On 15 June 2023, Human Rights Ombudsman Peter Svetina presented some of the findings of the institution of the Ombudsman connected to the question of re-evaluation of entitlement to personal assistance at the 8th meeting of the Commission for Petitions, Human Rights and Equal Opportunities. “With the Personal Assistance Act, which entered into effect in 2019, Slovenia took an important step towards more active inclusion of people with disabilities in society. Unfortunately, it did not take long before we at the Ombudsman’s office started receiving numerous complaints pertaining primarily to non-recognition of certain costs and lengthy decision-making procedures at the second instance as well as to reducing the scope of the already recognised right to personal assistance without the possibility of using a legal remedy,” initially stated Ombudsman Svetina.

He added that he has several times warned against the problem of ambiguity of the criteria and meeting the criteria for personal assistance, as it is, or is not, evident from the decisions and appended expert opinions. “An unreasoned decision is an infringement of human rights. People cannot make an effective challenge by legal means since they do not know where their positions differ from those of the experts. Regarding the problems with explanations in the decision-making process on the right to personal assistance, the competent ministry accepted our calls, but a solution is not yet in sight,” explained the Human Rights Ombudsman.

In the Ombudsman’s belief, the re-evaluation of the entitlement to personal assistance is just as controversial. “The competent ministry stopped the re-evaluation procedures ex officio, but shortly before the suspension, a list of the names of all those who were directed to the re-evaluation process in the first round was created. We at the Ombudsman’s office dealt primarily with the question of how and, above all, why the list was made, but unfortunately did not get any answers. If this list was indeed made due to larger costs of financing personal assistance than expected, then we can be afraid of the society in which we live. The decision to cut costs on the back of the most vulnerable people is discriminatory, unethical, and undignified,” criticised Svetina.

With the system of personal assistance the state has established a standard that cannot now be ruined and lowered. From the perspective of the Human Rights Ombudsman, what the service is called is completely unimportant, but it is important that all individuals with comparable problems are offered comparable forms of help. “In this respect, we at the Ombudsman’s office will not hold back from initiating the necessary procedures. It is certainly also bad that the regulation of the field is scattered over several or numerous regulations. Thus, we at the Ombudsman’s office expect that after the completed legislative reform a system will be established that will provide all individuals with comparable needs comparable forms of help and will be completely assembled from the Long-Term Care Act and the Personal Assistance Act. These two acts together have to ensure that individuals do not have their rights violated,” added Ombudsman Svetina.

A Leicester care provider has refused to pay a remedy to a former resident following an Ombudsman investigation because he said he has ceased trading.

The Local Government and Social Care Ombudsman investigated the family’s complaint about their father’s stay in the St Bennett’s Care home in the city.

In November 2022 the Ombudsman found owner and sole trader, Mr Mapara, had disposed of the father’s lamp without telling the father or son, failed to keep proper records of how the father wanted to communicate with the son and also failed to involve an independent person to investigate the family’s complaint – and instead communicated with the family himself.

The Ombudsman upheld parts of the family’s complaint and asked Mr Mapara to pay the family £500 for the distress caused.

The Local Government and Social Care Ombudsman investigates unresolved complaints about local authorities and independent care providers across England. It has now issued a rare Adverse Findings Notice against the provider highlighting his unwillingness to provide the remedy set out.

Paul Najsarek, Local Government and Social Care Ombudsman, said:

“The former owner of the home, Mr Mapara has told me he should not have to pay the remedy we have recommended because his company has ceased trading.

“I disagree – Mr Mapara was acting as a sole trader and therefore still has an obligation to provide the remedy we have recommended.

“I am disappointed with Mr Mapara’s response to my investigation and have shared details of my findings with the care regulator, the Care Quality Commission.”

14/06/2023).- A raíz de los graves problemas de convivencia y salud mental que se dieron en el IES La Morería de Mislata, el síndic de greuges de la Comunitat Valenciana, Ángel Luna, reclama a las Consellerias de Educación y Sanidad que elaboren un plan específico contra la alteración de la convivencia y lo doten con financiación suficiente. Un plan que deberá contar con la implicación de todos los agentes claves: desde el alumnado al equipo directivo, pasando por personal docente y no docente, familia, así como la administración local y autonómica.  

