Berkshire Healthcare NHS Foundation Trust (17 013 323a)

Category : Health > Mental health services

Decision : Not upheld

Decision date : 29 Oct 2018

The Ombudsman's final decision:

Summary: Mrs Q complains about a lack of support from the Council and the Trust over her mother’s health and social care needs in 2016/17. There was no significant fault by the Trust, but the Council failed to fulfil all its duties under the Care Act 2014 and the Mental Health Act 2005. This caused injustice as it delayed taking action to meet the mother’s care needs. The Council needs to apologise, pay financial redress and consider what action to take to prevent similar problems happening again.

The complaint

  1. The complainant, whom I shall refer to as Mrs Q, complains:
    • the Council delayed in taking steps to meet her mother’s needs following a referral in August 2016;
    • there were flaws in the Trust’s care and treatment of her mother, in particular:
        1. lack of a system to ensure her mother could access medication while living on her own;
        2. lack of support to Mrs Q and her mother between April and July 2017 including no Community Psychiatric Nurse (CPN) for a period;
        3. flaws in communication with family/other professionals;
    • the Council and the Trust referring Mrs Q to each other rather than resolving situations.

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The Ombudsmen’s role and powers

  1. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
  2. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  3. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)

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How I considered this complaint

  1. In reaching my view I have:
    • discussed the complaint with Mrs Q and considered the information she has provided;
    • considered the documents and comments provided by Berkshire Healthcare NHS Foundation Trust and Royal Borough of Windsor and Maidenhead Council; and
    • taken account of the comments received from Mrs Q, the Trust and the Council on a draft of this statement.

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What I found

  1. Mrs Q’s mother, Mrs W, has dementia and uses a wheelchair. Mrs Q and her brother have power of attorney for property and financial affairs.

2016

  1. In August 2016 Mrs W was living on her own with carers visiting but she often refused their help. She made frequent calls to her daughter, who lives in another part of the country, due to her memory problems. On 17 August Mrs Q reported concerns about her mother’s ability to cope to the Council, which said it would assess her needs.
  2. Mrs Q called the Council on 30 August to chase the assessment. The Council said it would take 6-8 weeks for an assessment. It advised Mrs Q to arrange extra care for her mother, until it assessed her. Its records say Mrs W was not yet on the list for an assessment. It added her name to the list and noted the need for a “faster allocation”. The Council told Mrs Q her mother would have to sell her home to pay for care if she moved into a care home.
  3. On 12 September the Council arranged to review Mrs W’s needs on 22 September, the earliest date Mrs Q could be there.
  4. Mrs Q sent the Council a document setting out the concerns about her mother. This says Mrs W’s wheelchair did not easily fit the bathroom and she had no way to bathe. It says Mrs W needed a capacity assessment to find out whether she could decide where to live. It says they needed to know whether Mrs W could stay in her own home with an increased package of care or should move to residential accommodation. It says Mrs W received visits from:
    • a cleaner once a week;
    • a personal assistant three times a week; and
    • a care agency three times a week, but Mrs W sometimes turned its carers away as she did not accept she had any need for care.
  5. Mrs Q’s document says Mrs W would be funding her own care but her family needed to know how to get the care she needed. It says Mrs W may be able to move to extra care housing, but her dementia may be too advanced for this, or she could move to a care home.
  6. The Council assessed Mrs W’s needs on 22 September. The assessment revealed some significant differences between Mrs W’s views of her circumstances and those of her Social Worker. Mrs W did not think she had any care needs but the Social Worker thought she needed support four times a day. She found Mrs W could not achieve these outcomes:
    • manage and maintain nutrition;
    • maintain personal hygiene;
    • maintain a habitable home;
    • make use of necessary facilities/services in the community.
  7. It appears this meant Mrs W had eligible care needs, although the assessment does not say this. Nor does it address the question of whether not achieving these outcomes would have a significant impact on her wellbeing.
  8. The assessment says Mrs W lacked the capacity to decide where she should live. However, it says she did not meet the criteria for residential care as this would be too restrictive and other options such as an increased care package and extra care housing should be considered first. Mrs W turned down the offer of visiting a day centre.
  9. The Council’s records say Mrs Q would increase her mother’s privately arranged care to four calls a day and arrange a taster session at a day centre. The records say the Council would book two weeks of respite in an extra care housing flat with a view to offering a permanent flat. The Council agreed to refer Mrs W for a physiotherapy visit.
  10. On 23 September the Council booked a placement in the respite flat from 29 September to 13 October. When it told Mrs Q about the booking it said her mother could refuse the placement and return home any time she wanted. Mrs Q asked the Council to delay the respite placement so they could prepare her mother for it.
  11. On 10 October Mrs Q told the Council her mother needed the support of a professional to explain about the extra care housing. She said the extra care housing did not appear to know much about her mother and her needs.
  12. When Mrs Q took her mother to see the extra care housing she refused to go in.
  13. On 21 October Mrs W told a Physiotherapist she did not need physiotherapy. The Council noted Mrs W had consented to a Physiotherapist visiting so the visit should go ahead, having first consulted her family.
  14. Mrs W’s Social Worker left on 28 October. Before leaving she told Mrs Q extra care housing would be ideal for Mrs W but she could also be cared for at home. She said:
    • Mrs W would not be eligible for a placement in a care home, but as a self-funder they could explore that with her;
    • the respite flat should be available in a month;
    • Mrs W would need patience and encouragement to accept change;
    • she had asked the Physiotherapist to get in contact to arrange a visit.

