Some upheld, recommendations

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.

Summary

Mr A's late wife (Mrs A) was in hospital, and had developed symptoms that suggested she might be infected with legionella (the bacterium that causes legionnaire's disease). Blood tests were taken, but Mrs A died the next day, before the results were known. The hospital issued a death certificate and Mr A organised his wife's funeral. However, when the undertaker tried to collect Mrs A's body the day before the funeral, the hospital would not release it. This was because the legionella tests had come back positive and the procurator fiscal had been informed. Mr A was left not knowing when he would be able to hold his wife's funeral, and said that he did not receive a clear explanation of the reasons for the delay or what would happen if the tests were positive. Because of the delay, the family had to cancel the funeral which both caused extreme distress and inconvenienced them, as family members were travelling from other parts of the UK.

The further tests, however, showed that the first result had been a 'false positive' and Mrs A did not have a legionella infection. An advocacy worker (Ms C) complained to us on Mr A's behalf about the board's administration and communication. She said that the board had issued the death certificate prematurely and delayed in deciding not to release Mrs A's body. She also said that their communication was unreasonable in that they delayed in telling the appropriate people that Mrs A's body was not to be released, provided an inadequate reason for not releasing Mrs A's body, and failed to provide reasonable information about what would happen if the test results were positive or about when Mrs A's body would be released.

We did not uphold the complaint that the board's administration of matters was unreasonable, as we found no evidence of delay in deciding to release Mrs A's body. Our investigation found that the decisions about this were taken as quickly as they could have been. We also found that it was reasonable for them to issue a death certificate, as the main causes of death were appropriately recorded.

However, we did uphold the complaint that the board's communication was unreasonable. Although a doctor had contacted Mr A at the right time to explain why Mrs A's body could not be released, we found no evidence that the doctor explained to him the implications of a positive test result. Although we acknowledged that normally the chance of a positive test was small, we found that Mr A and his family should have been told of the possible implications in order that they could make informed choices about important matters such as funeral arrangements.

Recommendations

We recommended that the board:

• take steps to ensure that, where similar circumstances arise, medical staff make relatives aware of the potential impact of a positive test result.

Summary

Mr C complained that his medical practice failed to provide appropriate care and treatment when he had an eye infection and unreasonably refused to allow him to see a GP.

Mr C developed an eye infection, and called his practice on a Friday to request an appointment. He was told that there were no appointments available and that he should call again on Monday. By Monday his eyes had not improved, and he contacted NHS 24 (a national phone helpline service for advice on health matters). They advised him to see his GP. His workplace occupational health team also advised him not to work, and to see his GP. When Mr C contacted the practice again, he was told that when he first called he should have been referred to the LENS service (a service set up by the regional NHS board, providing direct access to treatment for minor eye conditions). The receptionist he spoke to on this occasion apologised that he was not told this when he first called, and advised him to contact a local optician, a participant in the LENS scheme.

Mr C was treated with various eye drops but his condition was slow to resolve. He contacted the practice several times over the next two weeks asking to see a GP. Although he twice saw a nurse from the practice, he was never able to see a GP. As he was unable to see a GP, Mr C continued with the treatment provided by the LENS service and was discharged the next month with the infection resolved.

Our investigation, which included taking independent advice from a medical adviser, concluded that it was reasonable that Mr C should have been referred to and treated by the LENS service. We, therefore, did not uphold the complaint about his initial treatment. The adviser said that the care and treatment provided by the service was reasonable and appropriate, and would not have been different from the treatment provided by a GP. However, we did find that when his condition was slow to resolve, it was unreasonable that Mr C was not given the opportunity to discuss his condition with a GP and be reassured that the treatment being provided by the LENS service was appropriate. Because of this, we upheld his complaint that he was refused access to a GP during that time.

Recommendations

We recommended that the practice:

• apologise for the failings identified; and
• review their policy and procedures for the allocation of GP appointments where patients have been referred to another service, and ensure that staff are considerate of the possible need for the reassurance provided by discussion with a GP when a condition is not resolving within a reasonable time.

Summary

Miss C said that she experienced pain and difficulty eating after having her tooth filled. She was unhappy that, when she twice called the dental practice about the pain she was suffering, reception staff advised her to call the emergency dentist.

We did not uphold Miss C's complaint about her dental treatment. We could not find enough evidence to support what Miss C said about the phone calls she said she made to the dental practice after the treatment, or what was discussed with the reception staff. We noted that when Miss C visited a different dentist a few months later, the filling was removed and a small exposure of the pulp tissue was found (the pulp is the central soft core of the tooth, sometimes referred to as the nerve). Our dental adviser said that exposure of the pulp is relatively common when providing a deep filling and can often go undetected as it can be fractions of a millimetre in size. In Miss C's case, our adviser said that it was possible that a small exposure occurred following the tooth being filled but did not consider that the the treatment was inappropriate.

We did, however, uphold Miss C's complaint about complaints handling, as we found that the board had not provided a full and comprehensive response to her complaint. We noted that the board's feedback services are currently under review.

