Some upheld, recommendations

Summary

Mrs C complained that the medical practice did not provide reasonable care and treatment to her husband (Mr C). Mr C had gone to the practice complaining of back and neck pains; pins and needles in his fingers, and difficulty walking and working. After several appointments, he saw Doctor 1, who recorded that he told Mr C that the problem was probably related to his spine and nerve entrapment. Doctor 1 also recorded that he had referred Mr C to physiotherapy and neurology (which deals with problems of the nervous system). He later completed a referral to physiotherapy, but there is no evidence that he completed a referral to neurology at that time.

Mr C saw another GP, Doctor 2, several days later. Doctor 2 recorded that Mr C had worsening pain in his arms, spine and back and some muscle spasms in the lumbar region. He also recorded that Mr C had weakness and numbness in his hands and was awaiting a neurology appointment. Mr C then saw Doctor 1 again. This was nearly three weeks after Doctor 1 had agreed to refer him to physiotherapy and neurology. Doctor 1 recorded that the pain was increasing despite analgesia (pain relief). He also completed a letter for urgent referral to neurology, as there was no sign of a referral being completed after the earlier visit. Mr C went to the accident and emergency department of a hospital (A&E) two days later. He was transferred to another hospital and an MRI scan (a diagnostic procedure used to provide three-dimensional images of internal body structures) led to a diagnosis of a serious back condition. Mr and Mrs C considered that this condition could have been prevented had the practice acted sooner.

After taking independent advice from one of our medical advisers, we found that the practice's general care and treatment of Mr C was reasonable, apart from the delay in sending the neurology referral letter. That said, Doctor 1 referred him to neurology urgently when it became clear that the initial (non-urgent) referral had not been done. In addition, he was transferred to another hospital for urgent treatment after attending A&E. In view of this, it is unlikely that the failure to complete the initial neurology referral had any significant impact on Mr C’s subsequent care and treatment.

Mrs C also complained that the practice’s response to Mr C’s complaint unreasonably contained inaccuracies. However, we found that the comments in the practice’s response were confirmed by Mr C’s medical records.

Recommendations

We recommended that the practice:

• issue a written apology to Mr C for the failure to send the referral letter.

Summary

Mr C's garden was contaminated when a blocked sewer overflowed. In the process of clearing up other gardens, further contamination was washed into Mr C's garden. Mr C said he was not properly notified of the contamination or the risk to his health. He complained that the clean-up of his own garden, which involved an operative spraying disinfectant for less than five minutes, was completely inadequate. He said that, in contrast, other properties got new topsoil, turf and stone chippings. Lastly, Mr C was unhappy that an operative suggested that he dig raw sewage into the soil.

We upheld three of Mr C's five complaints. Scottish Water accepted that some contamination was washed into Mr C's garden during the clean-up operation. We concluded that this run-off had, inappropriately, gone unnoticed. We found evidence that Mr C had not been properly issued with written information and guidance about contamination early enough. We also found that the option of a further clean-up was not discussed with or offered to Mr C, as it should have been.

We did not uphold Mr C's complaint of unfair treatment, in that his garden was not re-turfed etc. We took the view it was appropriate for Scottish Water to act proportionately, and to allocate more resources to those who were worst affected. It was not possible for us to establish what Mr C had been told by the operative and, as there was no supportable evidence, we did not uphold the complaint that Mr C had been told to dig sewage into the soil.

Recommendations

We recommended that Scottish Water:

• apologise to Mr C for those aspects of his complaint that we upheld.

Summary

Mr C, who is a prisoner, complained that when he reported that he was unable to attend his prison's learning centre due to illness, the actions of a residential prison officer were unreasonable. We did not uphold this complaint. As there were no truly independent witnesses to what was said between Mr C and the residential officer, the conversation could not be proven either way. That is not to say, however, that we believed either party's version of events over the other. We noted, however, that Mr C did not have authorisation from prison health centre staff to be absent that day. It was, therefore, reasonable for an officer to have counselled Mr C about the consequences of not attending the learning centre without authorisation.

Mr C also complained that the prison governor unreasonably delayed in responding to his confidential complaint. We upheld this complaint. We accepted that in this specific case there were mitigating circumstances, which meant that it took the governor longer than the statutory seven days to respond. However, the governor did not inform Mr C of all the reasons for the delay and advise him of the timescale within which a decision would be given.

Recommendations

We recommended that Scottish Prison Service:

• ensure that Governors, or staff responding on their behalf, adhere to Rule 124(5) of the 2011 Prison Rules, and retain evidence that they have done so.

