Some upheld, recommendations

Summary
Mr C complained that as a result of building works to construct a new bus station, a temporary one-way system was introduced.

Mr C lives in a road which was made into a one-way road as part of these works. A temporary traffic regulation order required all traffic to travel west and introduced double-yellow lines along parts of the south side of the road. Mr C said that, before the introduction of the temporary one-way system, parking was controlled by double-yellow lines along the north side of the road. On the south side, there were marked parking bays and, at the entrances to residents' driveways, white 'H-bars' were marked out. These were extended to prevent parking opposite driveways on the northern side of the road, if there was no driveway immediately opposite.

When the building works finished, two-way traffic was reinstated. The temporary double-yellow lines on the south side of the road were removed along with the marked parking bays that had been there previously. Mr C complained that the parking restrictions on the road were not the same as had been in place previously and that road safety had been compromised as a result. He raised his concerns with the council and presented them with a petition from other residents who were dissatisfied with the revised road layout.

We did not uphold Mr C's complaint that the council unreasonably failed to reinstate the original parking spaces and double-yellow lines. This was because the council have discretion as to what road markings are used as long as these are in line with existing traffic regulation orders and the Traffic Signs Regulations and General Directions 2002 (the regulations). Whilst the parking bays had not been reinstated and the H-bars may not be the same as they were previously, we were satisfied the council have shown that their decisions were made with reference to pre-2006 plans and the regulations. As such, we found no evidence of maladministration in their reinstatement of the two-way traffic layout on the road.

We upheld Mr C's complaint that the council unreasonably failed to take the wishes of residents into account. The correspondence showed that Mr C's complaint to the council changed after his initial letter of complaint (which was a personal concern about difficulty in exiting his driveway). The council responded to these concerns. However, when Mr C contacted them again on behalf of the residents, the evidence we saw indicates that the council continued to take the view that his concerns about the driveway were the main reason for his complaint rather than the residents' concerns about road safety.

We found no evidence to show that these group concerns were fully taken into account. Although the council had looked into safety issues, no formal records were kept of their investigation into the residents' concerns. We, therefore, recommended that the council consider carrying out a road safety audit.

We also upheld Mr C's complaint that the council failed to deal with his complaint appropriately. While we were generally satisfied with the promptness of the council's responses and their explanations of their position about the markings on the road, we found that their responses did not adequately acknowledge the specific points that Mr C had raised and the reasons for his complaints.

Recommendation
We recommended that the council:
• consider carrying out a road safety audit.

Summary
Mr C complained about how the council handled a request for an amendment to planning consent for a house to be built on part of a neighbour's garden ground. Mr C complained that the council had failed to assess the request properly and that the conditions attached to the planning consent could not be achieved. He was also unhappy with the council's handling of his representations and his complaint.

The decision on whether or not to accept an application for this kind of non-material variation is a discretionary one for the council to take. We are not an appeal body for the decisions of organisations. We can check a decision is properly made and will look at the process and procedures involved. If we find that something's gone wrong, we can make recommendations to put things right. In this case, our investigation found no evidence that the council failed to correctly exercise their discretion.

We did, however, uphold Mr C's complaints about poor complaints handling. Before we became involved the council had accepted that there were failings in how they handled Mr C's complaint. Our investigation also found that the council had failed to respond to specific questions raised by Mr C in his correspondence.

Recommendation
We recommended that the council:
• apologise for failing to respond fully to Mr C's questions.

Summary
Mr C is a member of the board of a charitable trust. He complained on their behalf that senior officers of the council acted to the detriment of the trust. In particular he alleged that the council's chief executive misrepresented information to the council and that the director of finance delayed in his dealings with the trust. Mr C told us that, as a consequence, the trust failed to receive monies they said they had been guaranteed.

The investigation showed that the chief executive had complied appropriately with the directions of an appeal panel that had reviewed the circumstances of Mr C's complaint. We found, however, that the director of finance delayed in responding to some correspondence for around six months. This was too long, and we upheld this element of the complaint.

