Upheld, recommendations

Summary

Mr C, a patient with long standing heart problems, complained that he was not provided with a cardiology service at Borders General Hospital for a period of nearly 18 months. We found that Mr C was not recalled for his routine six-monthly cardiology review appointment. The board said this was because, after Mr C declined surgery for an unrelated medical condition, surgeons did not let the cardiology department know that the surgery did not go ahead. We found that even after Mr C’s GP referred him again it took too long, and considerable effort on his part, to get another cardiology appointment. We asked the board to review the process by which patients are discharged from one service to another and back again. We asked them to build in safeguards to ensure the system was robust and, following review, that the process was shared and understood across specialist areas as well as within administration teams.

Mr C told us there was an unreasonable delay when a letter from the board took 49 days to reach him. The board acknowledged that there were problems with workload within the administration team and apologised for their failing. They acknowledged the delay was unacceptable. They also took steps to monitor workflow within the administration team. We found that these were reasonable actions.

We found some shortcomings in the handling of Mr C’s complaint. The initial response to Mr C’s complaint made no reference to key points he had raised. Nor did it refer to the difficulties he experienced when he contacted the board by phone. We found the board had apologised for the fact that a room used for the meeting caused Mr C distress in that it was very small and full of people when he arrived. The board acknowledged the agenda could have been better arranged. We found that the cumulative effect of these errors made Mr C feel that his complaints were not being taken seriously.

Recommendations

We recommended that the board:

• review the process by which patients are discharged from one service to another and back again and ensure, following this review, that the process is shared and understood across specialist areas as well as within administration teams.

Summary

Mr C complained that the prison inappropriately failed to give him the opportunity to make representations prior to seeking to extend his removal from association. A prison can seek approval from Scottish Ministers to stop a prisoner from associating with others to maintain good order and discipline. The prison said Mr C had been unable and unwilling to make representations and it was unlikely that his representations would have been any different from the previous extension request. They also suggested that he was only entitled to make representations if the prison governor felt it was practicable to do so. Mr C disputed that he had been unable and unwilling to make representations and he also said he was entitled to make representations in line with prison rules.

The prison rules confirmed that Mr C was entitled to make representations prior to the request being submitted to Scottish Ministers for approval. The rules say that representations should be made in writing by the prisoner or transcribed by an officer or other official on the prisoner's behalf. We obtained a copy of the relevant paperwork and in the section that should be completed by the prisoner, it noted that Mr C was unable and unwilling to complete representations. However, instructions on the paperwork confirm that a witness should sign the form, and give reasons, if the prisoner refuses to complete representations. In Mr C's case, an officer signed the form but failed to note why he was unable and unwilling to give representations.

Based on the evidence available, we were unable to establish whether Mr C was unable or unwilling, or both, to give representations because the relevant paperwork was incomplete in important aspects. We concluded that the Scottish Prison Service could not adequately evidence that they had given Mr C the opportunity to make representations, or having given him the opportunity, he refused, when seeking to extend his removal from association. In addition, we felt the fact that Mr C had been given opportunities in the past to make representations was irrelevant and the issue was that the proper process had to be followed and the relevant paperwork completed correctly. Therefore, we upheld Mr C's complaint.

Recommendations

We recommended that Scottish Prison Service:

• reflect on Mr C's case and consider how errors can be avoided in the future;
• feed back any learning to us; and
• apologise to Mr C for the failures our investigation identified.

Summary

Mr C complained that Audit Scotland failed to respond to an email asking whether they were able to investigate a complaint about a third party organisation. As no response was received to this email Mr C sought a response from Audit Scotland and, following investigation, they responded to him almost ten months later. Mr C complained that Audit Scotland unreasonably delayed responding to his earlier email, that they unreasonably shared details of his complaint with the third party organisation and that the quality of the investigation of his complaint was poor.

Audit Scotland acknowledged, and apologised to Mr C for the delay in responding to, his complaint. They upheld this element of his complaint. They did not uphold the elements relating to a potential breach of his confidentiality and failures in their investigation of his complaint. As Mr C remained unhappy, he complained to us.

We noted the steps taken by Audit Scotland prior to Mr C coming to us. We also noted that Mr C had not given his permission for them to pass his details to the third party organisation, nor had they demonstrated that Mr C had made his complaint known to the third party organisation himself. As this was, in our view, a breach of their own procedures, we upheld his complaint.

Recommendations

We recommended that Audit Scotland:

• apologise to Mr C for making his identity known to the third party agency without his permission and without evidence that he had made his identity publicly known; and
• apologise to Mr C for stating the outcomes he was seeking were outwith their complaints procedure.

Summary

The property where Mrs C lives was subject to a statutory repairs notice which meant that the council did the works by default and then recouped the cost (plus an administration fee) from the owners. Mrs C complained about the final costs of the works and said that the owners had not been kept informed or up to date about increasing costs.