Summary

Ms C complained that Business Stream delayed in issuing her bill after Scottish Water told them that her business premises were receiving water and waste water services, for which she had not been charged. When Scottish Water identify a property like this, they notify a licensed provider such as Business Stream, who then start billing from the date they were notified. In Ms C's case, however, Business Stream took seven months to issue a bill. The bill was based on the rateable value of the property, as Ms C did not have a water meter installed at that time. During our investigation of the complaint, Business Stream told us that when they receive details of properties that are not being charged for water, they need to open a property account, discover if there is someone in the property and then confirm their details in order to begin charging. However, in Ms C's case, there was no evidence that they had taken any significant action until they issued the bill to her. This was seven months after they received the information from Scottish Water.

Ms C then applied for a water meter and her charges were reassessed from the date it was installed. However, this was four months after Business Stream sent out her bill and eleven months after Scottish Water contacted them about Ms C's premises. Ms C complained that Business Stream did not tell her how she could request a meter or apply to have her charges reassessed. Business Stream said that there were no notes on their computer system of any conversation with Ms C about reassessment, but there was information on their website about how to apply. We considered that Business Stream should send out information about reassessment when they initially contact customers who do not have a meter installed.

Ms C had benefited from free water and waste water services for six months before Scottish Water contacted Business Stream. We considered that she had some responsibility to ensure that she was paying for these services. During our investigation, Business Stream agreed to backdate Ms C's metered charges for a short period, because they had not responded to correspondence. However, in view of the fact that we upheld her complaints that Business Stream delayed in setting up her account and failed to provide her with adequate information about reassessment, we asked them to reconsider their decision about the date to which the metered charges should be backdated, taking all of the above information into account.

Ms C also complained that Business Stream had failed to respond to some of her emails. However, we did not find any evidence of this.

Recommendations

We recommended that Business Stream:

• issue a written apology for the failure to provide Ms C with adequate information about reassessment when they initially contacted her;
• consider how they can ensure that they provide adequate information about reassessment to new customers who do not have a meter installed;
• reconsider their decision regarding what date metered charges should be backdated to in Ms C's case; and
• issue a written apology to Ms C for the delay in issuing the initial bill.

Summary

Mr C complained that the health suite in a leisure centre was closed so often in 2011 that Glasgow Life were failing to provide him with an adequate membership service. He thought that he should have been compensated for this.

We investigated the complaint, and asked Glasgow Life for details of all the leisure centre's closures in 2011. We found that there was a planned closure for six weeks at the very beginning of the year for refurbishment, and several unforeseen closures in April/May due to technical problems. These closures led to a permanent repair being made, which took two weeks in October/November. Glasgow Life also provided details of how they had mitigated the effects of the repairs and the offers made to customers for alternative use in other facilities, or to put their membership on hold, where appropriate.

Taking these details into account, we were satisfied that Glasgow Life had acted appropriately and we did not uphold this complaint. However, Mr C also complained that Glasgow Life had delayed in dealing with his formal complaint. Available correspondence indicated that this had been the case, and we upheld this part of the complaint.

Recommendations

We recommended that Glasgow Life:

• apologise for failing to deal with the complaint in terms of their complaints procedure.

Summary

Mr C complained to the council about a social services investigation into child protection issues affecting his family. Mr C said that the council had not handled his first complaint appropriately and had refused to fully respond to two further complaints he raised.

Although we noted that there were significant delays in Mr C's first complaint progressing through the council's social work complaints procedure, we considered that the council had handled it appropriately and in line with their procedures. We found that the delay was due to exceptional weather conditions over the Christmas and New Year period, along with problems the council had in understanding the detailed letters of complaint that Mr C had submitted. We also found evidence showing that Mr C was given the opportunity to provide evidence to support all the elements of his first complaint and to provide his version of events at a complaints review committee hearing.

Mr C's second complaint was about a video recording he had made, which apparently showed that social workers had provided inaccurate information at a social work child protection case conference. After obtaining legal advice, the council refused to review the recording because they said they believed it was inadmissible as evidence. They later departed from this view, and said that they were unsure whether it was lawful to use a recording that had been made covertly (ie not made openly), without the consent of the staff involved.

We have previously obtained advice about covert recordings, which allows us to provide a clearer view that an authority, such as the council or our office, may consider evidence even if it was obtained through covert recording without the prior consent of all parties involved. Relevant material in respect of a case which has been obtained covertly, without the prior consent of all parties, is not as a rule inadmissible as evidence. So, when considering a case, both the Ombudsman and the council are obliged to take into account all relevant evidence in reaching their conclusions and are under a common law duty to give adequate reasons for these conclusions. However, it is then for the authority concerned to decide how much weight they should attach to such evidence when reaching their decision about the matter. We concluded that the council should have fully responded to Mr C's complaint about the case conference and reviewed his video evidence through the social work complaints procedure.