She referred Mrs Q to charities which could provide advice on communicating with people with dementia.

  1. In November Mrs Q told the Council her mother was now refusing all care from the care agency. She said her mother was not safe on her own at home. She told a Social Worker her mother’s dementia was getting worse.
  2. The Social Worker visited Mrs W on 16 November. After the visit he wrote to Mrs Q. He said Mrs W agreed to meals on wheels and help during the day. He said she would benefit from an occupational therapy assessment and an alternative alarm. He said he would research assistive technology to keep Mrs W safe at home. Mrs Q asked for the contact details for meals on wheels.
  3. Mrs Q contacted the Council again on 30 November. The Council noted that, if they were to discuss extra care housing with Mrs W, it would be helpful for Mrs Q to be there. When Mrs Q spoke to another Social Worker she said she would apply for meals on wheels. She said assistive technology in the kitchen would be helpful, but had concerns about cost. The Social Worker noted an occupational therapy assessment may be helpful, given Mrs W’s difficulties accessing the bathroom. The Council added her name to the waiting list for an assessment. It also asked a Social Worker to assess Mrs W, noting she may be willing to try out extra care housing.
  4. After speaking to Mrs Q, the Social Worker visited Mrs W on 22 December with a colleague. She noted Mrs W was unclean and claimed to be more able than she was. Afterwards, the Social Worker’s plan was to:
    • speak to Mrs Q;
    • gradually increase the current care package;
    • rule out extra care housing, as Mrs W’s dementia was “too advanced”.
  5. The Social Worker spoke to Mrs W about increasing the number of visits by carers and staying temporarily in extra care accommodation.

