Upheld, recommendations

Summary

Mr C, who is a prisoner, complained to the Scottish Prison Service (SPS) about a decision they had taken about a piece of personal property, and then complained to us about their handling of his complaint.

Our investigation revealed shortcomings in the complaints handling. For example, we found that there had not been an appropriate investigation at an early stage in the process. We also found that the investigation at a later stage was inappropriate. That is the stage where the complaint is considered at a hearing of the prison's internal complaints committee (ICC). At that stage, a prisoner may request that specific witnesses are called for the hearing. The prison rules say that an ICC chair can refuse a particular witness if they have discussed this with the prisoner, and are reasonably satisfied that the evidence the witness would be likely to give would be of no relevance or value in considering the complaint. In that case, the chair must tell the prisoner before the hearing. There is, however, no requirement on them to write this down, either to confirm that a discussion took place or to record what was said at it.

We concluded that, in this case, there had not been a pre-ICC hearing and that the ICC chair had not, therefore, complied with the prison rules when refusing Mr C's choice of witness. We made several recommendations, including one related to our concern that a recurring theme in complaints to us about the SPS has been the difficulty in determining complaints where there is a lack of evidence about pre-ICC discussions.

Recommendations

We recommended that the SPS:

• apologise to Mr C for the shortcomings identified in our investigation;
• remind residential front line managers of their duties under prison rule 122(4);
• ensure that an ICC reconsider the complaint at the part five stage of the prisoner complaint form and that the governor then considers whether to endorse or reject the ICC's further decision; and
• tell the Ombudsman what action they will take to address the issue of lack of evidence in complaints that an ICC chair has not complied with prison rule 123(7).

Summary

Ms C complained to the council about noise from a neighbour on several occasions. Early on in these complaints, officers twice verified that there was excess noise, and issued her neighbour with warning notices. Ms C continued to complain to the council about noise, and they told her they would take legal action against her neighbour.

Ms C's concerns about noise continued, but she told us that she stopped complaining because she thought action was being taken. When nothing happened, Ms C made a formal complaint, and was told that there had been miscommunication within the council, and that, as there were no current complaints, no legal action would be taken.

The council's antisocial behaviour procedures specified what action should be taken in relation to each noise complaint. Our investigation found that the council did not keep Ms C updated and did not maintain records appropriately. They also failed to offer mediation early in the process, as required by their procedures. Finally, we found that internal communication had failed, meaning that because there were no recent verified complaints they were not able to take legal action even though they had said they would.

Recommendations

We recommended that the council:

• ensure that staff in the antisocial investigation team take into account and follow the antisocial behaviour procedure when dealing with antisocial behaviour complaints, including the need to keep adequate records and to consider offering mediation;
• advise the Ombudsman of the steps taken to address the communications failures that occurred in this case between the antisocial investigation team and housing support;
• ensure that a procedure to manage antisocial behaviour complaints for this type of tenancy is put in place without further delay and provide evidence of this; and
• apologise to Ms C for their failures to follow their antisocial behaviour procedure, and for the inconvenience and upset that this caused her.

Summary

Mr C complained that the council failed to properly investigate his complaint about the welfare power of attorney (person named in a legal document which appoints them to act or make certain decisions on behalf of the person who has granted permission for this) who was acting for a member of his family.

We took independent advice on this complaint from a social work adviser. The code of practice for local authorities exercising functions under the Adults with Incapacity Act (Scotland) 2000 sets out how a local authority should investigate a complaint about a welfare power of attorney. We found that the council's investigation was not carried out in accordance with the guidance in that code. There was no evidence that they had obtained relevant information and the views of other interested parties before completing their investigation, or that they had asked to see the welfare power of attorney's records.

The council had also received advice that there was no requirement for a welfare power of attorney to abide by the code of practice for continuing and welfare attorneys, and in view of this, they had not assessed the person's actions against this code. We did not consider that it was reasonable for them to disregard the code on this basis, as it sets out good practice, interpretation of the relevant legislation and a standard against which to assess the actions and suitability of an attorney. There was also no evidence that they then used anything else against which to assess the actions of the person Mr C had complained about, and we upheld his complaint about their investigation. We also found that the council delayed in responding to his complaints about their investigation and upheld his complaint about this too.

Recommendations

We recommended that the council:

• issue a written apology to Mr C for the failure to investigate his complaint about the welfare power of attorney appropriately;
• take steps to ensure that the issues he raised have been investigated appropriately; and
• make staff involved in investigating complaints against welfare power of attorneys aware of our findings on the complaint.

Summary

Mr C said that during gale force winds the boundary wall between a council building and his home collapsed. The debris fell into his garden, damaging his property, and he made a compensation claim to the council. The company who handled this on the council's behalf turned the claim down, and Mr C complained to us that in doing so they followed an unreasonable process. He said that they did not consider all relevant evidence, failed to clearly and consistently explain the reasons for their decision and delayed unreasonably in processing his claim.

