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Annual Report of the Ombudsman 2000

Chapter Four - Selected Cases

Department of Education and Science

Provision of Escorts for Special Needs Pupils

I received a complaint against the Department of Education and Science regarding the provision of escorts for special needs pupils on school transport. The complainant's son first entered school in September 1999. As he suffered from autism, it was recommended that he be accompanied by an escort while travelling to school on the bus. The Department provides funding to schools for escorts in these circumstances but it has found that some schools have been unwilling to operate the escort scheme for various reasons. In this particular case, the school was unwilling initially to take responsibility for employing the escorts and Bus Éireann could not, therefore, take this pupil to school unescorted. His mother had to transport her son to school each day which involved a 92 mile round trip. The Department initially provided a grant of £7.54 (€9.57) per day towards the cost of her transport, which she appealed and was allowed an enhanced grant of £46 (€58.41) per day. The complainant regarded this as an interim measure, subject to resolving the difficulties with the provision of escorts on the bus service. She also complained that, as she had to collect her daughter from another school, her son had to leave school one hour early each day, which she regarded as detrimental to his development.

The Department told to me that the Board of Management (BOM) of the school had returned the funding it had been allocated on the basis that it felt that school transport was not its responsibility. It was not prepared to take on the administrative duties involved and was concerned about possible legal implications. The Department also stated that it was prepared to allow the BOM to use savings, which accrued to the school as a result of escort duties costing less than the grant paid, to acquire administrative assistance with the operation of the scheme. The BOM reconsidered but again rejected the proposal to operate the scheme, for the reasons stated above and in addition citing health and safety issues and the adverse impact of the additional duties on the work of the Principal.

The Department met a delegation from the school in May 2000 to discuss its concerns. Issues of liability and the difficulties arising from the remote location of some of the bus routes were raised and the BOM agreed to reconsider its position. In September 2000, it agreed to operate the scheme and to engage escorts for the bus service.

While the Department's engagement with the BOM led to a satisfactory outcome to the complaint, I was concerned that the process took an entire year during which time the complainant had to travel long distances each day in order to ensure that her son received the education to which he was entitled. I consider that the issues raised by the school in this case in regard to the administration of the scheme, liability, health and safety issues, are of a nature which could have been adequately foreseen and dealt with at the time the grant was initially provided to the school.

The Office of the Revenue Commissioners

Vehicle Seizure

The complainant purchased a vehicle in Northern Ireland and subsequently brought it into the State. Registration of the vehicle and payment of the relevant Vehicle Registration Tax (VRT) would have been due by the end of the next working day following the arrival of the vehicle in the State. The complainant failed to comply with this requirement and as a consequence his vehicle became liable to seizure.

In April 1999 the vehicle was advertised in a magazine and prospective purchasers were requested to ring the complainant's number for further details. On 7 May 1999 a Revenue Mobile Service (RMS) Officer, posing as a potential purchaser, rang him and expressed an interest in the vehicle and asked to see the vehicle in a car-park in the local town. The complainant was initially reluctant to proceed with this arrangement but eventually agreed to the RMS Officer's request to drive the vehicle to the car-park. Two other officers in the RMS, who were aware of the arrangement agreed between the complainant and the other RMS officer, stopped the complainant en route to the car-park and seized the vehicle.

The principal issue in this instance was not whether the complainant had complied with his legal obligations to register the vehicle and pay VRT but rather the methods employed by the RMS which led to the seizure of the vehicle. From the evidence available it appeared to me that the object of the arrangement whereby the complainant was persuaded to drive the vehicle to the car-park was solely to facilitate the seizure of the vehicle while it was being driven by him. The methods employed in this case which led to the seizure of the vehicle seemed to be in conflict with Revenue's Charter of Rights which sets out the fundamental standards of treatment which taxpayers can expect to receive in their dealings with Revenue. The Charter indicates that these standards should be achieved in a manner which fosters the highest degree of public confidence in Revenue's integrity, efficiency and fairness.

I felt that there were sufficient and adequate alternative enforcement powers available to the Customs and Excise to ensure compliance with VRT requirements and that the means used in this instance for the seizure of the vehicle amounted to an undesirable administrative practice and were contrary to fair or sound administration.