2017

  1. On 4 January 2017 Mrs Q told the Social Worker her mother had declined significantly over the past few months. She said her mother had twice refused the extra support they had put in place over the past week. She asked what they should do next, other than leave her mother to decline, answer her calls, let the carers visit and alert the emergency services if her mother was in a dangerous state.
  2. On 5 January the Social Worker told Mrs Q increasing her mother’s care package was the only way to safeguard her. She said with dementia it was not possible to predict what to expect so they should try increasing the visits for at least six weeks. She told Mrs Q the Council was limited in what it could offer to self-funders, but could always provide information and advice. She understood there would be a review on 21 February (by the care agency). She said if Mrs W did not agree to the increase in calls they would have to consider a residential placement. She said she would assess Mrs W’s capacity to decide where her care needs should be met and hold a best interest meeting with everyone involved with her mother’s care. She said they were not leaving Mrs W to decline but trying to preserve her dignity and prevent a safeguarding incident. She said she would refer Mrs W to the Community Mental Health Team (which she did).
  3. The care agency visiting Mrs W told the Council she may not have had a wash since September, as she refused help from its carers, family and the personal assistant. It said the plan was to build trust so carers could actually help Mrs W. It said three calls a day were unlikely to work but it would soon be visiting five days a week. Without accessible bathing facilities the only alternative would be a strip wash.
  4. On 13 January the care agency told the Council Mrs W threatened to throw hot coffee over a carer and hit the carer when she tried to prevent her from doing this. This followed a decision to be firmer with Mrs W. The care agency agreed to be less firm with Mrs W. The Council said it would refer Mrs W for mental health support and ask her GP to visit.
  5. One of the Trust’s CPNs visited Mrs W in January 2017. On 6 February the CPN told the Social Worker Mrs W’s needs were mainly social care needs. When the Social Worker said refusing care and aggression were not social care needs, they agreed to arrange a joint visit with the care agency.
  6. At the joint visit Mrs W denied having care needs, became upset and asked them all to leave. The Social Worker noted that, depending on the outcome of the care agency’s review of Mrs W’s support plan, she would complete a mental capacity assessment and hold a best interest meeting (to decide about a residential placement) and the CPN would report back to Mrs W’s son.
  7. Mrs Q and her brother met the Social Worker on 21 February. The brother said a Consultant Psychiatrist could not recommend any medication while Mrs W remained at home with minimal care in place. She needed to be in a settled environment where any changes in her condition could be reported immediately. The CPN confirmed this was the case and said Mrs W would need to be in residential accommodation.
  8. On 27 February the Council assessed Mrs W’s mental capacity to decide where she would like to receive care and support. It found she did not have the capacity to make that decision.
  9. On 13 March Mrs Q told the Council she was moving her mother to a care home.
  10. On 21 March the CPN told the Social Worker Mrs W was unlikely to agree to take medication (i.e. a sedative) to facilitate a move to a care home. However, he said this should be considered as part of a best interest decision.
  11. On 28 March the Council held a meeting to decide whether it was in Mrs W’s best interests to be covertly medicated with a sedative to help move her to a care home. The Council decided it was in her best interests to start taking the sedative a day before the move to residential care and for her son to review the dose within 14 days of admission.
  12. On 31 March the CPN told the Social Worker Mrs W was becoming more vulnerable (hiding food which she would eat days later and was sick most days). The Social Worker said they had considered an application to the Court of Protection over Mrs W. However, she said without her “difficult behaviours” and resistance to care, she could remain at home. She said the behaviour did not relate to a social care need. The CPN said Mrs W did not meet the criteria to be sectioned under the Mental Health Act 1983. The Social Worker said the family may need to take legal advice if what they were asking for was beyond the remit of the Council and the Trust.
  13. On 3 April the CPN told the Social Worker Mrs W’s GP would have to prescribe the sedative, as she lived at home. He said the GP should have been invited to the best interests meeting.