Although we found that the company's record-keeping was lacking at some points, we found no evidence that they failed to consider all the evidence required to process the claim. Neither did we find the timescales in processing his claim unreasonable, although they should have written with an update during the early stages. They responded to Mr C's remaining enquiries quite promptly.

The documentation confirmed, however, that the company changed the rationale behind their decision during the course of the correspondence. This would not have been unreasonable if new evidence had come to light. However, we could see no clear reason for the differing explanations. The company made no further enquiries and did not obtain new evidence after issuing their second decision letter, but continued with the change in their reasoning. They also failed to respond to one of Mr C's main arguments in support of his claim, although they had information about this from the council. There was no clear record of the company's actions in response to each of Mr C's communications, or of how this affected their decision-making.

We were also critical because the council did not deal with this under their complaints procedure. The determination of liability would be a matter for the courts. However, a complaint about the administrative handling of a claim falls within the remit of the council's complaints procedure and should have been dealt with through that. Overall, we upheld Mr C's complaint and made recommendations.

Recommendations

We recommended that the council:

• feed back our decision to the staff involved to ensure that such failings do not occur in future;
• ensure that the company record all key actions/communications on their handling of future claims; and
• provide Mr C with a written apology for the failings identified.

Summary

Mr C's elderly mother (Mrs A) suffers from vascular dementia (a common form of dementia, caused by problems in the supply of blood to the brain). Mrs A was in receipt of a meals service provided to her at home. The council had contracted with a company (the contractor) for the meals service, and the contractor had then sub-contracted this to a meals service provider (the provider). Mr C believed that his mother might have made unreceipted cash payments to the provider's delivery driver. Mr C complained that the council did not assess the risk of doorstep cash payments for users of the meals service.

Mr C said that both the council and the provider had refused to allow him to pay by direct debit, while allowing users of the service to pay by cash on the doorstep. He complained that the council had failed to reasonably assess the risks of doorstep payments, particularly in the case of elderly and vulnerable service users. He pointed out that without receipts it was not possible to verify what payments were made. The council said that all appropriate capability and risk assessments, including security checks, were carried out and that their actions in respect of Mrs A had complied with their equality duties. They said they had not refused to allow direct debit payments - rather the provider did not have the facility for this. Following their investigation of Mr C's complaint, they said that the delivery driver now gave the recipient of the service a written receipt for cash and cheque payments. In Mrs A's case, the council also agreed to meet the full cost of the meals service with the provider and then recharge Mrs A for this.

We were satisfied that it was a matter for the council, in consultation with the contractor and the provider, to create policies and procedures for the provision and operation of the service, including payment methods. However, we upheld Mr C's complaint as, although the council had carried out various assessments in respect of users of the service, we were not persuaded that these addressed the risk issues of cash payments, particularly for vulnerable service users such as Mrs A. We also considered that the system that was in place did not have sufficient safeguards to properly evidence what, if any, payment was made when the meal was delivered, and we made a recommendation about this. We saw no evidence that the council had previously refused to allow payment by direct debit, and accepted that the system in place at the time did not allow for this.

Recommendations

We recommended that the council:

• issue Mr C with an apology for the failings identified in this complaint; and
• discuss with the contractor and the provider obtaining a duplicate receipt for all cash and cheque payments.

Summary

The council put up a fence dividing the area that Mr C and his neighbours used as a driveway, causing them difficulty in accessing the area with vehicles. Mr C complained to the council about this and then, when he was dissatisfied with their responses, he complained to us.

We found inconsistencies in the council's responses, and that they did not respond at all to one of his letters, and so we upheld his complaint.

Recommendations

We recommended that the council:

• apologise to Mr C for their failure to reasonably respond to his complaints; and
• reconsider their response to Mr C's complaints and provide him with a clear and consistent response.

Summary

When Mr C moved into a new property, he discovered that the roof space was not adequately insulated. He contacted the developer and the council. Following discussion with the developer, he contacted the council's building standards department for help and asked for a copy of an updated drawing for the roof space. It took seven months for the council to provide the drawing. Mr C was then unhappy with the handling of his complaint about this, and that an email to the chief executive had not been responded to.

Having carefully considered his complaint and documentation, we considered that there was an unreasonable delay in providing Mr C with a copy of the drawing. The council had already agreed to apologise to Mr C for this. We also found that they had not made sure that Mr C was aware of their role and limitations in helping him try to resolve issues with the developer. We found that the complaints handling had been poor. The council had not followed their published complaints procedure on a number of occasions during the handling of his complaint, and had not considered whether the particular circumstances meant that they should have escalated it straight to the investigation stage of their procedure. The council acknowledged that Mr C's email to the chief executive was not responded to in a timely manner.