Así consta, entre otras recomendaciones, en la resolución de la queja de oficio que el defensor abrió a finales de febrero tras tener conocimiento de la dimisión en bloque del equipo directivo del IES la Morería al sentirse “absolutamente desbordados” por los problemas de salud mental y con 15 menores con el protocolo activado por conductas suicidas o autolesiones.  

Ante la situación descrita en el citado centro y tras el estudio del expediente, Luna también insta a ambas administraciones a que, excepcionalmente y durante lo que resta del presente curso así como para el siguiente, el denominado “Servicio de Respuesta Rápida” de Sanidad esté en contacto permanente con los orientadores del centro.  

En cuanto a las recomendaciones dirigidas a la Conselleria de Sanidad, Luna urge a facilitar el acceso de los alumnos a los servicios profesionales de salud mental y a la realización de programas de intervención temprana en psicosis y de atención al alumnado del centro que presenta problemas de salud mental.   

Además, pide a Sanidad que proporcione formación sobre salud mental y su prevención a los miembros de la comunidad educativa del IES. Cabe destacar que recrimina a esta conselleria la falta de colaboración con el Síndic por no haberle facilitado datos concretos sobre las medidas de intervención implementadas en el citado centro: “Sanidad se limita a indicar de manera genérica los procedimientos establecidos, sin concretar si se ha actuado o se prevé actuar en el centro docente público, bien individualmente o en coordinación con la Conselleria de Educación.”  

En cuanto a la Conselleria de Educación, el Síndic recomienda implementar un proyecto de educación emocional en el IES, con la finalidad de que el alumnado reciba apoyo emocional y psicológico, aprenda a gestionar las emociones y a solucionar los problemas o conflictos que vayan surgiendo. También considera necesario dotar de recursos personales el Programa de Aula Compartida (PAC) y aumentar las horas del Plan de Actuación de Mejora (PAM), así como evaluar las medidas adoptadas y que se estudie reforzar la orientación educativa.  

Del informe que la Conselleria de Educación remitió al Síndic se desprende que la plantilla no se completó hasta el 7 de marzo de 2023 y que, en relación con el curso académico pasado, en este se ha incrementado el número de conductas disruptivas leves y muy graves. Desde el inicio de curso, se han iniciado 13 protocolos por conductas autolíticas e ideación suicida y se han abierto otros dos protocolos más por conductas violentas y agresiones.  

De ahí que el Síndic haga una mención especial al programa “Imprescindibles” de prevención de las conductas autolesivas y el suicidio y para el empoderamiento del alumnado. Luna exige activarlo, en caso de que todavía no se hubiese hecho, e incluirlo para el siguiente curso académico.   

Por último, el defensor valenciano no pasa por alto las obras a realizar en el IES la Morería, reseñadas en el informe remitido a la institución. Luna recuerda que una educación de calidad conlleva que los centros docentes dispongan de los equipamientos necesarios para ello: “La finalidad de proporcionar al alumnado una formación de calidad, difícilmente se podrá alcanzar si el centro docente donde debe impartirse no cuenta con los medios materiales necesarios para satisfacer las necesidades educativas del alumnado”. E insiste en que los poderes públicos deben dar respuesta rápida y ágil a las necesidades detectadas en la instalación educativa. Una tardanza en la realización de las obras previstas “generará mayores perjuicios para el alumnado, además de una quiebra de sus derechos”.   

Consulta la resolución del Síndic de Greuges sobre este asunto.  

Our report calls for urgent cultural change to end the cycle of poor complaint handling in the Welsh NHS.

‘Groundhog Day 2: An Opportunity for Cultural Change in Complaint Handling?’ focuses on ongoing issues with how Welsh Health Boards handle complaints.

It builds upon “Ending Groundhog Day: Lessons from Poor Complaint Handling”, published by our office in March 2017.

It shows that the lessons highlighted by our office in 2017 remain relevant today.

The case examples included in this Report demonstrate that all too often, Health Boards respond to complaints defensively rather than seeing them as an opportunity for learning and improving the services they deliver.