Recommendations
We recommended that:
• the director of finance should provide a formal, written apology to the trust acknowledging his failure to respond in a timely manner to their correspondence; and
• the council emphasise to all their staff the importance of responding timeously to members of the public who have taken the trouble to write to them.

Summary
Mr C complained to the council about a business premises next door to his property. The council gave planning consent for alterations to a workshop within the premises, including a condition that placed restrictions on the operating hours of the business. Mr C said that his family life had since been unreasonably disrupted by activities at the premises and was unhappy that the council failed to enforce the condition. The council explained that the condition was attached in error as, given the nature of the permission sought in the original planning application, operating hours should not have been considered. We, therefore, upheld Mr C's complaint that the council gave consent that included an unenforceable condition, as we found the planning officer dealing with the application should not have included the condition. We did not uphold Mr C's complaint that it was inappropriate for the council not to take enforcement action in relation to the condition, as we found it would have been disproportionate and not in fact lawful for them to do so.

Mr C also complained that the council failed to take any action against the owners. He said that the owners had misled the council and the public, as the application did not say that they intended to sub-let the premises to another business. We found, however, that the owners were not required to include this information in their application. Finally, Mr C complained that the council had not taken reasonable steps to protect the amenity of neighbours to the site. Although we did not uphold this complaint, we recommended that the council now review the position at the premises.

Recommendations
We recommended that the council:
• arrange for environmental health officers to conduct a further site visit at the premises; and
• undertake an assessment of the activities conducted at the premises to ascertain whether or not an intensification of use has occurred.

When it was originally published on 27 March 2013, this case was wrongly categorised as ‘not upheld’. The correct category is ‘some upheld’

Summary
Ms C's daughter (Miss A) was referred to hospital complaining of difficulty swallowing. She also had abdominal pain and tenderness. An endoscopy (an examination using a camera on a thin tube) was carried out but the endoscopist did not report any significant abnormalities. Miss A was seen by an ear nose and throat surgeon about two months later. He arranged for her to be admitted to another hospital where further examinations and tests were carried out. Miss A was found to have a large cancerous tumour in her throat. She was discharged from hospital with a plan to provide chemotherapy and radiotherapy. Before her scheduled treatment date, however, her condition deteriorated and she was admitted to hospital. Miss A received two courses of chemotherapy, but died shortly after her second treatment.

Ms C complained that her daughter's tumour was not diagnosed by the endoscopist. She felt that, had it been, Miss A could have commenced treatment sooner, and her prognosis might have been better. Ms C also raised concerns about the monitoring of Miss A's condition, communication with the family and mistakes made by the board in their minutes of a meeting with the family to discuss their complaints.

After taking the advice of two of our medical advisers, we did not uphold most of Ms C's complaints. We accepted that the endoscopy was not designed to examine the area of Miss A's mouth where the tumour was visible. Whilst we felt that some view of the mouth should have been taken, this would in fact have been to check for obstructions rather than a diagnostic examination.

We also found that Miss A had restricted movement of her neck and jaw and that this, combined with the process of swallowing the endoscope, would have restricted the available view. Although we were satisfied with the endoscopist's actions we were, however, concerned to note that she had said that she would not examine a patient's mouth prior to the procedure. We asked the board draw her attention to our comments about the importance of non-diagnostic oral examinations.

We were also satisfied that investigations into Miss A's condition were appropriately progressed after the endoscopy. One of our advisers noted that the tumour was so advanced that, even had it been found on the day of the endoscopy, Miss A's prognosis would not have been any different. We found the board's monitoring of Miss A's condition, and their communication with Miss A and her family while she was in hospital, to be appropriate. We did not find evidence of specific details being provided to the family when the hospital decided to discontinue treatment. However, we felt that it was not necessarily appropriate for staff to do so and were satisfied that the family had the opportunity to ask questions of the staff on duty.

The board's minutes of their meeting with Ms C stated that Miss A had been present, rather than her sister. We upheld Ms C's complaint about this and about the general accuracy of the minutes, recognising the impact that this administrative mistake would have had at a time of such distress.