I suggested to the Revenue Commissioners that the procedure which led to the seizure of the vehicle in this instance should not be used in future and that they should issue a letter of apology to the complainant.

The Revenue Commissioners issued an apology and acknowledged to me that the circumstances surrounding the seizure of the vehicle did not meet the standards set down in the Charter of Rights. They added that the unsatisfactory manner in which enforcement action was taken had been brought to the attention of the officers concerned and that they intended to keep the matter under review. .

Department of Social, Community and Family Affairs

Protecting Clients' Privacy

A man complained to me about the way the Department of Social, Community and Family Affairs had dealt with his complaint. He had been interviewed on a public street by a Social Welfare Inspector (SWI) about his entitlement to Disability Allowance.

I considered that the decision by the SWI to carry out the interview from his car on the public street was an example of poor administrative practice. The Department acknowledged that the SWI exhibited poor judgement on the occasion and it advised him accordingly and apologised to the complainant for any upset caused.

From my examination I was satisfied that the Department took a serious view of the complaint and conducted a thorough investigation of the matter. Notwithstanding this, I drew the attention of the Department to the Guide to Standards of Best Practice for Public Servants in which I outlined that dealing properly with people means dealing with them:

"sensitively, by having regard to their age, to their capacity to understand often complex rules, to any disability they may have and to their feelings, privacy and convenience".

I also asked the Department to address the issue of proper procedures relating to interviews with recipients of Disability Allowance. The Department advised that, subsequent to the incident complained of, all SWIs underwent an intensive training course which included training on interviewing skills. A substantial part of that course dealt with the issue of disability in general and, in particular, how SWIs should deal with persons with a disability. In addition, it was emphasised that they are expected to deal with the Department's customers with tact and courtesy and to respect their privacy.

Eligibility for Contributory Old Age Pension

A complainant was awarded a Non Contributory Old Age Pension (NCOAP) of £72.50 (€92.06) per week from 28 May 1999 but he asserted that he should have had an entitlement to Contributory Old Age Pension (COAP). He contended that the Department of Social, Community and Family Affairs had based its decision on an incorrect social insurance record and had used the wrong insurance number when tracing his social insurance contributions. He first applied for COAP on 18 November 1986. His date of birth was verified as 11 November 1921 making him aged 66 on 11 November 1987. The claim was refused because his yearly contribution average was only 16 per year over the 24 year period 1962 to 1986 and at the time, a yearly average of 20 was required for COAP. From November 1997, the minimum yearly average was reduced to 10 contributions. However, as an applicant needed 260 paid contributions in order to qualify under this relaxed rule and the complainant had only 205 paid contributions, he still did not qualify.

The initial response from the Department was based on the social insurance record as outlined above. However, when the records in the Central Records Section (CRS) were examined, I found that these contained additional credited contributions from 1973 to 1985/86 not previously included on the record obtained by the Department's Pension Services Office. The Department explained that the credits were added to the complainant's record after its original decision in 1986 to refuse his pension application. A note on the Department's COAP file referred to unemployment credits for 1986 but there was no elaboration on previous years or when they were added to his social insurance record. The Department recalculated the complainant's contribution record and this resulted in a yearly average of 44.

As a result the Department awarded a retirement pension, payable from the complainant's 65th birthday, and he was awarded COAP from his 66th birthday. Total arrears issued in the sum of £73,875 (€93,801.90) made up of £61,588 (€78,200.63) COAP arrears and £12,287 (€15,601.27) compensation for lost purchasing power. These figures were net of NCOAP already paid to him.

Voluntary Social Insurance Contributions

When a person under age 60 is no longer covered by compulsory social insurance, he or she can choose to maintain cover by paying voluntary contributions. To avail of this facility the person must apply to the Department of Social, Community and Family Affairs within 12 months of the end of the tax year during which he last paid social insurance, or had a social insurance credit. In general, these contributions maintain the same level of cover which the person had previously enjoyed when last working and paying compulsory social insurance as an employee or a self-employed person.

I received complaints from a number of persons who had been self employed and paid their social insurance which was incorporated with their preliminary tax payments to the Revenue Commissioners. However, the Inspector of Taxes subsequently determined that they had no liability to tax and their preliminary payments, including the social insurance element were refunded. Income from self employment which is under £2,500 (€3,174.34) a year is not liable for social insurance. However, at the time the refund was made the complainants were not advised of the possibility of becoming voluntary contributors.