Mr C raised a third complaint about matters surrounding the birth of his youngest child. Although the complaint was related to social services' overall child protection investigation, we considered that the council acted unreasonably in not fully responding to the complaint through the social work complaints procedure.

Recommendations

We recommended that the council:

• ask the complaints review committee to consider reviewing Mr C's video recording of, and his concerns about inaccurate information being discussed at, the case conference on 25 November 2010; and
• ask the complaints review committee to consider reviewing Mr C's complaints about the pre-birth and post-birth conferences in relation to his youngest child.

Summary

Mr C complained that the council failed to take reasonable steps to ensure that his aunt's hot water and heating system was properly maintained. He was also concerned that the council failed to deal with his subsequent complaints in a reasonable or timely manner.

Our investigation found that Mr C's aunt had had problems with the hot water and heating system for many years. However, in each case where faults were reported to the council, they had arranged for engineers to visit to attend to them. In addition, the council offered to provide a replacement hot water and heating system in January 2012, but council officers had been unable to gain access to allow this to go ahead. Following our contact with the council they offered again to install a new heating system but Mr C's aunt advised that she did not want this as it would be too disruptive. As we did not find evidence to show that the council failed in their responsibilities to maintain the hot water and heating system we did not uphold this element of the complaint.

We did, however, find that the council took longer than their stated timescale to respond to Mr C's complaint and also failed to consider earlier correspondence as formal complaints.

Recommendations

We recommended that the council:

• apologise to Mr C for failing to identify his complaint at an earlier stage, following his emails of 25 and 29 February 2012, and failing to respond to his complaint within the timescales detailed in their complaints procedure.

Summary

Ms C rented a property from a housing association. She claimed housing and council tax benefit from the council. Ms C thought that she was charged too much rent because the housing benefit department did not include an amount for a service charge on her tenancy. She said that she had asked for an explanation of her rent but they did not provide it. In early 2010, the council carried out a joint investigation with the Department for Work and Pensions (DWP), which found that Ms C was not entitled to all the benefits she had been receiving. This meant that the DWP wanted to recover incapacity benefit, and the council wanted to recover housing and council tax benefit from her. Ms C told us that she wrote to the council saying that she wanted to appeal, and they said that they would pass this to the tribunal service. However, they did not do so, as they said that the DWP could not confirm that Ms C had appealed the incapacity benefit decision. The council said that, as it was the primary benefit, Ms C needed to appeal it first before appealing the other benefits. They began recovering overpayments of housing and council tax benefit. Ms C had, in fact, appealed the DWP decision but they had overlooked this until November 2010. In December 2010, it went in front of an appeal tribunal, which upheld the original decision.

In May 2011, however, the council found that the DWP had accepted a further appeal out-of-time. On that basis, the council suspended the recovery of housing and council tax benefit. Ms C asked them to make a discretionary housing payment to write off these two benefit overpayments, but the council told her that they could not consider a discretionary payment for this purpose. Ms C made a further application for a discretionary housing payment in September 2011, as she was suffering hardship. The council did not respond as they were waiting for the outcome of Ms C's incapacity benefit appeal before making a decision. In January 2012, the incapacity benefit appeal tribunal found in Ms C's favour, and wrote off all her incapacity benefit overpayment. The council did not accept the conclusion of the incapacity benefit tribunal but agreed, as a gesture of goodwill, not to recover the remainder of Ms C's other overpaid benefits.

We found no evidence that the council provided the housing association with incorrect information about Ms C's benefit entitlement or failed to respond to her enquiries about the reasons for increases in her rent and deductions from her benefit. Our investigation did, however, find strong evidence that the council did not deal appropriately with Ms C's requests for her overpayment decision to be sent to the tribunal, and for deductions to be stopped. Although they told her that she had not confirmed that she wanted to progress matters to the tribunal, we found that Ms C had quite clearly said she wanted to appeal. In the circumstances, the council should also have considered suspending the deductions, as their policy was to stop deductions when an appeal was outstanding. We found that the council correctly refused Ms C's first application for a discretionary housing payment application. However, we found that they unreasonably delayed on the second application and failed to provide any sort of communication during the application process.