  14. On 5 April a Nursing Home completed a pre-admission assessment for Mrs W. It told the Council it had no vacancies on its dementia unit and had concerns about accommodating Mrs W temporarily in its non-secure nursing unit. The CPN agreed to speak to Mrs W’s GP about the difficulties in arranging a placement for her.
  15. On 12 April the CPN spoke to Mrs W’s GP. He said the Trust accepted Mrs W had mental health issues and would work with her when it could engage with her. He told the Social Worker the GP thought covert medication would be best after Mrs W moved to a care home. He said the GP would speak to Mrs W’s son.
  16. Mrs Q took her mother to the Nursing Home on 19 April. After lunch Mrs W said she wanted to go home and would not agree to stay, even for a few days.
  17. On 24 April an Approved Mental Health Professional (AMHP) visited Mrs W with the CPN. The AMHP completed an assessment under the Mental Health Act 1983. The assessment says Mrs W was neglecting her diet and care, and could not self-care. The outcome of the assessment was to make an application to the Court of Protection. It says admission to hospital had not been recommended and community options were not present for her. It says the future care plan was for:
    • the Council to apply to the Court of Protection for an Order determining what should happen regarding Mrs W’s care and support needs;
    • the Community Mental Health Team to support the Council during the period of transition to monitor if treatment is needed relating to her mental disorder;
    • to consider care support needs given the pressure experienced by Mrs Q and her brother.
  18. The AMHP told the Council Mrs W needed to be in a place of safety (i.e. a care home) but the problem was getting her there. She said a Deprivation of Liberty Safeguard (DOLS) and application to the Court of Protection would probably be needed further down the line. Mrs W had received a letter from her GP encouraging her to consider residential care.
  19. A Consultant Psychiatrist visited Mrs W on 25 April. Afterwards, she wrote to Mrs W’s GP explaining her circumstances on her visit and setting out her findings. Mrs W scored 22 out of 30 in a Mini-Mental State Examination (suggesting mild dementia), two less than in May 2016. Although Mrs W believed her parents came to stay and her mother slept upstairs, this did not disturb her and she did not act on this. She had no delirium or hallucinations. The only diagnosis was Alzheimer’s Disease. The Consultant Psychiatrist did not identify the need for regular treatment with psychotropic medication or admission to psychiatric hospital for treatment of her mental illness. She said her mental state may need reassessing when in a care home to cope with distress. The letter was copied to Mrs W, the Council and the CPN.
  20. On 28 April Mrs Q wrote to the Social Worker. She said she had problems getting feedback on the Consultant Psychiatrist’s visit but the Trust had said the notes of the visit said Mrs W’s problems were not a mental health issue. Mrs Q said her mother had tried calling her and her brother 128 times in a week.
  21. The CPN told the Social Worker the Mental Health Team for Older People was discharging Mrs W as her condition was “chronic and not acute and her presentation will not change”. He said they would prepare the necessary reports for the Court of Protection.
  22. The AMHP told the Social Worker Mrs W scored 22 out of 30 when the Consultant Psychiatrist did a Mini-Mental State Examination. She said the Consultant Psychiatrist did not think Mrs W needed to go into hospital. But he thought she should be placed in a care home using the Mental Capacity Act and an application to the Court of Protection.
  23. On 2 May the Council spoke to Mrs W’s GP. The GP noted the difficulties a care home would face, due to her non-compliance, but said it was the right setting and he would support an application to the Court of Protection. The Council’s Legal Team advised the Social Worker about the need for a mental capacity assessment in a different format and another best interest form for an application to the Court of Protection, identifying all the less restrictive options and everyone’s views. The Social Worker told Mrs Q and her brother about this and asked them for their views. She also asked the CPN and the GP to provide their views.
  24. The Social Worker visited Mrs W on 8 May to assess her capacity (to decide where her care needs should be met) for an application to the Court of Protection.
  25. On 11 May the CPN told Mrs Q all the papers asked for by the Social Worker had been sent to the Social Worker.
  26. On 16 May, following a telephone call from Mrs Q, the CPN called the Social Worker saying Mrs W’s case needed prioritising as she was running unnecessary risks at home.
  27. On 21 May Mrs Q told the Social Worker her brother would be their mother’s Litigation Friend in the court proceedings if they took place before 22 July, but she would be after 22 July.