When they sought to become voluntary contributors the Department refused them on the grounds that they had not applied within the required time limits. They argued, without success, that they could not comply with this requirement as the Revenue Commissioners had failed to advise them regarding the scheme.

I asked the Department to examine the arrangements it had in place with the Revenue Commissioners for advising people on incomes of less than £2,500 (€3,174.34) of the option of becoming voluntary contributors. The Department agreed to review its earlier decisions and decided to admit the complainants as voluntary contributors on the basis that they had not been advised of the possibility of paying voluntary contributions at the appropriate time.

The Department also stated that, in conjunction with the Revenue Commissioners, it would in future check self employed returns in order to identify people who had ceased compulsory insurance. This system, which entails cross checking against the previous years returns, will ensure that all self employed contributors, who in future cease compulsory insurance, will be correctly notified of their entitlements.

Meath County Council

Breach of a Wayleave Agreement

This complaint against Meath County Council revolved around the installation of a pipe across the land of an elderly man. The diameter of the pipe which the Council installed was larger than that specified in a 1988 Wayleave Agreement between the Council and the landowner.

The complainant, acting on behalf of his father, stated that a member of the engineering staff of Meath County Council (Mr A) approached his father saying that the Council wanted to put a 225 mm (9 inch) diameter pipe through his lands (from the main road to the River Boyne) to alleviate flooding on the main public road. The complainant was assured that the sole purpose of the pipe was to drain the public road. On these terms, his father agreed and accepted a payment of £1,000 (€1,269.74) for a wayleave through his land. The complainant stated he subsequently discovered that the Council had installed a larger size pipe (300 mm - 12 inches in diameter) than was specified in the Wayleave. This, he alleged, was done without his father's knowledge or consent and was in breach of the Council's written and verbal agreements. The installation of the pipe had been supervised by one of the Council engineers (Mr B).

The complainant claimed that, shortly after the Council had secured the Wayleave Agreement from his father, three sites were purchased across the road from his father's land. These sites were purchased by the Council Engineer (Mr A) who had negotiated the Wayleave Agreement with his father, another Council Engineer (Mr C) and a builder. Three houses were built on these sites. The complainant alleged that, contrary to the undertaking given to him these three houses were connected to the pipe.

The complainant added that, on 1 August 1995, the builder of two of these houses was granted planning permission for the construction of 65 houses on the same lands. One of the conditions of that grant of planning permission required the developer to submit a Wayleave Agreement to the Council for agreement, prior to commencement of the housing development. The complainant said that the builder had been in negotiations with his father regarding a Wayleave Agreement to facilitate the laying of a surface water drainage pipe across his father's land. However, in October 1995 and without consultation with his father, the Council waived the requirement imposed upon the builder under the relevant planning permission.

The complainant maintained that, had his father known that the Council were going to allow a housing development of 65 houses to connect into the pipe, he would not have agreed the original Wayleave on the terms negotiated.

While I do not propose to publish the full details of my investigation here, my main findings and recommendations were as follows:

• the negotiations surrounding the Wayleave Agreement, which were conducted between Mr A on behalf of the Council, and the complainant's father were carried out in good faith and there was a clear written commitment that the pipe, once installed, would be 225mm (9 inches) in diameter;
• Although the negotiations were carried out in good faith the complainant’s father remained of the view that the pipe was intended to cater for surface water run off from the public road only and he accepted the compensation of £1,000 (€1,269.74) on this basis;
• by sending drawings to the local engineer some months earlier specifying a 225mm (9 inch) pipe, the Council clearly intended to install the 225mm (9 inch) pipe, even prior to entering into formal negotiations with the complainant's father;
• the Council's Mr B amended the drawings and revised the size of the pipe but did not consult properly with Mr A, about his proposal to install the larger, 300mm, (12 inch) diameter pipe, notwithstanding the fact that Mr A had negotiated the specific details of the Wayleave Agreement with the complainant's father;
• Mr B consulted with his superior Mr C who, without consulting Mr A, indicated that he had no objection to the installation of the larger size pipe;
• a day after the Wayleave Agreement stipulating the 225mm (9 inch) pipe was signed, Mr B contacted his suppliers, sought and received a quotation for the delivery of 300mm (12 inch) pipe; he was already aware of the corresponding quotation for 250 mm (9 inch) pipes;
• the Council did not act properly - legally or administratively - in laying the larger 300mm (12 inch) pipe without the knowledge or consent of the complainant's father;
• Mr B reassured the complainant's father that the pipe, once installed, would be used only for surface water drainage although he did not apprise him of the size of the pipe;
• the motivation of the complainant's father in drawing my attention to the fact that Mr C and Mr A had their private dwellings connected to the pipe under his land, was not out of concern about the particular connections but rather to gain advantage by embarrassing the officials concerned;
• while there is no evidence of impropriety on the part of the Council officials concerned in discharging the surface water from their own private houses through the Council's pipe on the complainant's father's land, the sequence of events, as outlined above, gives rise to serious concern. In particular, the Council did not have in place adequate administrative procedures for handling infrastructure projects which would allow it to withstand or refute an allegation, however remote, of a potential or perceived conflict of interest between the Council's staff, developers and third parties;
• there is no evidence to suggest that Mr B's decision to increase the size of the pipe was taken for other than technical and public interest reasons or was in anticipation of subsequent events;
• the Council did not go through the proper planning process before varying the condition in the grant of planning permission which referred to the Wayleave Agreement;
• the Council, by waiving this condition in the grant of planning permission, not only undermined the complainant's father's negotiating position with the developer, but adversely affected him by denying him the opportunity that otherwise should have arisen had the planning process been followed correctly, to appeal the matter to An Bord Pleanála;
• despite seeking written clarification from the Council on three occasions, the complainant's father only became aware of the Council's written decision to waive the relevant condition in the grant of planning permission after he had initiated legal proceedings against the developer and this resulted in his being adversely affected by having to incur legal and other expenses.

Based on my findings, I recommended that compensation of £30,000 (€38,094.14) be paid by the Council to the complainant. This included redress for a breach of the terms of the Wayleave Agreement, out of pocket expenses, legal fees, distress and inconvenience, and breaches of proper administrative and planning procedures. I also recommended that the Council put in place appropriate administrative procedures / guidelines for staff who are dealing with planning and infrastructure projects where a potential exists, however remote, of a potential or perceived conflict of interest. The Council accepted my recommendations.

I wish to highlight my concerns about the potential conflict of interest considerations which this case has exposed. The complainant made an allegation that senior Council personnel may have used their official position to their own advantage. While I found no evidence of impropriety on the part of the officials concerned, this case illustrates how important it is for public officials to take great care to ensure that they are seen to behave ethically and correctly in all matters where they may stand to benefit from decisions which they have taken or are in a position to influence in the course of their work.

It is also important for local authorities to have in place procedures which safeguard against the possibility of a conflict of interest between their staff and other parties. On this point, I note that Part VII of the Planning and Development Act, 2000 details the requirements on members and employees of planning authorities in relation to interests they have, in particular in land, which may have implications for their work. I also note that ethical standards for members and employees of local authorities are being considered in the context of the review of local government legislation, which is currently being undertaken by the Department of the Environment and Local Government. New procedures are necessary to protect the general public and, equally importantly, Council staff members.

I sent a copy of my investigation report to the Department of the Environment and Local Government and I invited its comments or suggestions in relation to the issues which arose in this case. I await the Department's response.

Mayo County Council

Entitlements Under a Mortgage Protection Policy

In this case involving Mayo County Council the complainant had taken out a mortgage in 1986 with the Council which included a mortgage protection element.

She stopped working in September 1989 on health grounds and began to draw disability benefit. In 1991 she asked the Council about her mortgage protection entitlements. In April 1991 she received a letter from the Council which simply confirmed that she had mortgage protection and that it covered her as the principal earner. It did not clarify her precise entitlements. She claimed she called to the Council after she got the letter and was told by an official that she was covered for death benefit only and not for disability benefit. Due to her financial situation she began falling behind in her loan repayments. At one stage she was threatened with legal proceedings by the Council. In 1994 she received a general information notice from the Council about mortgage protection, and it was only then that she realised that she had disability cover as part of her mortgage protection. The notice issued because all local authorities were instructed by the Mortgage Protection Committee in May 1994 to notify all of their mortgage holders about their mortgage protection entitlements. Local authorities were informed that:

"It is vitally important that all borrowers are aware of the terms of the scheme and that local authorities can show that this information has been furnished to them. Presently there are a number of cases subject to legal proceedings where borrowers claim they were not aware of their entitlements and where insurers are refusing to accept their claims due to delay in notification."