Recommendations
We recommended that the board:
• draw our adviser's comments regarding non-diagnostic oral examinations to the endoscopist's attention; and
• apologise to Ms C in writing for their mistake in the meeting minutes.

Summary
Mrs C complained that the board refused to provide her with batteries for her privately purchased hearing aid and was unhappy with the way they dealt with her complaint. (They had previously supplied batteries for her old hearing aid, which was also privately purchased.)

Our investigation found that, when Mrs C replaced her hearing aid, the battery required was a different size. The board told her that they could no longer supply batteries because they only provide batteries that fit NHS hearing aids, which only use the same size of battery as Mrs C's previous hearing aid. We considered this to be reasonable and did not uphold this complaint.

Mrs C also complained that her complaint was not properly handled. She said that someone she had previously complained about was involved in providing information for the board's response, and the responses to her complaint were delayed and contradictory. We found that it was appropriate for the person concerned to have been involved in the complaint response, as the complaint was about policy for which the individual had responsibility. We did, however, uphold the complaint about delay as we agreed that responses were delayed and contained contradictory information, and made a recommendation to the board about this.

Recommendation
We recommended that the board:
• apologise to Mrs C for the failings identified.

Summary
Mrs A had been receiving treatment for high blood pressure for a number of years. She had three strokes within six months. Mrs A's husband, Mr C, complained that their GP practice failed to provide appropriate advice to him when he contacted them about the first and second strokes. Mr C also complained that the practice failed to respond within a reasonable timescale when Mrs A's stroke nurse reported high blood pressure results shortly before the third stroke.

In looking at the records, we could not determine exactly what was said when Mr C spoke to the practice on the day Mrs A had her first stroke, as there was no direct objective evidence. However, the records did show that the practice's advice to bring Mrs A to the evening surgery on the day of her first stroke was reasonable. While we acknowledged this, there was no record of advice given to Mr C about what to do if Mrs A's symptoms worsened. In addition, one of our medical advisers was of the view that Mrs A should have been taken to hospital that evening by emergency ambulance. In relation to the day of Mrs A's second stroke, the practice advised Mr C to bring her in for a consultation the following morning. In our view, she should have been seen and assessed on the same day, given her history and unresolved symptoms. Taking all of this into account, and noting the views of our adviser, on balance we upheld this complaint.

In relation to Mr C's second complaint, the records showed that the practice discussed Mrs A's high blood pressure results with the stroke nurse, and arranged for further review and a home visit. Our adviser's view was that the practice acted appropriately in the circumstances. Taking this into account, we concluded that the practice did respond within a reasonable timescale and, therefore, we did not uphold this complaint.

Recommendation
We recommended that the practice:
• review their protocol for the management of hypertension, in terms of the threshold for referring patients to a hospital consultant. This would include urgent referral and emergency ambulance transfer to hospital of patients suspected of stroke if symptoms persist on assessment.

Summary
Ms C was admitted to hospital on two occasions. She said that before each admission she had lodged an advance decision with the board to cover the care and treatment she was prepared to accept. She was unhappy with the care and treatment she received. She said it did not agree with her advance decision; that the advance decision was not recorded in her notes until after the first admission; she waited around six hours before receiving treatment; she was incorrectly told to take her own medication; staff took offence at her; her advance decision was not respected and it was inappropriate for staff to ask about her mental health problems.

Our investigation took account of all the available information, including Ms C's medical records. We obtained medical advice from two medical advisers.

A medical adviser said that advance decisions are drawn up to indicate how an individual would wish to be treated, should they be unable to make that decision at the time. There was no indication in the medical records that Ms C was in that position at the times concerned. However, we found that the advance decision was not inserted in her records at the right time and that on admission, she waited too long before receiving treatment and we upheld her complaints about these matters. We also found that staff told her, incorrectly, to continue taking her own medication once she was admitted to a ward and that in view of this a member of the medical team (correctly) refused to continue to give her strong apin relief. There was, however, no evidence to show that a member of staff took any offence at Ms C or her requests. We also found that it was appropriate for staff to discuss Ms C's mental health with her even though it had no apparent bearing on her physical presentation at the time.

