Decision : Upheld
Decision date : 30 Nov 2021
The Ombudsman's final decision:
Summary: Mr X complained about delay by the Council when arranging replacement cot sides for his disabled son’s bed and related matters. We have found the Council to be at fault. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mr X for the distress and his time spent dealing with the matter. The Council has already taken action to improve the ordering process that should prevent a similar situation happening again.
- Mr X complains about the Council’s response to his request for replacement cots sides for his disabled son’s bed and related issues. In particular, he complains the following matters:
- Inadequate ordering procedures.
- Poor communication.
- Unclear equipment servicing protocols.
- Failure to provide compensation as promised.
- Mr X says the Council’s poor service has caused considerable distress, worry and inconvenience.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I spoke with Mr X and reviewed the information he provided.
- I made enquiries with the Council and reviewed its response.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
- Mr X has a severely disabled son (Y). Y has cerebral palsy and is reliant on others for his daily care needs. In 2010, the Council arranged for Y to have a specialist profiling bed. This bed has mesh cot sides to prevent Y falling out of bed.
- Because of Y’s involuntary body movement, these mesh sides become damaged quite regularly. Mr X reports that over the years he has encountered problems with getting these replaced. Mr X says the delay is serious because the damaged cot sides could cause Y serious harm should he fall out of bed or get a limb stuck.
- Like many other local authorities, the Council does not provide disability aids itself. Instead, it contracts with a private company (“the Provider”), to do so on its behalf.
- On 15 September 2020, Mr X contacted the Council to order two new cot sides. The order was raised with the Provider that same day. As he had not heard anything from the Provider several days, Mr X chased this up. He was told that because it was a specialist item, it had to be ordered from another supplier. Mr X was frustrated because he knew from his own research that if he ordered the sides directly from the supplier they would arrive within 72 hours.
- Upon pressing the Provider further, Mr X says he was told the order had not yet been placed.
- The Council says the cot sides were received by the Provider within 2-3 weeks but the Provider failed to arrange a delivery slot. Unfortunately, only one cot side had been sent by the supplier.
- On 25 October 2020, Mr X complained to the Council about this delay and poor customer service.
- Three days later, the Provider fitted one mesh side and ordered another one. The Council says it was not told about the missing side and so unaware that the order had been fulfilled it closed the case.
- On 30 October 2020, concerned about Y’s safety, Mr X ordered the other cot side directly from the supplier. He advised the Council of his intention to do so, as he had not received a response from the Council to his complaint.
- On 6 November, the Provider came to fit the missing mesh cot side. Mr X says this was unannounced.
- On 17 November 2020, Mr X privately ordered and paid for cots rails to be supplied and fitted.
- Frustrated by the Council’s lack of response to his complaint, Mr X asked his local councillor (“the Councillor”) to intervene on his behalf, but she did not receive a satisfactory reply and so had to write again.
The Council’s first response
- The Council responded in January 2021. Its main points are summarised below:
- The Council apologised for its initial response. It explained this was based on inaccurate information from the Provider.
- The Provider had already agreed to refund Mr X for the cost of the items he had bought himself. The response also said the Provider had issued compensation for the distress caused by the rails not being fitted.
- The failure to replace both cot sides.
- The failure to respond to requests for reimbursement of his costs.
- The Council ignored health and safety issues.
- The failure to respond to Mr X’s complaint properly.
- The failure to consider wider implications on a family already under strain looking after a severely disabled child.
- The Ombudsman asked the Council to review his complaint again.
The Council’s final response
- The Council did not accept there was fault with its communication and complaint handling, although it apologised for one instance when an officer misunderstood that the Provider would contact Mr X.
- The Provider confirmed there had been a problem with items ordered due to similar items having similar order codes. The Provider had taken action to correct this. The Provider had also identified improvements that could be made with warehouse checking procedures.
- The Council acknowledged there was a slight delay by the Provider in reimbursing Mr X. The Council said this would be resolved.
- The Council apologised for distress caused and reassured Mr X that health and safety matters were taken seriously.
- Dissatisfied with the Council’s final response, Mr X again asked the Ombudsman to investigate. He explained the consequences of the Council’s actions on Y and the family:
- A parent had to sleep in Y’s room on the floor incase he fell out of bed or was trapped. This contributed to ill health due to lack of sleep and aggravation from the Council’s poor responses. They also bought a recliner chair and wall padding as interim solutions.
- There was significant worry as a result of the bed not being subject to annual safety checks. Mr X said the only service was carried out in 2019 at his instigation. Mr X says this was inadequate because the technician just checked the plug, but the moving parts were not checked as he expected they would be.
- Mr X has provided the Ombudsman with detailed submissions about the Council’s poor handing of this matter. For brevity, I have not included all of Mr X’s comments and objections here, but they relate to several areas of complaint that I have summarised at paragraph 1 above. I consider each of these in turn below.