The notice also advised local authorities to put a system in place e.g. keep written receipts, to prove that they had given details of the mortgage protection scheme in each individual case. A further general warning notice on the same matter was issued by the Housing Finance Agency in 1996.

Having become aware of her full entitlements as a result of the 1994 notice, she then pursued an insurance claim. Through the intervention of the Insurance Ombudsman she succeeded in her claim under her mortgage protection policy but this was only admitted from September 1994 because of the delay in submitting the claim. In her report on the matter the Insurance Ombudsman pointed out that her jurisdiction confined her to examining the actions of the insurance company only and that she could not comment on the alleged actions or omissions of other parties such as the local authority.

I examined the Council's files and also asked it to outline its procedures in relation to the notification of mortgage protection entitlements. The Council indicated that, generally speaking, mortgage applicants sign up with the Council when they take out a mortgage and it is the Council which is obliged to give them the relevant forms and documentation on the mortgage and the mortgage protection scheme. The Council said that applicants are advised verbally that mortgage protection covers their mortgage in the event of death or serious disability. On loan approval, a Certificate of Insurance is issued together with a principal earner Declaration Form which must be completed before the payment of any loan. If a claim does arise, it is the applicant who must make a claim direct to the insurance company and in the event of disability, the insurance company makes the decision regarding the specific disability entitlements.

The crucial aspect of the complaint was whether the complainant had received the Certificate of Insurance, which set out her full mortgage protection entitlements, when she first took out her mortgage. The complainant was adamant that she had not received a copy of the Certificate of Insurance or the Declaration Form in 1986. She said she recalled visiting the Council's offices and also the Council's solicitor's office in 1986 to sign various forms but she was not given either the Declaration Form or the Certificate of Insurance to take away. She said she was not shown a Certificate of Insurance during her visit. It was beyond dispute that she had signed the Declaration Form in 1986 as it was on the Council's file but I noted that there was no "date received" stamp on it which lent credence to the complainant's claim that it had not been sent to her in the post.

As a result of my examination I was satisfied that a number of matters were beyond dispute:

• the Council had a responsibility to inform mortgagees of their full mortgage protection entitlements;
• over the years and, at least up to 1996, there were problems generally within local authorities in relation to the administrative systems in place to inform mortgagees of their mortgage protection entitlements;
• the complainant had contacts with the Council in 1986 and 1991 in relation to her mortgage protection and was not given adequate information about it on either occasion;
• the Council was aware that she was having difficulties meeting her arrears arising from her circumstances;
• the complainant suffered considerable stress, inconvenience and financial loss arising from the delay in becoming aware of her entitlements;
• the complainant did not become aware of her full mortgage protection entitlements until 1994.

While it had not been possible to verify by means of documentary evidence whether the Certificate of Insurance did in fact issue in 1986, I was aware that the courts have held in favour of complainants where the local authority could not provide such documentary proof. Based on the established facts and on the balance of probabilities, I took the view that there were reasonable grounds for asking the Council to offer redress to the complainant. Having reviewed its position the Council agreed to provide £6,000 (€7,618.43) in compensation which was acceptable to me and the complainant.

Wexford Corporation

Refuse Collection Charges

A man who had cancelled his refuse collection service complained in 1998 that he continued to receive bills. When Wexford Corporation checked its financial records it found that his account had been cleared in October, 1996 and should have been designated as a null account for the following years. Due to an oversight, the account was not nullified and bills continued to issue to the complainant until 1998. When I drew the Corporation's attention to the situation, it arranged to have the account nullified and it also apologised to the complainant. I was satisfied that this was a reasonable response.

The complainant contacted my Office again in 1999. He informed me that he had received a further demand to pay the refuse collection charge. I was surprised at this situation so I contacted the Corporation again. I also suggested that it consider an appropriate form of redress in view of the inconvenience caused to the complainant. In response, the Corporation issued a further apology to the complainant and, as a gesture of goodwill, forwarded a cheque for £50 (€63.49) to compensate him for the continued inconvenience. The Corporation also advised my Office that his account has been inspected and that it was satisfied that the account had been nullified.