The themes identified in the Report point to areas were learning and improvement is urgently needed to improve the patient and complainant experience:

·       A lack of openness and candour

·       A lack of objective review of clinical care and treatment

·       Timeliness and quality of communications

·       Robustness and fairness of investigations undertaken by Health Boards.

The Report emphasises that the introduction of the ‘Duty of Candour’ on health organisations in Wales, effective from 1 April this year, presents a fresh opportunity for cultural change. The duty mandates health organisations to be open, transparent, and honest when patients experience harm during healthcare. This cultural shift aims to promote candour and systemic learning from mistakes.

Commenting on the Report, Public Services Ombudsman for Wales, Michelle Morris, said:

During my first year as Ombudsman, I have been struck by the similar pattern of complaint handling failings which my office has identified in cases involving Health Boards across Wales.

Although most health care across Wales is delivered in an excellent and professional manner, inevitably, sometimes organisations make mistakes.  In 2022/23, we found that Health Boards made mistakes and should put things right in between 22% and 41% of our complaints about these bodies – depending on the Health Board area.

When mistakes happen, we expect health bodies to respond openly and honestly to patients and their families. This does not always happen. In fact, we have seen an increase in complaints about poor complaint handling by Health Boards.

For example, we often see that, when Health Boards respond to complaints, they have not objectively assessed the care and treatment provided. In another example, even when, following investigation, the facts of a case clearly show that the Health Board made a mistake, we see that organisations do not acknowledge this in their complaint responses. These failings have real impact on patients and their families, often compounding the trauma caused by mistakes in care and treatment.

We trust that the Duty of Candour will have a positive and transformational impact on the way in which complaints are handled within Health Boards. However, if we see in our complaints that the Health Boards are not taking the Duty into account as they should, we will continue to call it out.

Miss X, the complainant in one of the cases highlighted in the Report (202102028) said,

My father’s death has been deemed to be the result of the Health Board’s failings over a period of 4 days. At least 5 interventions were deemed to have been missed over that time that may have prevented his death. Knowing that even one opportunity to save his life was missed is devasting. There are no words to describe how I feel knowing this happened repeatedly and though no-one can be 100% certain, it was described as highly likely he would be here today had even one of those opportunities been actioned.

My initial complaint to the Health Board was answered before a legal cause of death had even been established by a coroner. …. The process was impersonal and when I asked about appealing the decision, I was told that I only had three months .… It very much felt like a David and Goliath situation.

I should have been grieving and instead I had to endure further submissions of evidence, rebuttal of health board statements and recounting experiences where their own policies were not followed.

The outcome [of the Ombudsman’s investigation] was devastating in that it confirmed my worst fears, yet reassuring that I had been right not to give up. If the outcomes in this report prevent one death or stop one family going through what we have experienced in terms of distress, trauma and at times, simple exhaustion, it means that the injustice to my father will not be forgotten and dismissed as simply unfortunate.

I would encourage anyone who makes a complaint and feels the response is inadequate to contact the Ombudsman. Only if families keep challenging will this Health Board be held accountable for not investigating complaints fully and objectively.

Read the Report here.

Published on 14 June 2023

Ombudsman Ger Deering has said that it is ‘shameful’ that there is still no suitable government support to help people with disabilities access personal transport.  This is despite a commitment from government over ten years ago to develop an appropriate scheme, and reports from two government departments highlighting the need for such supports.   

Speaking at the publication of his annual report for 2022, Ger Deering said:

“The manner in which people with disabilities continue to be denied access to personal transport supports is nothing short of shameful.  Everyone agrees that something needs to be done but no one seems to be willing to take action”.

Under the United Nations Convention on the Rights of Persons with Disabilities, there is an onus on the Irish government to provide access to transportation on an equal basis with others to enable people with disabilities to live independently and participate fully in society. The Ombudsman said that the current situation for people with disabilities is unfair and unacceptable.

The Ombudsman referred to issues with three schemes - the Motorised Transport Grant, the Mobility Allowance, and the Disabled Drivers and Disabled Passengers scheme.  When Mr Deering’s predecessors as Ombudsman highlighted inequities in the schemes, the response of government was either to discontinue the schemes, or in the case of the Disabled Drivers and Disabled Passengers scheme, to reinforce the inequitable and inadequate eligibility criteria in primary legislation.  In addition, the latter scheme has not had an appeals mechanism in place since November 2021.