Recommendations

We recommended that the council:

• credit Ms C's rent and council tax accounts with any monies already taken relating to the overpayment, confirming in writing to her when they have done so;
• apologise for failing to suspend payments of housing benefit after her request for an appeal and providing inaccurate information for their failure;
• review their practice relating to accepting appeals and suspending repayment of overpayments to reflect housing and council tax benefit guidance;
• apologise for delaying Ms C's application and for failing to communicate effectively when processing her discretionary housing payment; and
• remind relevant staff of their responsibilities to deal with applications for discretionary housing payments promptly and to communicate effectively with applicants when considering such payments.

Summary

Mr C, complained to us on behalf of his son (Mr A). Mr A suffered a serious leg fracture in late 2010, and underwent treatment in a hospital orthopaedic department until June 2011. At that point, he sought a second opinion and received further treatment from another health board. Mr C had a number of concerns about his son's initial treatment, including about the type of fixator (a device to fix the position of fractured bones) that was used, the pain relief provided and the timing of appointments.

Having taken independent advice from one of our medical advisers, a consultant orthopaedic surgeon, we found that the decision to use an external fixator was in itself appropriate. We noted, however, that the board had not identified that one of the pins used had been placed into one of the fractures. We also noted that Mr A was not seen by a consultant until nearly three months after surgery, although we had no concerns about the treatment provided during this period. On balance, therefore, we upheld the complaint that the initial management of his fracture was inappropriate.

We upheld the complaint that on a number of occasions during his treatment Mr A was not given adequate pain relief, but did not uphold a complaint that it was inappropriate to use a sarmiento cast (a below-knee cast that allows the knee to bend) once the external fixator was removed.

Finally, we upheld the complaint that Mr A was not given timely out-patient appointments. Mr A had review appointments in April and June 2011. He was fitted with a leg brace and advised to use his leg when walking. He was given another appointment for eight weeks later. However, we found that at that stage it was clear that the fracture was not healing and required further management, but that the board failed to recognise this. By June 2011, Mr A was suffering severe symptoms and sought treatment elsewhere. We recognised that this had been a complex injury to manage, and that the orthopaedic department might have recognised that the fracture was not healing had Mr A continued his treatment with them. However, it was clear that he had already received substandard care, given that the fact that during the April and June 2011 appointments it was not recognised that the fracture was not healing.

Recommendations

We recommended that the board:

• provide evidence to the Ombudsman that the orthopaedic department ensures timely consultant review of patients when appropriate; and
• bring our findings to the attention of the staff who treated Mr A on 1, 14 and 15 February 2011 to allow them to reflect on his pain management.

Summary

Mrs C complained about the treatment prescribed by her medical practice for fungal nail infection. In addition, Mrs C was unhappy with the practice's response to her complaint and with their view that she and her husband behaved inappropriately towards staff.

Mrs C has lupus (an autoimmune disease that causes inflammation in various parts of the body). She did not take the prescribed medication after reading on the information leaflet that it was potentially harmful to lupus sufferers, and complained that it had been inappropriately prescribed. Although Mrs C's prescription was subsequently changed, she said that the new course of treatment also had an adverse effect on her health.

As part of our investigation, we took independent advice from a medical adviser. He said that available treatments for fungal nail infection can have a number of side effects, interact with many other drugs and can cause reactions including impairment of liver function. The initial drug Mrs C was prescribed can cause a lupus type effect and the British National Formulary (BNF - national guidance for healthcare professionals regarding the prescribing of medicines) advises caution when prescribing it to patients who suffer from an autoimmune disease. Our adviser said that although the BNF does not advise against prescribing the drug, there was no record to suggest that the medical practice had considered Mrs C's medical history when prescribing it, nor did they note a follow-up plan or request blood tests.

We also found that there was no evidence to show that the medical practice considered any follow-up plan when prescribing the replacement treatment. The BNF recommends that if the treatment is prescribed for more than a month, liver function should be monitored. We noted that the blood tests taken from Mrs C after she complained of being unwell were only carried out as a result of her symptoms, rather than being planned at the time of prescribing.

We concluded that although it was reasonable for the practice to have prescribed both courses of treatment, their care of Mrs C was deficient because there was insufficient evidence to show that they had actively considered the impact on her condition or monitored the effects of the drugs.

We also identified that the practice's response to Mrs C's complaint lacked relevant information about the BNF advice, and upheld this complaint. However, we did not uphold the complaint about the allegation that she and her husband behaved inappropriately towards staff. This is because, due to a lack of independent witnesses, we were unable to know for certain whether the medical practice had acted inappropriately in saying this.

Recommendations

We recommended that the practice:

• apologise to Mrs C for failing to clearly discuss the possible risks and side effects when prescribing both drugs or to actively monitor her liver function; and
• remind relevant staff to ensure that all medicines prescribed are adequately recorded and the associated risks discussed with the patient are also noted.