Scottish Government and Devolved Administration

Scottish Executive Environment and Rural Affairs Department - complaint was from a married couple (referred to in this report as Mr and Mrs C) who complainted that the Scottish Executive and Rural Affairs Department (SEERAD) had failed to take appropriate action concerning problems they had with a crofting tenant over access to their property.

Scottish Environment Protection Agency (SEPA) - complaint was from Mrs C about the Scottish Environment Protection Agency (SEPA). Mrs C complained that, because of delay by SEPA in testing samples of oil removed from the shore close to her house in Shetland on 12 September 2002, the source of the pollution could not be established. She considers that SEPA should have made an immediate effort to trace the source of the oil and stop it spreading further. In particular, SEPA should have immediately carried out tests for poison or poisonous effluent at a fish farm adjacent to the shore. However, the fish farm was not inspected by SEPA for a further seventeen days, by which time no pollution was found.

Mr C complained of failures by the Department to address a number of issues that had arisen from upgrading the A74 to a motorway through part of the land he managed. In particular, Mr C complained of failures to: clarify responsibility for future maintenance work on a private water mains to the Estate which crosses the motorway; identify the location of another water pipe for which he is responsible; conclude a legal agreement about the use of shared access; return land that was compulsory purchased and not used; and respond to correspondence.

Scottish Environment Protection Agency

A farmer complained of failures to administer the Agricultural Business Improvement Scheme (ABIS) fairly and equitably.

Separate complaints were received from three people who were the owners of animals culled during the 2001 outbreak of foot-and-mouth disease. All three complainants questioned the legality of the cull of their animals and the procedures followed in undertaking them.

Summary
Mr C complained about a prison officer inappropriately giving him a pen, which Mr C swallowed the next day, causing injury.  Mr C also complained about the length of time it took for his complaint about this to be dealt with.  I upheld both complaints and made several recommendations to the Scottish Prison Service (SPS) to address the failings in this case and prevent similar situations arising.

I decided to issue a public report on this case as my office has previously investigated and upheld a number of Mr C's complaints.  The report lists the upheld cases from August 2013 to date.  I accept that Mr C presents many challenges in terms of his care, however, I have grown increasingly concerned by the number of complaints from him which this office has upheld.  This has raised concerns of systemic failure in the way that the SPS are managing Mr C and investigating his concerns.  I also considered that Mr C had suffered a significant personal injustice in this case.

Mr C was in a separation and reintegration unit and being managed under a process which is used for handling prisoners who are at risk of suicide or self-harm.  He had repeatedly harmed himself and as a result of this was allowed no items in his cell.  At the time of the incident, Mr C was judged to be at high risk.  SPS staff were to observe him at 15 minute intervals and he was only permitted to wear anti-ligature clothing (clothing specially designed to reduce the potential for self-harm).  That day, Mr C was given a self-representation form in relation to a review of the application of a prison rule.  Although the condition that he was to have no items in use in his cell was in place, Mr C was provided with a pen to complete the form.  Mr C returned the form but kept the pen which he swallowed the next day.  I understand that this caused an internal perforation and he needed surgery to retrieve the pen and repair the damage.

The SPS position is that the pen was provided to Mr C in good faith as he needed it to complete the form.  I note their comments on there being scope to work slightly outwith the care plan conditions and that management considered that with their substantial knowledge of Mr C, this was an instance where staff were able to do so.  I did not agree that providing Mr C with a pen represented working slightly outwith the care plan.  While I accept that the form needed to be completed, I did not find that sufficient account was taken of the condition that no items were permitted when providing him with the pen.

The SPS were also unable to provide copies of the relevant care documentation that was in place on the day of the incident.  These records form an important part of Mr C's case history and I find it concerning that they appear to have gone missing and I am critical of this.  I did, however, accept the SPS's position that the conditions were unchanged from care documents dated three weeks earlier.

I am also concerned that there appears to have been no attempt to retrieve the pen after Mr C had finished using it and that this was not explored by the SPS during their investigation.  Similarly, there appears to have been no attempt to investigate Mr C's complaint that the prison officer made inappropriate comments when providing the pen.  This serious allegation is against the principles of the care process that was in place and I would have expected this to be fully investigated by the SPS at the time.

Taking my concerns about this case in to account alongside the complaints already upheld for Mr C, I have made additional recommendations to address the wider issues in managing his care while he remains in prison.  This related to the new role of Independent Prison Monitors, who help ensure prisoners' human rights are upheld and that life in prison contributes to their rehabilitation.

On the complaints handling aspects, the SPS provided their final response to Mr C well over a year after they received it and I do not consider the length of time Mr C had to wait for a response to be in any way reasonable.  There is no documentary evidence to show that any investigation of Mr C's complaint took place after it was first received or that the prison officer concerned gave Mr C any explanation for the action taken.  I note that the SPS have already noted this failing and that it has been identified as a learning point, however, I am highly critical of the complaint handling in this case.  The lack of documentary evidence of any timely investigation coupled with missing care conditions and complaint paperwork is a matter of some concern.

