she said she was entitled; and her allegations about missing documentation were not acted upon.

In investigating her complaint, we carefully considered all of the information provided by Mrs C and by the council. A review of the documentation showed that although some of Mrs C's complaints were dealt with under the council's social work complaints procedure, it had been inappropriate to do so as she was not a user of social work services. After that, although she was correctly told that other complaints could not be dealt with under this procedure, she was not advised of the council's standard complaints procedure nor was she signposted to us in the event that she was unhappy with the outcome of her complaint. We noted that the reason that she expected to be able to use a three stage procedure was because some of her complaints had incorrectly been put through the (three stage) social work complaint procedure. Our investigation went on to find that the terms of Mrs C's complaint were confirmed with her; that the council were unable to disclose all the available information to her in accordance with the Data Protection Act and that the offer of a meeting that had been made still stood. Therefore, while we upheld Mrs C's complaint about lack of proper advice about the complaints procedure, we did not uphold her other complaints.

Recommendations

We recommended that the council:

• apologise to Ms C for failing to provide adequate information about the complaints procedure; and
• ensure that all staff who deal with the public are fully apprised of how their complaints procedures work in order that they can give appropriate advice.

Summary

Following the death of his elderly mother, Mr C was appointed executor of her estate. As beneficiary, Mr C subsequently inherited his mother's house, which he kept as a second home. During the executry period, the property had been exempt from council tax. Mr C made seven complaints against the council about delay in sending him correct council tax notices for the property for 2010/11 and 2011/12; failure to issue receipts for cheques he sent; failure to reply to correspondence, and delay in responding to his complaint and to deal with the issues he had raised.

Our investigation upheld four of Mr C's seven complaints. We considered that the need for the protracted correspondence could have been avoided if the council had acted promptly, when informed of the confirmation the estate, to find out who had become liable for council tax. They did not do this and in an invoice sent to Mr C (as executor) they wrongly extended exemption of council tax, although they later corrected this. The council was, in light of that correction, obliged to collect the correct amount of council tax owing. We upheld Mr C's complaints about the failure to issue receipts or reply to letters, and about delays in the complaints process.

Recommendations

We recommended that the council:

• review the adequacy of their current procedures in respect of communicating with executors, and consider providing a leaflet to explain exemptions, discounts and the information they will require after an executry is confirmed; and
• apologise to Mr C and waive their ability to pursue the sum outstanding for 2010/11.

Summary

Ms C's complaint was about proposals to site a doctors' surgery behind her home. Ms C had objected to the original proposals in 2004. The acknowledgment of her objection indicated that she would be told the outcome, but that did not happen. Consent for the initial application was issued in 2006, after the application was referred to Scottish Ministers. Ms C, unaware of this, obtained planning consent and a building warrant for a rear kitchen extension to her property which was completed in 2007. In late 2009 an amended application was submitted for the surgery proposals.

Ms C made three complaints. We upheld two - that the council failed to tell her that the initial planning permission had been granted, which our investigation found was clearly the case, and that they failed to respond appropriately to her complaints correspondence. On the latter we found that the timescales exceeded the council's published targets. We did not uphold her complaint that the council failed to ensure the site plans were updated to show her extension, as site plans were the responsibility of the developer. However, as we found that the council's geographical management system did not show Ms C's kitchen extension we made a recommendation about this.

Recommendations

We recommended that the council:

• examine why, given the completion in January 2008 of the approved building works to form a rear extension to Ms C's home, that extension is not shown on the council's geographical mapping system; and
• consider reviewing their current procedure of acknowledgement of receipt of representations on planning applications to direct relevant parties to information publically available on the council's planning portal.

Summary

Ms C had been unable to work due to health problems. She moved to the council's area when she found a new home which was let privately, and applied to the Department of Work and Pensions (DWP) for benefit and to the council for housing benefit. After Ms C moved there, she found five weeks' temporary work, and told the DWP. She understood (wrongly) from a conversation with a DWP officer that there would be a 'run on' period of benefits during a period of temporary employment. When she later started a second period of temporary work, the DWP and council began a benefits investigation which took some months to complete. Ms C meanwhile failed to make full payment of rent to her landlord, who served her with notice to quit. Ms C applied to the council for rehousing on the basis of threatened homelessness.