  28. Around the end of May the CPN left the Trust. The Trust assigned Mrs W’s case to another CPN on 8 June.
  29. On 12 June the Council sent an application to the Court of Protection, seeking approval to move Mrs W to the Nursing Home.
  30. The Social Worker left the team on 22 June. After Mrs Q called the Council on 30 June it assigned Mrs W’s case to another Social Worker.
  31. On 13 July the Social Worker called Mrs W to arrange a visit but Mrs W said she needed to speak to her daughter first. Mrs Q said she was happy for a joint assessment to go ahead with the Trust’s Mental Health Team. The Social Worker said her mother was on the waiting list for the Nursing Home, awaiting a decision by the Court of Protection.
  32. On 17 July a Senior Social Worker asked the Council’s Legal Team if the Court of Protection could be asked to give greater priority to Mrs W’s case as she was at “massive risk” at home. When the Legal Team replied on 1 August it noted the application had not said the matter was urgent. It asked what had changed and said to provide a copy of the risk assessment saying Mrs W was at “massive risk”. The Legal Team also forwarded an e-mail sent to the previous Social Worker asking for more information in support of the application to the Court of Protection.
  33. On 18 July the Social Worker and the CPN visited Mrs W. She was asleep in dirty clothes and in an armchair when they arrived. She denied having any care needs. The CPN said she would return the next day to do another Mini-Mental State Examination, as they thought her score was unlikely to be as high as in April.
  34. When the CPN completed a Mini-Mental State Examination with Mrs W it gave a score of 21 out of 30 (mild dementia).
  35. When the CPN visited Mrs W on 27 July she said she wanted a bath-chair and some help with bathing. She said Mrs Q was going to take her to look at care homes.
  36. On 1 August the Legal Team wrote to the Court of Protection to ask when the case would be considered.
  37. On 2 August the CPN and Social Worker met to agree a transfer plan for Mrs W’s move to a care home and complete a risk assessment.
  38. On 3 August the Court of Protection granted permission for the Council to make its application for Mrs W. The Council’s Legal Team noted that Mrs W’s son would be away so could not be hr Litigation Fried. It also noted Mrs Q’s request for the Council’s legal Team to be her Litigation Friend. It said this would not be possible as it was representing the Council. It said the Official Solicitor would be asked to be Mrs W’s Litigation Friend but would need to be satisfied no one else could do this. Mrs Q told the Social Worker she was willing to be her mother’s Litigation Friend and the Social Worker passed this information on to the Legal Team.
  39. On 10 August Mrs Q told the Council she wanted to attend the court proceedings as a family member, rather than as her mother’s Litigation Friend.
  40. On 15 August the Council “reviewed” Mrs W’s care and support plan. The recommended support timetable refers to residential care with “EMI dementia input”.
  41. On 16 August Mrs Q confirmed she wanted to be her mother’s Litigation Friend as she was concerned about the cost to her mother if the Official Solicitor took on this role. The Council provided her with a copy of the form to make the application.
  42. On 22 August the CPN wrote to Mrs W’s GP. She said Mrs W was due to be moved to a care home by the Court of Protection, which had not yet set a date or identified the care home. She said Mrs W may need a one off prescription of a sedative, which may need to be given covertly, to reduce distress and possible verbal/physical aggression during the move.
  43. On 30 August the Council’s Legal Team noted in an e-mail to the Social Worker that the Court of Protection, following a directions hearing on 18 August, had made an order relating to alternative options. It said the Court may make a final order for a specific care home but could also make a more generic order. If so, this would enable the Council to move Mrs W to another care home if the placement broke down.
  44. Following another hearing on 8 September, the Court of Protection issued the final order for Mrs W to be placed in a care home.
  45. Mrs W moved to the care home on 14 September.
  46. The Trust responded to Mrs Q’s complaint on 20 November 2017. It explained that Mrs W had refused a full assessment so it had not been possible to make a firm diagnosis. However, in 2015 it told her over the telephone about a probable diagnosis of Alzheimer’s disease. It said Mrs W refused to take medication, so it had considered covert medication. However, it said this could only be used when properly administered by a responsible person, but the care agency declined to offer this service. It explained that it had not identified the need for Mrs W to be hospitalised for treatment. The Trust apologised for any failure to communicate its decisions to the family.