Recommendations

We recommended that the board:

• apologise to Ms C for not responding fully to her complaint; and
• update the Ombudsman when the Feedback Service review is completed.

Summary

Mr C complained on behalf of his son (Mr A) who has Asperger's (a form of autism, in which people may find difficulty in social relationships and in communicating), that university staff had not been made sufficiently aware of his needs as a disabled student. Mr C told us that his son's disability was 'hidden', in that his condition was not obvious to those who met him. We agreed that there were some shortcomings in relation to Mr A's individual learning plan (ILP) which was not regularly updated or reviewed according to the university's policy.

We did not find evidence to support Mr C's complaints that requests for additional clinical support and for a change of supervisor had been unreasonably refused. However, Mr C also complained that his son was invited to a meeting without making its purpose clear in advance, and without inviting him to bring along a supporter or advocate. We agreed that Mr A should have been invited to bring somebody with him, particularly as his ILP identified that in difficult situations he was prone to anxiety which could overwhelm him. We also found the outcomes of meetings between the university and Mr A were not adequately recorded. This was particularly important as he had an identified need to record and confirm verbal discussions.

Recommendations

We recommended that the university:

• arrange for a programme of staff training to raise awareness of hidden disabilities and their impacts;
• review the procedures related to the review and updating of individual learning plans (ILPs);
• make greater use of notes to record discussions, issues, changes, decisions and update ILPs, and copy for any student with any additional support needs;
• ensure that staff pay greater attention to the detail of the ILP when dealing with students with additional support needs; and
• use email to confirm arrangements for students with additional support needs arising from hidden disabilities.

Summary

Mr C complained that Business Stream failed to read his meter between April 2011 and January 2012. He said that, had they done so, it would have been evident that a large amount of water was passing through the meter, indicating a leak. A leak was eventually identified, but not before Mr C received a sizeable water bill. Business Stream advised Mr C that he should read the meter himself to ensure that his readings were accurate. However, he did not feel comfortable doing so, as the meter was located next to a busy road.

We upheld the complaints about failure to read the meter, and about complaints handling. Our investigation found that Business Stream should have carried out two actual meter readings during the period in question. One of the readings for Mr C's meter was estimated, so we concluded that it might have been possible for the leak to have been identified earlier. That said, it was also possible that the leak occurred after the time the meter should have been read. We found that Mr C's meter was relocated next to the road after meter readers complained that it was contaminated in its former location (a yard inhabited by cows). We were, however, satisfied that, after Mr C raised safety concerns, Business Stream moved it to a safer location. We were critical of Business Stream for failing to provide a detailed response to Mr C's formal complaint.

Recommendations

We recommended that Business Stream Ltd:

• offer Mr C a credit to his account reflecting the potential impact of the failure to read his meter on his January 2012 water bill.

Summary

Mr C complained about the way in which the Student Awards Agency for Scotland (SAAS) handled his appeal against their decision to not accept a late application from his son for tuition fee support for his university course for 2011/2012. Mr C made four separate complaints about the SAAS handling of the matter.

The evidence we obtained during our investigation showed that the SAAS should have fully compared Mr C's initial letter of appeal and follow-up letter and had they done so, it would have become apparent that he was requesting a further appeal to the chief executive. Although there was evidence that the SAAS failed to recognise Mr C's further appeal, there was no evidence to support his view that the SAAS chief executive personally failed to follow the correct process, and we did not uphold this complaint.

We upheld his second complaint. The evidence showed that the SAAS acknowledged that they failed to deal with Mr C's stage three appeal letter correctly. It was clear that the same person dealt with Mr C's stage two and three appeals, contrary to the requirement of the procedure. On the third complaint, the evidence showed that in response to Mr C's stage three appeal letter the SAAS's compliance manager wrote a covering letter and sent this to Mr C along with a copy of his stage two response. There was no evidence that the compliance manager considered the additional information Mr C supplied in his stage three appeal letter and for this reason, we upheld this complaint.

We also upheld Mr C's fourth complaint. In response to our enquiry, the SAAS told us that they relied on the integrity of information provided by institutions, such as the university, when considering appeals. This appeared to include reliance on statements about actions that institutions said they had taken. In Mr C's case, the evidence obtained showed that the SAAS made statements in their stage two and three responses for which they did not have supporting documentary evidence. As well as requesting such statements, therefore, we considered it would be reasonable for the SAAS to require institutions to provide documentary evidence of the actions they claim to have taken, particularly where a complainant says that the actions did not take place and provides documentary evidence to suggest that this may be the case.

Recommendations

We recommended that SAAS:

• provide Mr C with a written apology for failing to escalate his stage two appeal to the chief executive;
• provide SPSO with documentary evidence that the SAAS raised the failing with the staff involved;
• provide Mr C with a written apology for failing to request full documentary evidence of the university's actions when dealing with Mr C's stage one and stage three responses which were not supported by appropriate evidence;
• take steps to obtain copies of the reminder emails sent by the university and then review their decision on Mr C's son's case, ensuring that the decision they reach is supported by appropriate documentary evidence; and
• put procedures in place to ensure that in future, staff obtain appropriate evidence when considering student appeals.