The benefit fraud investigation found that Ms C had misunderstood the processes involved and accepted that she had not intended to defraud. Her housing benefit was re-instated and the landlord was given a substantial direct payment of housing benefit because Ms C was more than eight weeks in arrears of rent. Ms C disputed that she had had a live claim for benefits while she was working, and considered the payment to her landlord had been inappropriate. Removing Ms C's live claim then created an overpayment of housing benefit, meaning that she was being held accountable for a large repayment, which she said would cause her financial difficulty. After Ms C met a senior member of staff, the benefit account was cleared of the outstanding balance, at a late stage of the council's consideration of her complaint.

Ms C made three complaints to us. Our investigation did not uphold her complaints that her concerns about a member of staff had not been investigated appropriately and that a member of housing benefits staff had inappropriately disclosed information to the homelessness team, as we did not find evidence to support this. Our investigation did, however, find that it took too long (nine months) to take Ms C's complaint through the four stages of the council's complaints procedure.

Recommendations

We recommended that the council:

• apologise to Ms C for the unnecessary stress that the process of completing their complaints procedures caused her.

Summary

Planning consent was granted for the erection of 30 new houses. The planning consent included a condition that required the developer to submit a scheme for the treatment of Japanese knotweed growing on the site before commencing work. Mr C complained that the council allowed work to start before this condition was fulfilled. He also complained about delays to responses from the council to his complaint correspondence.

We did not uphold the complaint about the work starting too early. Our investigation found that the condition was worded in such a way that it only required a scheme to be submitted to the council. There was no requirement for the scheme to be approved or implemented before work started. We considered, however, that it was implied that an approved scheme, including proposed timescales for the treatment of the knotweed, should have been in place before work started. We found that such a scheme was submitted in good time, and was approved by the council subject to certain additional precautions being taken by the developer. The council worked with the developer to ensure these precautionary measures were in place.

When responding to Mr C's concerns, the council noted that the work that he described as having started was site clearance work rather than development. We accepted that in planning terms there is a difference between the two, and that there was no opportunity for the council to take enforcement action against site clearance work, which does not require planning consent. We were satisfied that the council fulfilled their role in planning terms, as they highlighted to the developer that specific action was required to prevent the spread of knotweed and ensured that a scheme for this was in place. Any subsequent work by the developer that may have caused the spread of this controlled species would have been a criminal offence and not a matter for the council as planning authority.

Whilst we were satisfied that the council did not permit development on the site before the required scheme was in place, we found their record-keeping to be poor and their communication on the matter to be confusing. We upheld this complaint and were critical of their failure to keep an adequate audit trail of their tracking and approval of the condition. We were also critical of their handling of Mr C's complaints correspondence. Some of the council's responses were delayed beyond their 20 working day target response time and one email received no response at all.

Recommendations

We recommended that the council:

• review their processes for tracking and approving conditions; and
• apologise to Mr C for the poor handling of his complaint.

Summary

Ms C told us that when she complained about noise from her neighbour's house, the housing association did not deal with the problem. She also said that they did not deal with her complaint in accordance with their published complaints procedure.

Our investigation found that generally the association had acted appropriately and had taken steps to try to resolve the problem, including contacting the council's environmental health department and speaking to the neighbour concerned. We, therefore, did not uphold her complaint that the association did nothing about the noise, but we made a recommendation about one avenue that we considered should be tried again now that we have reviewed the complaint.

We did, however, find that the association had not initially registered her concerns as a complaint. Because of this, they failed to respond within their own stated time limits, and they did not provide Ms C with copies of her complaint files when she asked for them. We also found that, in his efforts to resolve the noise problem, the officer who was eventually asked to investigate both the noise issue and the complaints handling appeared to have overlooked the complaints handling issue altogether. We upheld this complaint and made recommendations to address the failings identified.