Were there faults causing injustice?

The Council

  1. The Council failed to complete a proper assessment of Mrs W’s needs. The Care Act 2014 says a needs assessment must include an assessment of:
      1. the impact of the adult’s needs for care and support on their well-being;
      2. the outcomes the adult wishes to achieve in day-to-day life; and
      3. whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.

Mrs W’s assessment does not do this. That was fault by the Council. Nevertheless, it is clear from the assessment that Mrs W had eligible care needs in September 2016.

  1. Under section 18 of the Care Act 2014 there is a duty on councils to produce a care and support plan for anyone with eligible care needs. But the Council never did this. That was also fault.
  2. The Council was at fault over the advice it gave Mrs Q about her mother’s position as a self-funder. At first it said she would have to sell her home if she moved into residential care, although she was eligible for a deferred payment agreement. It also suggested it could only provide information and advice. But Mrs Q was entitled to ask the Council to arrange her mother’s care. This is because the Care & Support Statutory Guidance says:
    • “Local authorities should therefore take steps to make people aware that they have the right to request the local authority to meet their needs, in certain circumstances even when they have resources above the financial limits and would not be entitled to financial support with any charges.”
  3. It seems likely that if the Council had told Mrs Q about this right she would have made use of it, given the difficulties she experienced in meeting her mother’s needs. It also seems likely that, if this had happened, the Council would have recognised sooner the need to make an application to the Court of Protection and identified it as an urgent case from the start.
  4. Mrs Q repeatedly told the Council her mother’s needs were getting worse but it never reassessed them. The only assessment it has been able to provide is from September 2016. That is fault.
  5. The Council was also at fault because it failed to follow the Mental Capacity Act 2005 properly. On 28 October the Council told Mrs Q that, as a self-funder, she could explore the option of a care home with her mother. That was fault by the Council. It had decided in September that Mrs W did not have the capacity to decide where her care needs should be met. As Mrs Q does not have Power of Attorney for health and welfare, the Council needed to arrange a best interests meeting to consider all the options for Mrs W’s care. It did not identify the need to do this until January 2017. However, when it held a best interests meeting it was to decide whether to covertly medicate Mrs W when moving her to a care home. The Council did not correct this error until it started preparing the application to the Court of Protection.
  6. It appears the Council’s faults were largely based on the incorrect view that as a self-funder Mrs W’s family were responsible for sorting everything out. It took several months before the Council recognised the only way of resolving the problems was to apply to the Court of Protection. This is because they could not meet her needs in her own home and they could not make her go to a care home when she did not want to do this. The Council’s faults caused injustice to Mrs Q as they left her trying to resolve problems with her mother’s care which were not within her power to resolve.

The Trust

  1. I have not found fault with the actions of the Trust.
  2. The CPN was actively involved with Mrs W during April 2017. The evidence does not support the claim that Mrs W did not have a CPN between April and July 2017. At the end of April the CPN told the Council the Mental Health Team was discharging Mrs W. However, he confirmed that they would provide any documents needed for an application to the Court of Protection. From that point, the Council was in the lead in making the application. Although the CPN left at the end of May the Trust assigned Mrs W’s case to another CPN on 8 June.
  3. While the possibility of covertly medicating Mrs W was considered by the Trust and discussed with the Council, this was within the context of sedating her to facilitate a move to a care home. When the Consultant Psychiatrist visited in April 2017 she did not identify the need for regular treatment with psychotropic medication or admission to hospital. There is nothing to suggest the decision on medication was influenced by the difficulty of medicating Mrs W when she was living in her own home.
  4. The Trust has apologised for any failings in communicating with Mrs W’s family.

The Trust and the Council

  1. I have no reason to doubt Mrs Q’s claim that she was given conflicting information by the Trust and the Council. Their records show there was some debate about whether Mrs W’s refusal of care related to a health or social care need. However, the records also show they worked constructively together to resolve that issue. This resulted in the Council accepting the need to make an application to the Court of Protection.

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Agreed actions

  1. I recommended the Council:
    • within four weeks, writes to Mrs Q apologising for the failings identified in this statement and pays her £1,000 for the distress it has caused and the trouble it has put her to (including the time and trouble involved in pursing her complaint);
    • within eight weeks, considers what action it needs to take to ensure officers are aware of their duties under the Care Act 2014 and the Mental Capacity Act 2005.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation on the basis that:
    • there was no significant fault on the part of the Trust;
    • there was fault on the part of the Council causing avoidable distress, which is an injustice requiring a remedy.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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