I was even more surprised when the complainant contacted my Office again in 2000. He told me that, notwithstanding the Corporation's earlier commitments, a further demand for the refuse collection charge issued to him in July 2000.

Having regard to the history of this case, I asked the Corporation to consider the question of further redress. In reply, the Corporation agreed to apologise again and to offer a payment of £100 (€126.97) to the complainant. This brought the total redress offered to £150 (€190.46). This should have been a simple case to resolve, however, because of a basic administrative oversight the Corporation found itself, on two occasions, in a situation of having to offer an apology and compensation.

Kildare County Council

Procedures for Repossession of Houses

In 1998, a tenant of Kildare County Council was admitted to hospital. During her two week stay in hospital she became very worried about her house as she was in substantial arrears of rent and the house had been damaged during a break-in. She complained to me stating that while she was in hospital, she contacted the Council to say that she was not able to cope with the house. The Council then repossessed the house and boarded it up for security reasons. This left the complainant homeless. The Council told me that the complainant visited its offices in July 1998 and indicated that she wished to surrender tenancy of her house. She was advised that she should not give up her house until she was absolutely sure about the consequences. She was also told that if she applied for rehousing to the Council, the fact that she had handed back a Council house would have to be taken into account.

Shortly afterwards, the Council considered the complainant for a swop of tenancies with another Council tenant who was living in overcrowded conditions in a one bedroom flat. However, the Council took the view that, because the complainant was in arrears of rent, totalling £941 (€1,194.82), and had vacated her house, it was not prepared to grant the house swop. Subsequently, the complainant made a new application for housing to the Council. The Council informed me that her housing application could not be approved because she was not eligible for re-appointment as tenant to her former house, a 3-bedroomed house, on the basis that, as a single person, that house was more suitable for a family.

At the outset, I had some concerns about the Council's actions in taking possession of a house from one of its own tenants without her written consent. It was not clear to me when or how the Council took possession of the house. However, it was obvious that at no time did she give written consent, in the form of a Vacancy / Closure Order, to the Council, nor, it appears, was she asked to sign any. This was a serious administrative error by the Council.

I was concerned that the Council had taken possession of her home even though:

• she had recently been discharged from the acute psychiatric unit of a hospital;
• the Health Board had offered to carry out repairs to the house;
• she had been reducing the rent arrears on her house from £1,900 (€2,412.50) in 1991 to £940 (€1,193.55) in September 1998;
• she had not formally surrendered the house;
• the Council had not formally taken possession of it.

The primary question which arose was whether, at the time the complainant contacted the Council to surrender her house by word of mouth, she was capable, due to her illness, of understanding the implications of her actions. I was conscious that the Council knew of her temporary illness, or ought to have known, and, therefore, the Council should have taken more active steps to establish her actual state of health when she approached the Council and before it took possession of her house. I asked the Council to review the case and to consider the question of offering some form of redress to the complainant for the distress caused to her during the period in question.

In response the Council advised me that it had reviewed its procedures for taking possession of houses which have been handed back by former tenants. The Council also allocated a one bedroom flat to the complainant and agreed to give her £300 (€380.92) in compensation for the alleged loss of some of her possessions during the period when it repossessed her former house.

Both the complainant and I were satisfied with the Council's offer.

Southern Health Board

Hospital Charges

I received a complaint from an English national concerning the payment of private charges in respect of in - patient services at Tralee General Hospital. The complaint arose when her husband was admitted to Tralee General Hospital with suspected meningitis. The complainant furnished all relevant information concerning her husband on admission and subsequently received an invoice from the hospital in the amount of £903 (€1,164.57). She had been unaware that her husband had been treated in a private room during his hospitalisation. The hospital indicated that, on admission, the complainant had opted for a private room. However, she was adamant that she had never been told at any stage that private treatment was being provided nor was she presented with a schedule of charges for private treatment. However, a few days after the admission she was asked to sign a form and did so on the understanding that it was required to verify that her husband had adequate insurance to cover his treatment. The section marked “I wish to be treated in a private capacity under my health insurance” was ticked, but a section headed “Private Patients” was unmarked. This section commits the patient to liability for all consultants' fees and charges for private or semiprivate accommodation.