- In reaching my decision about this area of complaint, I have only investigated events from October 2020 onwards. While I understand Mr X says he has experienced many years of poor service I am unable to consider what happened before because Mr X could have complained to us sooner.
- Mr X requested replacement cot sides on 15 October 2020 and the bed was fixed to Mr X’s satisfaction on 17 November 2020. The Provider has said the expected turnaround time is between 2-3 weeks because they are non-stock items and must be ordered from its supplier.
- Mr X’s frustration, in part, lies with the fact he knew he could order the parts with a much faster turnaround time from the Provider’s retail “arm” of its business. Mr X would like the opportunity to do so in future and be reimbursed for his costs. While I understand the benefit of this to Mr X, it is for the Council to determine how it arranges the supply of specialist equipment. The Council, like many others, has decided to do so through contracting with a private company. The Ombudsman does not have any authority to instruct the Council to allow Mr X to order direct from the supplier
- On face value, the delay in this case of approximately two weeks over the expected time, does not appear excessive. But in deciding whether there was fault here, I must also take into consideration the impact this two week delay had on Mr X and the wider family (explained at paragraph 29 above).
- This wider context and the fact the delay was caused by ordering problems (set out below”) leads me to making a finding of fault here.
Inadequate ordering procedures
- Both the Council’s own account of events, and that of Mr X, show there were several problems with the ordering process. For example, the Provider failed to arrange a delivery schedule and checks not being carried out to ensure the order was correct. These mistakes clearly had an impact both on the schedule and inconvenience to Mr X and was fault.
- In response to the complaint, the Provider has identified some areas for improvement and modified its procedures to prevent problems reoccurring. I consider this to be an appropriate response and so there is no further role for the Ombudsman.
- Mr X says the Council’s poor communication in dealing with this matter, made an already difficult situation of worrying about Y’s safety much worse. The Council did not uphold his complaint about this, saying it responded directly to the Councillor instead on some occasions. It also accepted there was one occasion when it assumed incorrectly that the Provider had been in touch with Mr X when it had not.
- From the records I have seen, I am not satisfied the Council’s communication was affected by fault. While Mr X still expected to be contacted when he asked the Councillor to intervene, I do not think it was unreasonable for officers to have expected the Councillor to pass on relevant information to Mr X.
- Overall, while I can see some instances where communication with Mr X could have been better, generally, officers and the Provider responded to Mr X’s enquiries in reasonably good time.
Unclear equipment servicing protocols
- In support of his complaint, Mr X has provided a copy of the specialist bed user manual. In this, the manufacturer recommends it should be serviced annually. Mr X says this has never been done, except in 2019 when he asked to Council to do so. Even when this took place, Mr X says the technician just checked the plug (referred to as a portable appliance test (PAT)).
- As Mr X has explained, the specialist bed has several moving parts and had the potential to cause harm if it is not working properly.
- In response to the Ombudsman’s enquiry about this, the Council explained the Provider is only required to check the mechanics of the bed if there is a reported fault. The annual service comprises of a PAT. The Provider reported Mr X had declined the annual PAT due in December 2020.
- In the absence of any specific requirement for what Mr X would expect to be a full service, I do not find fault. Within the time frame I am investigating, the Council has demonstrated it has fulfilled its servicing obligations.
Failure to provide compensation as promised
- The Council’s first response said that the Provider refunded the money Mr X paid privately for the equipment and had also “issued compensation for distress that was subsequently caused by both rails not being fitted”.
- Mr X says he did not receive any compensation. In response to the Ombudsman’s enquiry about this, the Council explained that, “the confusion has come about the interchangeable use of refund and compensation for any financial outlay Mr X incurred at the time. The Provider believed the matter to be fully resolved at the time of full refund”.
- I disagree with this analysis. The first complaint response clearly refers to compensation for distress caused. It is entirely understandable why Mr X expected to receive an additional payment in addition his outlay of the cost of the equipment. The Council had accepted there were several procedural problems and this had impacted upon the delivery schedule I do not think the wording was in any way ambiguous and it was entirely appropriate for a distress payment to be made. Making such a payment could also have avoided the need for Mr X to pursue his complaint further. This therefore caused Mr X avoidable time and trouble doing so.
- I consider the Council’s failure to honour the payment of compensation for distress here was fault and to remedy the injustice caused to Mr X, I have made a suitable recommendation below in line with the Ombudsman’s Guidance on Remedies.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions/service of the Provider, I made recommendations to the Council.
- The Council has agreed to take the following action within four weeks from the date of my final decision:
- Apologise to Mr X.
- Pay Mr X £250. This is an appropriate amount in recognition of the distress acknowledged in the Council’s first complaint response.
- Pay Mr X an additional £100 in recognition of his time and trouble pursuing his complaint.
- I have completed my investigation. I have found some fault with how the Council dealt with Mr X’s request for specialist equipment and the Council has agreed to a suitable remedy.
Investigator's decision on behalf of the Ombudsman