Recommendations
We recommended that the board:
• apologise for the delay in 2010 in attaching the advance decision to the relevant notes;
• audit their current process to lodge records information and act on any recommendations subsequently made; and
• review the means, in Crosshouse Hospital, by which they ensure that acute admissions are promptly assessed by medical and surgical staff in their acute wards and that actions taken to ensure attainment of the four hour target do not compromise patient care. An audit of time from presentation at Accident and Emergency to review by medical staff would support such an aim.

Summary
Mr C's wife (Mrs C) was admitted as an emergency case to hospital, but passed away the next day. Mr C was unhappy that the board did not contact him to tell him that his wife had died, and that he only found this out when he called to ask how she was. Mrs C had also wished for her body be donated for the benefit of medical science, and Mr C complained that the board unreasonably failed to contact a local university to arrange for her body to be taken there for this.

Our investigation found that when admitted to hospital, Mrs C had said she had no next of kin and had asked that her GP be told about any changes in her condition. We, therefore, did not uphold this complaint. We also found, however, that Mr C had been in touch with the hospital enquiring about her condition, but no note had been made about this, nor had the board given him a full explanation of their findings. We, therefore, made recommendations to address this.

We upheld the complaint about what happened to Mrs C's body as we found that the board were aware of Mrs C's wishes but that after she died they failed to contact the university to explore the possibility of donation. We also found during our investigation that the board's initial decision not to refer Mrs C's death to the procurator fiscal was incorrect and that they did not properly investigate Mr C's complaint or make him fully aware of what they had found out.

Recommendations
We recommended that the board:
• apologise for not having provided a full explanation of their findings when responding initially;
• apologise to Mr C for their failure to act upon his wife's wish to have her body donated to medical science; for initially failing to make the correct decision on referral to the procurator fiscal; for failing to thoroughly investigate his complaint and for failing to report the findings of their investigation to him;
• feed back the Ombudsman's views on this complaint to the staff involved to try to ensure that such failings do not happen again; and
• write to the Ombudsman to explain what action they have taken to implement the remedies suggested as a result of their investigation and provide evidence regarding their implementation.

Summary
Mr C rears cattle. He complained about the actions of an officer working on behalf of the Animal Health and Veterinary Laboratories Agency (AHVLA) (an executive agency of the Department for Environment, Food and Rural Affairs, working partly on behalf of the Scottish Government). He also complained about the AHVLA's handling of his complaints.

Mr C complained that the officer had been aware of the location of some of his cattle, yet had written asking for clarification of their whereabouts. Mr C said that one of the officer's colleagues had told the officer where the cattle were. We did not , however, uphold this complaint as there was no evidence available to suggest that the officer was in fact aware of the location of the cattle. Although there appeared to have been some misunderstanding during the correspondence between the officer and Mr C, it was clear that the movements of the cattle were complex and we considered it reasonable for the officer to seek clarification of their whereabouts.

Mr C also complained that the officer had unreasonably requested that Mr C present his cattle for testing, when the officer had not done anything about the situation for over two years. Our investigation established there were a number of sound reasons why he had not made contact with Mr C during that time. These included that Mr C had made a complaint about the officer to the Royal College of Veterinary Surgeons; there were ongoing criminal proceedings against Mr C in relation to the Tuberculosis Order 2007; and the Rural Payments and Inspections Directorate were trying to complete inspections of the cattle. The officer had, therefore, been advised to await the conclusion of all of these before contacting Mr C again about tuberculosis testing, which is why the delay occurred. On that basis we did not uphold this complaint.

We upheld Mr C's complaint about the AHVLA's complaints handling, as we found that they did not respond fully to all aspects of Mr C's complaint letter.

Recommendation
We recommended that Scottish Government:
• review their complaints handling procedure to ensure complainants receive full responses to complaints.