Recommendations

We recommended that the association:

• further explore with Ms C the possibility of introducing mediation between her and her neighbour;
• send Ms C a further written apology for failing to follow their complaints handling policy appropriately;
• take steps to ensure that in future they respond to requests for copies of personal information; and
• review their guidance for staff investigating complaints to ensure that each aspect of a complaint is considered and responded to at the appropriate time, and under the appropriate policy. In doing so they should take account of the guidance provided by SPSO’s Complaints Standards Authority.

Summary

Mrs C made a number of complaints about the board's care and treatment of her husband (Mr C). Mr C had been diagnosed with rectal cancer (cancer of the lower part of the large bowel) and liver metastasis (cancer that spreads to other parts of the body).

Mrs C said that her husband had cognitive defects (his understanding was limited) and the board did not take this into account when obtaining consent for surgical procedures carried out on him. She said that Mr C was not competent to give informed consent (consent for medical procedures to take place, with a proper understanding of what these involve) and that she stressed this to every health professional she came in contact with. Mrs C was both financial and welfare power of attorney for her husband (ie she could control decisions about most aspects of his life). However, when responding to her complaint, the board said that Mr C was not at any point considered to have been incapacitated to an extent where he could not sign his own consent forms.

We upheld Mrs C's complaints about Mr C's care and treatment and about the board's complaints handling, but not her other complaints. Our investigation found that, on balance, there was evidence in the case notes to show that Mr C had cognitive impairment that compromised his capacity to provide informed consent. The clinicians involved should have documented their own assessment of his capacity, but failed to do so. We, therefore, did not know what their views on this were, or how, if at all, they had assessed Mr C's capacity to consent to medical procedures. If they believed that Mr C lacked capacity, then the provisions of the Adults with Incapacity Act should have been used, which would have ensured Mrs C's involvement as power of attorney. Mrs C's involvement in major decisions relating to Mr C's care, including consent to undergo surgery, would also have been documented. On the other hand, had the clinicians believed that Mr C did have capacity for such decision making, they should have clearly documented this. In view of this, we found that the assessment and documentation of Mr C's cognitive function and capacity to consent was below a reasonable standard.

Mr C had had a ventriculoperitoneal shunt (a device to divert fluid from the brain) inserted several years before. A central line (a tube placed by needle into a large, central vein of the body to administer drugs or take blood samples) had been placed in the same area during his treatment for cancer. Staff noted inflammation around the site of the central line and it became apparent that Mr C's confusion had worsened. Mr C's condition deteriorated and the central line was removed. A scan was then carried out, which found that there was more fluid in Mr C's brain than had previously been seen. Mr C was transferred to a neurosurgical ward (ward for surgery of the brain or other nerve tissue), but his condition continued to deteriorate and the shunt was removed. Mr C's neurosurgeon considered that his neurological deterioration was a direct result of the infected central line, although the surgical staff involved in fitting the central line disputed this. We found that the surgical staff should have avoided putting the central line in the same area as the shunt. However, there was insufficient evidence for us to decide that this caused an infection and led to Mr C's neurological deterioration. We found that the other treatment provided to Mr C was appropriate and in line with the current guidelines for the management of rectal cancer. We also found that it was reasonable to undertake keyhole surgery and that Mr C's consultant was reasonably involved in his care and treatment.

Mrs C also complained that the board did not reasonably provide information about Mr C's condition. Although this was a balanced decision, we found that the information provided had been reasonable. However, we found that the board had not responded to Mrs C's complaints within a reasonable timescale.

Recommendations

We recommended that the board:

• issue a written apology to Mrs C; and
• consider how to raise awareness amongst medical and nursing staff of the need to: objectively assess cognitive function; assess and document capacity to consent; clearly document the existence of proxy decisionmakers such as a power of attorney; and, document the inclusion of the power of attorney in decision making processes more explicitly than occurred in this case.