 
Redress and recommendations
The Ombudsman recommends that the SPS:

• (i)  issue a written apology to Mr C for the decision to provide him with a pen when the restrictive ACT 2 Care condition was in place;
• (ii)  arrange a meeting between the Governor of Mr C's current prison and a senior member of the local NHS Board to discuss our ongoing concerns about his care and to ensure that there is appropriate senior oversight;
• (iii)  highlight this issue to the new Independent Prison Monitors to ensure that they are aware of our concerns and inform Her Majesty’s Inspectorate of Prisons for Scotland we have asked for specific steps to be taken in relation to Mr C;
• (iv)  issue a written apology to Mr C for the delay in providing a response to his complaint;
• (v)  issue a reminder to all staff involved in the handling of this case that all confidential complaints should be investigated and responded to in line with the Prison Rules and associated Staff Guidance on Prisoner Complaints and Disciplinary Appeals; and
• (vi)  review how paperwork such as complaint forms and ACT 2 Care documents are managed to ensure that important information is not lost.

Overview

The complainant (Mr C) raised a number of concerns on behalf of an action group (the Action Group) regarding Transport Scotland's actions in putting the ferry route between Dunoon and Gourock out to tender.

Specific complaints and conclusions

The complaints which have been investigated are that Transport Scotland:

(a) failed to reasonably consider whether vessels offered by bidders were capable of performing with reasonable reliability (not upheld);
(b) unreasonably omitted to include a contractual clause which ensured that vessels on the route were capable of reasonable reliability in poor weather conditions (not upheld);
(c) gave insufficient consideration, during the investigation and tendering process, to the implications of the route becoming passenger only  (not upheld) ; and
(d) unreasonably failed to include Dunoon Pier in the tender (not upheld).

Redress and recommendation

The Ombudsman recommends that Transport Scotland:

(i) as a matter of urgency, continue to look at measures to reduce weather related cancellations and to increase the reliability of Route 1 for passengers.

Transport Scotland have accepted recommendation and will act on it accordingly.

Overview
The complainant (Mr C) is the father of a young person (referred to in this report as Mr A) who had recognised special educational needs and attended a mainstream secondary school (the School) in the area of Scottish Borders Council (the Council).  After bullying incidents at the School he suffered acute clinical depression (ACD).  The complaint made by Mr C related to how the Educational Psychology Service of the Council dealt with Mr A thereafter.  Mr C considered the Council had failed to implement their duties under the education legislation.  He then sought the intervention of the Scottish Executive[1] Education Department (SEED) and was aggrieved at SEED's reasons for not exercising their default powers.

Specific complaints and conclusions
The complaints which have been investigated are that:

1. the Council failed in their duty under the Standards in Scotland's Schools etc Act 2000, with regard to Mr A's educational needs following an episode of ACD (no finding);
2. the Council failed to ensure good professional management and to follow advice on good practice guidelines (not upheld);
3. the Council failed to disclose a prior 'gentleman's agreement' whereby an adolescent mental health unit rather than the Council's Educational Psychology Service took a lead role (upheld);
4. the Council abrogated their duties and responsibilities as education authority without notifying Mr and Mrs C or Mr A (not upheld);
5. an educational psychologist was directed by her line manager, for specious reasons, not to attend meetings at the School on 6 March 2003 (not upheld);
6. the Council's replies to Mr C's correspondence failed to answer his specific questions (not upheld);
7. in handling Mr C's formal complaint, the Chief Executive rewrote the complaint and failed to answer detailed points (not upheld);
8. the Chief Executive's response of 27 January 2004 to a request from SEED for information contained misleading statements and factual inaccuracies (not upheld);
9. SEED rewrote his letter of complaint to them of 30 September 2003 and failed to address all the issues (partially upheld);
10. SEED repeatedly failed to answer specific questions posed of them (not upheld);
11. SEED failed to address or explain why they did not deal with alleged breaches in duties detailed under the Standards in Scotland's Schools etc Act 2000 (partially upheld);
12. SEED failed to take appropriate action when informed of Mr C's concerns about factual inaccuracies in the Council's Chief Executive's response to them of 27 January 2004 (not upheld); and
13. SEED failed to answer questions posed by Mr C and passed their reply off as being substantive (not upheld).

Redress and recommendations
The Ombudsman recommends that the Council should give consideration to ensuring a more formal approach is adopted in informing and consulting with parents of children in future like circumstances, and particularly where there has been a significant absence from school.

The Council have accepted the recommendations and will act on them accordingly.

With reference to SEED, the Ombudsman makes no recommendation on the basis that they have advised her that instructions have been issued to avoid a recurrence of matters where the complaint was partially upheld.  However, she suggests that SEED may wish to take steps to ensure that their policy and practice in relation to exercising their default powers is fully publicised.

Overview
Mr C, who was a prisoner, complained to HMP Glenochil (the Prison) about the unreasonable delay in finalising his post programme report for the Core Sex Offender Treatment Programme.  In addition, Mr C complained that the Prison failed to take appropriate steps to resolve his complaint.

Specific complaints and conclusions
The complaints which have been investigated are that:

• (a) there was an unreasonable delay in completing Mr C's post programme report (upheld); and
• (b) the Prison failed to take appropriate steps to resolve Mr C's complaint (not upheld).

Redress and recommendations
The Ombudsman recommends that the Scottish Prison Service (SPS):

• (i)  review the current resourcing and management of Sex Offender Treatment Programmes to ensure appropriate steps can be taken to avoid unnecessary delays in completing post programme reports.

The SPS have accepted the recommendation and will act on it accordingly.