The Southern Health Board's interpretation of the form completed by the complainant was that she was opting on her husband's behalf for private care. However, given the circumstances of the case, the Board agreed to accept an amount of £531 (€674.23) which had been subsequently paid by an insurance company in full settlement of the invoice. I concluded that the confusion in this case had been caused by the documentation in use at the time which outlined the charges and the options for those availing of private treatment. I confirmed that the relevant form was subsequently revised with a view to making it more transparent and understandable.

Mid-Western Health Board

Poor Standard of Care for Nursing Home Resident

The Nursing Homes (Care and Welfare) Regulations, 1993 includes provisions which place an obligation on health boards to investigate complaints against private nursing homes. A health board must investigate the complaint and, where it is upheld, may issue a direction to the nursing home (which must be complied with) requiring specified action to be taken. While my remit does not allow me to investigate the actions of a private nursing home, I may examine the manner in which an investigation was carried out by a health board.

I received a complaint from a woman about the inadequacy of an investigation conducted by the Mid-Western Health Board into the care afforded to her late mother while resident in a nursing home in the weeks prior to her death. She further asserted that the conclusions drawn by the Board, together with a statement of the outcome which had issued to her, were inconsistent with the facts ascertained. She was unhappy with the treatment of her allegation that a catheter which was attached to her mother had been kinked over a forty-eight hour period prior to her death. She also rejected a claim made by the Board's investigation team that her mother suffered from Alzheimer's Disease.

The background to the case was as follows. Nursing home staff had informed the family that her mother was very ill, was not passing urine, that this indicated her kidneys were not functioning and she could not be expected to live very long. On the following day, in the course of a visit, the complainant discovered that her mother was still not passing urine. She subsequently asked her mother's GP to visit her. The complainant said that she was advised by telephone that evening, by a member of staff of the nursing home, that it had been discovered that the urine bag was kinked and when replaced her mother passed a significant amount of urine. She claimed that the following day she was advised by a staff member that such difficulty with the bag was quite normal.

The Board investigated the complaint and advised the complainant that at the time of her mother's death she had been suffering from Alzheimer's Disease and had extensive contractures and bedsores. They said she had been turned every two hours and was given a satisfactory standard of nursing care. The Board said that the nursing report generally indicated the amount of urine draining from the catheter and when it was replaced. It also stated that it was difficult to investigate the complaint as it was retrospective and circumstantial and that in order to investigate it was necessary to have received a complaint at the time of the incident.

At a subsequent meeting with the complainant and her son, officials of the Board said that the nursing report contained no evidence of kinking, but that there was a record of the catheter being changed with a subsequent output of 500 mls of urine. The complainant subsequently wrote to the Board indicating she was unhappy with the extent to which the blocked catheter incident was investigated and maintained that the conclusions were inconsistent with what she had observed. She also claimed that relevant persons involved had not been interviewed, and that the claim that her mother had Alzheimer's Disease was factually incorrect. The Board replied and rejected her claims.

Following my examination of the case, I gave the Board a report containing my preliminary findings. It was my view that the there was prima facie evidence that the investigation carried out by the Board was inadequate and thus contrary to fair or sound administration. The Board replied stating that it accepted my observations in relation to the investigation and had arranged for an inspection to be carried out at the nursing home by a team from another Community Care Area.

The Inspection Team's report showed that it was satisfied that the catheter was blocked at the time it was changed and had been kinked earlier in the night. With regard to the diagnosis of Alzheimer's Disease the team found no documentary evidence to support this diagnosis. The Board subsequently apologised to the complainant for the error and any distress caused. The Investigation Team also made a number of recommendations requiring the nursing home to draw up written policies and procedures in relation to catheter management, the prevention of pressure sores, and the administration of medical preparations.

It was also clear that the evidence, upon which the Investigation Team based its conclusions, was readily available to those involved in the first investigation. I asked the Board to consider redress, in the form of an ex gratia payment and it agreed to make a payment of £750 (€952.30) to the complainant. This amount was designed to ensure that the Board provided reasonable redress to reflect the stress, anxiety, frustration, and inconvenience the complainant suffered as a result of the deficiencies of its investigation.

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