Recommendations

We recommended that the council:

• feed back to building standards staff that, should a similar situation occur again in future, they should take steps to ensure that members of the public are made aware of the council's role and limitations and manage expectations appropriately;
• in light of the failings identified by Mr C's complaint, undertake a full review into their handling of it to identify what practices, processes or procedures they can put in place to prevent similar failings happening again;
• apologise to Mr C for the failings identified in the handling of his complaint; and
• apologise to Mr C for the delay in responding to his email.

Summary

When Mr C's aunt moved into a nursing home, the council provided interim funding for her fees until they could complete the appropriate financial assessment. Once this was done, they tried to recover the cost from Mr C. He complained that there was confusion about how much was owed. The council investigated and upheld Mr C's complaint. They found three main errors. They had originally charged for an additional week's care, requiring the invoice to be amended; and the nursing home had charged the council at an outdated rate for part of this time and the invoice again had to be reissued. Finally, there was a numerical typing error in one of the council's letters which meant that the amount shown as the balance owed was wrong.

We noted the problems that they had found, and what they had done to address these. However, we also found another error in the correspondence. The council had written to Mr C's solicitor to explain that the weekly rate changed on 1 April 2013. They then wrote to him again less than two weeks later to say that the change took effect from 8 April 2013. Taking everything into account, we upheld Mr C's complaint. As, however, the council had provided documentary evidence to show what they had already done to prevent this from happening again, we made only one recommendation.

Recommendations

We recommended that the council:

• apologise to Mr C for the confusion in their handling of this matter.

Summary

Ms C said that she had a contraceptive implant fitted and when it was near the end of its life, she attended her GP for a replacement. She complained that she was told that because of her high blood pressure (BP) it was not possible to do so. As it appeared that Ms C was not taking her medication to reduce her BP, she was advised to do so and return to the practice in six to eight weeks time for review.

Ms C attended again to have her implant reinserted but again her BP was noted to be very high. She was told that if there was an attempt to replace it there was a risk of uncontrolled bleeding and it was agreed that she should attend a local hospital for replacement. Ms C felt that she had been given unreasonable care and treatment because the reason why she had an implant fitted in the first place was because of her BP. She complained that the GP's actions left her without effective contraception.

During our investigation, we took independent advice from one of our medical advisers, who is a GP. The adviser said that although the GP said she had acted in Ms C's best interests and followed national advice on implantable progesterone contraception like the type used by Ms C, she had in fact misunderstood the advice. In cases similar to Ms C's, the benefits of remaining on the contraceptive, despite her BP, would likely outweigh the risks as it was recognised as a safer option for women with high BP. In the circumstances, we considered it unreasonable that Ms C was left without an effective form of contraception for over seven weeks.

Recommendations

We recommended that the practice:

• ensure the GP apologises for the fact that Ms C was left for some time without contraception; and
• ensure the GP undergoes specific training with regard to the safety and contraindications of that particular contraceptive.

Summary

Mr C complained that the board failed to appropriately investigate the cause of his severe back pain following his admission to Perth Royal Infirmary. He said the board failed to carry out an MRI scan (used to diagnose health conditions that affect organs, tissue and bone) to allow an accurate diagnosis to be reached at an earlier date, and that he had to arrange for this to be done privately.

We obtained independent medical advice on Mr C's case from one of our medical advisers, a consultant in orthopaedic and trauma surgery. Our adviser explained that Mr C's clinical picture after he was admitted should have guided the board's management of his condition. He explained that this could only be properly ascertained after taking an adequate history and clinical investigations. It appeared that the consultant orthopaedic surgeon did not fully examine Mr C, and relied on a junior doctor's examination, but this was reasonable as long as the junior doctor's assessment was thorough. However, as the board were unable to provide a copy of Mr C's medical notes for his time in hospital, we could not say whether he was properly examined. On the MRI scan, our adviser said that Mr C was not displaying 'red flag' (warning sign) symptoms but that, in view of his condition, the benefits of arranging an MRI scan outweighed the risks. He said that an MRI scan could have been arranged either as an in-patient or after Mr C's discharge, but this did not happen.

Having considered the matter carefully, we were unable to say that Mr C's symptoms were appropriately investigated while he was in hospital to find the cause of his pain. If an MRI scan had been arranged when Mr C was an in-patient, he would not have had to arrange one himself, and if one had been arranged for him as an out-patient, then it was unlikely he would have arranged his own scan. We, therefore, considered it reasonable for the board to reimburse Mr C the cost of his private MRI. We were also very critical of their management of Mr C's medical records and that they were unable to provide us with these for his hospital stay.

Recommendations

We recommended that the board:

• feed back our decision on this case to the staff involved to ensure that a similar situation does not happen in future;
• reimburse Mr C the cost of his private MRI scan;
• review their practice on the storage of patients' medical records to prevent a recurrence of the failure to store Mr C’s medical records securely; and
• provide Mr C with a written apology for the failings identified.