In 2013, the then government announced that it would introduce an alternative to the Motorised Transport Grant and Mobility Allowance schemes.  However, over ten years later nothing has happened.  Both the Department of Finance (October 2022), and the Department of Children, Equality, Disability, Integration and Youth (February 2023), have published reports on the issue but there has been no progress. 

The Ombudsman said:

“We do not need more committees or reports, we need clear leadership and action.  I will continue to highlight this shameful neglect until real progress is achieved.”  

Highest number of complaints ever made to Ombudsman in 2022

The Ombudsman, Ger Deering, said that 2022 saw the highest number of complaints ever received by his Office.  There were 4,791 complaints about public service bodies, an increase of over 19% on the 2021 figure. (This increase is primarily a result of the 835 complaints about the Passport Service.  Complaints mainly related to delays in processing applications. It is expected that there will be a significant fall-off in such complaints in 2023 as the Passport Office engaged constructively with the Ombudsman’s Office throughout 2022 to help resolve the issues and improve its customer service).

Ger Deering said that complaints about government departments and Offices accounted for the largest number of complaints with 1,842 - an increase of 73% on 2021. This included 853 complaints about the Department of Foreign Affairs (including 835 passport complaints), and 621 complaints about the Department of Social Protection.  

There were 1,269 complaints about local authorities (down 2% on 2021) with most relating to housing issues. This included 200 complaints about Dublin City Council, 86 about Limerick City and County Council, and 78 about Cork City Council.

There were 790 complaints about health and social care bodies, with 300 complaints about the HSE, and 104 about Tusla.

The Ombudsman’s Office completed 4,808 complaints – the highest ever in the history of the Office and a 21% increase on the 2021 figure.  The Office also responded to 6,710 enquiries (an increase of 9.5%).

The Ombudsman’s annual report for 2022 is available at www.ombudsman.ie

Case Studies

The Ombudsman’s annual report also summarises some of the complaints he upheld in 2022 including:

Car value drops after NCT accidently adds 40,000 km to mileage reading (Page 33)

When Sarah went to sell her car she noticed that the National Car Testing Service had accidentally added over 40,000 km to the odometer reading on her NCT certificate.  When she complained to the National Car Testing Service it said it could not change the reading as any errors needed to be brought to its attention at the time of the NCT. 

The Ombudsman noted that there were a number of COVID-related restrictions in place at the time of Sarah’s NCT, including encouraging car owners to leave the NCT centre as soon as possible after the test. This meant that Sarah may not have seen notices indicating the NCT’s policy.  After the Ombudsman intervened, the NCT apologised for the error and issued a revised NCT certificate with the correct reading.

Department could not find file after €32,000 social welfare overpayment (Page 34)

John complained to the Ombudsman when the Department of Social Protection started to recoup over €32,000 it said it had overpaid him in his Invalidity Pension.

When the Ombudsman asked the Department for evidence of the overpayment the Department said it could not locate John’s file.  In an earlier investigation report (‘Fair Recovery’, 2019), the Ombudsman had said that if the Department cannot locate a file, then there is unlikely to be anything to support a decision to recover the overpayment, and there is nothing to support a decision to withhold arrears.

Following discussion with the Ombudsman, the Department agreed to refund the amount John had already repaid. It also confirmed that it would write-off the overpayment.

€32,000 nursing home bill despite being told that costs would be covered (Page 35)

Caroline contacted the Ombudsman when solicitors from her brother’s nursing home sought payment of €32,000 in fees for a seven-month period between her brother being admitted to the home and approval for funding under the Nursing Home Support Scheme (Fair Deal). There was no contract in place for the seven-month period, and Caroline’s family said they were told by the home that the fees would be covered by HSE ‘emergency funding’.

There is a statutory obligation on nursing homes to put in place a contract for residents.  In addition, there was no evidence on the nursing home file to suggest that fees were discussed for the period the family were awaiting the approval of the NHSS. In response, the nursing home agreed to waive the €32,000 charge.

END