We found that, upon starting work as required by the notice, the extent of damage caused by vegetation was greater than first considered (affecting the gable as well as the chimney stack of the property). While Mrs C was alerted to the fact that this would lead to an increase in costs, she was not given details of the costs incurred nor reasons why the council thought it was appropriate to continue with the works under the existing notice rather than issuing another. Accordingly, we upheld Mrs C's complaint.

Recommendations

We recommended that the council:

• provide Mrs C with a full explanation for the reasons why further works (and associate costs) were required and why it was not considered necessary to issue a further statutory notice; and
• make a full formal apology for the failures in this matter and add weight to the apology by considering waiving the administrative costs associated with the works.

Summary

Ms C owns an end of terrace house that is joined to a council owned property. When the council carried out improvement works on the roof of their property they required access to it through Ms C's garden. Ms C complained that she had not been told in advance by the council that the works would be carried out. She also complained that the council's contractors had damaged her garden and her roof while carrying out the works, and that she had to pay for the damage.

The council said that Ms C was sent a letter in advance of the works. They offered to remedy the damage made to the garden, however said they were not liable for the damage to the roof.

During our investigation we found that the council did not have any evidence that Ms C was informed of the works in advance and so upheld this complaint and made a recommendation to address it in future. We noted that the council had offered to remedy the damage in the garden, however the contractor had then not done this. For this reason, we upheld the complaint and recommended that the works take place as soon as possible. We concluded that the council had caused some of the damage to Ms C's roof and had not taken steps to remedy it. We upheld this complaint and recommended they reimburse Ms C for the cost of the repairs.

Recommendations

We recommended that the council:

• consider how to record neighbour notification of works;
• ensure remedial gardening works are carried out; and
• reimburse Ms C for the cost of the roof repairs.

Summary

Miss C complained to us that the council did not respond reasonably to her complaint about the transition arrangements for transferring her child from nursery to primary school and that her child's educational needs were not being appropriately met at the school. Miss C's child has additional educational needs and, at the time she complained to us, was being assessed for autistic spectrum disorder.

We were satisfied that the council took Miss C's complaint seriously. They appointed a council education officer to investigate, who met with Miss C to discuss the complaint and the proposed investigation. The findings and proposed recommendations of that investigation were discussed with Miss C at a second meeting during which the council accepted that there were failings in the service Miss C had received. They said that lessons had been learned and they apologised.

However, we were of the view that the council's final decision letter, issued after the second meeting, was premature. This was because Miss C's comments on the minutes of the meeting had not at that time been received and because the officer had told Miss C that she was postponing sending the final decision letter as her involvement was ongoing and a further meeting had been scheduled for a later date. Also, as the decision letter was the council's final response on Miss C's complaint, we considered that the council should have informed Miss C of her right to independent mediation and adjudication under the Education (Additional Support for Learning) (Scotland) Act 2004, if she was dissatisfied with the outcome of the investigation of her complaint. There was no evidence the council did so at that time and this alternative avenue did not appear to have been raised until two months later when Miss C made a request for independent mediation after she had removed her child from the school. We were critical of the council for their failure to do so.

Recommendations

We recommended that the council:

• issue a written apology to Miss C for the failings identified in the handling of her complaint; and
• take steps to ensure that parents of children with additional support needs are appropriately advised of their rights under the Act to access independent adjudication and mediation.

Summary

Mr C complained to us about the council's handling of an application for local housing allowance (LHA) from the tenants of his flat. As landlord, Mr C became concerned when his tenants were late with their rent payment. He requested the council pay the LHA directly to him, and submitted appropriate evidence. They assured him he would receive the appropriate payment when they had processed his application. Two months later the council processed the tenants' claim for LHA, along with Mr C's claim for direct payments and found that the tenants were already receiving payments for a previous tenancy. Mr C, therefore, only received a payment for two weeks' rent, as that was the amount of LHA outstanding at the time of processing.

The council admitted that there were delays in processing the LHA claim. However, they said that they could not make further payments as the tenants had received appropriate LHA payments and they could not raise further payments for the account.

We confirmed that the council delayed in processing both claims. We found that this led them to provide Mr C with inaccurate information, and to continue payments to the tenants even when Mr C had provided sufficient evidence of rent arrears. We concluded that, as the council were responsible for these failures, they should pay Mr C the equivalent of the LHA payments made after his application for direct payments.

Recommendations

We recommended that the council:

• pay Mr C the equivalent of his tenants' rent for the relevant period;
• apologise to Mr C for the delays in handling his tenants' LHA application, for providing him with misleading information, and for the time and effort involved in this complaint; and
• put arrangements in place to ensure that landlords are appropriately informed of any delays in processing and the possible impact this may have on their tenants' LHA claim.

Summary

Mr C's home was regularly affected by flooding. Mr C complained that this was due to an inadequate road drainage system. He said that the council had accepted this, but although they had committed in 2012 to resolve the problem, no work had been carried out. The council said they had been actively seeking a solution to the problem since 2013 following a formal complaint from Mr C. They required access to privately owned land and negotiating this had proved complicated. They accepted matters had taken longer than they would have wished, but felt they had acted reasonably and that the delays were due to matters outside their control.

We upheld Mr C's complaints. Our investigation found the council had made a written commitment to resolve the problem in 2012. The evidence showed that they had not, however, pursued this solution until Mr C had formally complained and contacted us about their lack of response. We found the delay in starting work on the project was excessive and was due in part to failures by the council. We also found that the council adopted a contradictory position by accepting responsibility in 2012, before suggesting, when Mr C complained in 2013, that he was responsible for managing flood risk. This also contributed to the delay in commencing work to mitigate the flood risk to his home.

Recommendations

We recommended that the council:

• apologise for the failings that our investigation identified;
• update Mr C and us on the progress being made against the timetable for completion of the project; and
• provide Mr C and us with a clear timetable for completion of the project.

Summary

Mrs C complained about an unauthorised development immediately adjacent to her home. She said that in June 2013 work began in the field next to her house and it quickly became apparent that this was to develop a caravan site. A planning application was submitted for part of the site. In September 2013, the council issued a temporary stop notice with regard to the works and also obtained an interim interdict from the sheriff (a temporary court order stopping a particular course of action). Court proceedings began after the interdict was breached and a planning enforcement notice was issued. Thereafter, another planning application was made for the remainder of the site (for which no application had been made).

No appeal was made against the council's enforcement notice which, therefore, took effect in December 2013. The compliance date expired in January 2014 without any action being taken against the developer. Then, in April 2014, both planning applications were withdrawn. Court proceedings against the alleged operator were dismissed in August 2014 and, the following month, two new planning applications were made for the site which were subsequently deemed to be invalid.

Mrs C complained that although the opportunity existed for the council to take action and clear the site, they failed unreasonably to do so. As a consequence of the unauthorised works that have taken place, she said that her house and business have been detrimentally affected and her home is at risk from flooding.

The council said that they took such breaches of planning control very seriously but that the situation next to her home was not straightforward; once the notice had expired which allowed time to appeal or comply, the only action remaining to the council was to remove the caravans and associated buildings by direct action. The council said they were considering this and developing a formal strategy to address the unauthorised development which they hoped would be in place by June 2014.

We took independent advice from one of our planning advisers and we found that there was uncertainty of timing of action regarding ongoing court action and the planning applications. There was also uncertainty over the need to obtain powers over the entire site before taking direct action which required professional judgement on the part of planning officers. Up until spring 2014, all of the measures taken by the council to remedy the breach were reasonable and part of the suite of statutory planning enforcement instruments available under planning legislation. Similarly, it was reasonable for the council to await outcomes of planning applications and court action at the same time as formulating a strategy of action. However, although the council had spoken about a plan of action, they had, in fact, made very little meaningful progress towards it and towards an effective remedy for the breach of planning control. Little was done to expedite action and there was little assessment of the available options. Throughout this time, Mrs C was left with a large and unauthorised development next to her house, so we upheld her complaint.

Recommendations

We recommended that the council:

• make a full apology for the delay in pursuing a plan to deal with the unauthorised development and for the distress and inconvenience suffered; and
• ensure that relevant planning officers review the circumstances of this complaint to see where opportunities were lost to progress matters and to develop an action plan to avoid them in the future. They should inform us of the plan they agree.

Summary

In January 2013, Mr A attended the medical practice as he had ongoing chest pain and a cough. A chest x-ray and blood tests were arranged and the results came back normal. However, as his pain was continuing he was given painkillers. In March 2013, Mr A attended the practice again because his symptoms were continuing and he was referred to hospital for a specialist opinion. Mr A was seen in hospital in May 2013 although, in the meantime, the practice prescribed him increasing painkillers and his tests were repeated but again with no result. After a difficult diagnosis pathway, Mr A was advised over the phone by his GP in September 2013 that he had cancer, and he died in May 2014.

Mr C complained to the practice on behalf of Mr A's widow (Mrs A) that it had taken the practice too long to refer Mr A for appropriate tests and opinion and that there was a lack of urgency to provide him with any meaningful treatment. He further complained that a GP within the practice told Mr A of his diagnosis over the phone, which he said was inappropriate and showed a lack of compassion.

We took independent advice from one of our GP advisers and we found that while Mr A was treated reasonably and appropriately and that efforts were made to treat his pain, he was not referred to hospital in line with national guidelines for suspected cancer. His referral should have been urgent rather than routine. Because of this, there was a delay in him being seen in hospital and a delay in his treatment being started. While it was confirmed that Mr A had been told of his diagnosis over the phone, this was for the best of intentions in order to explain his increasingly strong painkillers. Nevertheless, this should not have happened and arrangements should have been made for a house call or for Mr A to attend the practice. In light of the advice we received, we upheld Mr C's complaint.

Recommendations

We recommended that the practice:

• make a formal apology to Mrs A for this failure;
• ensure that all medical staff familiarise themselves with the national referral guidelines for suspected lung cancer; and
• ensure that the GP reflects on the distress caused and he ensures that the matter is raised at his next formal appraisal. He should advise us that he has done so.