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Needing help to explain direct evidence as opposed to circumstantial evidence


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Hello,

 

I'm dealing with the public services ombudsman and I explained that I had a telephone call that I had with a councils care partnership , anyway the complaints reviewer has responded saying  he would not progress things to the actual ombudsman saying that the reason is that my evidence was circumstantial so the investigation by him took the side of the care partnership.

 

It's a long drawn out complaint to do with the council not funding care to my mother who died and only giving care after the uk government funded it so the council had no cost to them etc and anyway I had a telephone conversation with the assessor who assessed my mother in which she admitted she agreed to give 2 hours care after finding out that the Uk  government would fund 2 hrs care and Ive said all this to the ombudsman but as I say the complaints reviewer says my evidence is circumstantial so a complete investigation by the actual ombudsman is not going to happen.

 

Im going to ask for a review but I need to have an actual reason not just that I disagree with the decision . 

 

I think my evidence was was direct evidence and not circumstantial so I'm going to say that as well as other things etc but I'm unsure if it is direct evidence and I'd be grateful if anybody knows ? On the web I can find examples but it's all confusing and if I'm right and my testimony is direct evidence how can I explain that ? I'd be grateful for any help .

 

thanks David 

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The following is American Law but it will give you the general idea.

 

https://www.shouselaw.com/ca/defense/legal-defenses/circumstantial-evidence/

 

Andy

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Hi honey bee ,

 

I got all mums hospital records along with all the records from the care company. The timeline shows what Ive asserted to the claims reviewer i.e. That the care from the council came after the funding from the uk government . I was paying for 2 hours and the council funding 2 hrs but only after they knew it was at no cost to them.

 

I've given all this to the ombudsman ( the bundle was about 6 inches thick by the time I got mums hospital records and yes I asked for her records from council under specific laws which I can't remember of the top of my head but they were like a subject access request )  but it was rejected by the reviewer

 

I'm at the review stage by the actual ombudsman but there are only specific things that can get her to review it . Like errors of law and extra evidence and stuff like that. I think the reviewer has made a mistake , I think my testimony is direct evidence not circumstantial as the reviewer said but it's how to explain that is what I'm needing help with . 

 

thanks andy for that I'll look at it see if it helps 

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You haven't actually explained what is the basis of your complaint. That might help. "Circumstantial evidence" can be circumstantial to one issue – but direct evidence of a different issue.

Because you haven't explained what the complaint is about, we have no way of forming any opinion about this.

I'm also concerned that it seems that there is some information that you are unable to get. Why is this? What information did you try to get – and what did the letter of refusal actually say? Where is your mother?

You saying that you asked for records under some specific laws which you can't remember "off the top of your head" – this is really unhelpful. I think you need to organise your file so that you have these answers to hand. They are going to be important if you are asking for advice here and important if you are going to raise a complaint with the authorities.

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Apologies bank fodder here's what happened. 

 

I received an an emergency phone call from my mother December 2018 she lives in Scotland I'm in england south coast I'm her only son and dad is dead.

 

I arrived to find her at deaths door really ill she was 81 no food in house . I took her to the adult social work dept who told me to get care in place and they would be out to assess in due coarse etc. I had to return in to England two weeks later but in the meantime I had a care company in place. I was funding two hours per week it was all I could afford as I'm disabled as well and on benefits .

 

the care assessment was done by council  and came back as everything ok as my mum already had 2 hrs care. the private  care company said to me she needed more care and it was obvious she did.  it was dementia and mum  was really bad etc

 

I phoned the council to complain and spoke to the person who assessed her and she said to me in the phone that she would now give mum 2 hrs from the council but this was exactly at the time mums order from the government to fund 2 hrs care came through (the care company had applied for funding through the government and 2 hrs was awarded ) so this meant the council didn't have to fund anything . Remember that the first assessment was no care needed and the only thing that had changed was the funding from the government.

 

mum was getting 4 hrs per week 2 funded by me and 2 by the government . The care company was pushing for more from the council as mum was really bad and in desperate need but she died in the April .

 

over the next year I followed the complaints process stage 1 then stage 2 months past but the council stuck to their guns . I managed to obtain mums hospital records under the access to health record act 1990 from hospital and the only way that it perhaps would be possible to obtain mums records from the council would be under the freedom of information act or the access to health record act . A subject access request would not be appropriate etc as it's not me it's mum.

 

the council as expected refused under both the freedom of information act And the access to health records act as they only have to answer to the courts on this so my only option to prove negligence from the council was to apply to the ombudsman to investigate.

 

all the information records and emails were properly put to the ombudsman  as were my assertions of negligence withholding needed care ( the private care company drew me aside saying I should ask for an inquest as they were constantly being refused things they asked for  by the council ) 

 

the complaints reviewer from the ombudsman says under the reasons he will not refer it to the actual ombudsman is because there is no evidence , when I asked him what would be evidence he replied that he took my complaint very seriously and asked the council but they are disputing what I said , he also says my evidence was circumstantial .

 

I can't just ask for a review because I disagree it has to be for specific reasons . For example if what I said about my telephone conversation was in fact direct evidence I could say the complaints reviewer erred on a point of law , and after reading that link Andy posted I think my evidence is in fact direct evidence. that was what I was asking just clarifying direct from circumstantial .

 

I now plan to say he erred and my evidence is direct and had he not erred he would have referred it to the actual ombudsman . I have also obtained written evidence from the private care company which shows exactly the timeline I've said. This timeline was disputed by the council so I now have that and the direct evidence info thanks to Andy and just have to put it together formally to ask for a review and hope I get it . Generally the ombudsman looks at all requests but only opens up ones if she is persuaded to. Etc.

 

sorry for such a long post I've been stressed out about this for such a long time and now I'm at the final hurdle 

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I'm sorry but I'm having difficulty following the substance of your complaint.

 

You made arrangements with a private care company to provide 2 hours per week care to your mother.  The local council assessed her but they decided that she needed no additional assistance from them.  The private care company advised you that your mother did need more care.  You contacted the local council again and after reviewing their earlier decision they agreed to provide 2 hours per week care making a total of four hours per week in all (2 hours private provision and 2 hours from the council).  The funding for those 2 hours per week provided by the council came from central government and was not funded by the LA itself*.

 

Is that what happened?

 

If your mother received that 2 hours per week care from the council (ie 4 hours per week in total), I'm not sure what you are complaining about.  Are you saying that she did not in fact receive that care from the council?

 

I also don't understand the relevance of the telephone conversation with the council assessor?  Are they denying it ever took place or are they denying that they agreed to provide 2 hours per week care?

 

Also, without knowing exactly what the nature of your complaint is, I'm not sure how your "evidence" is circumstantial.  Was it perhaps described as hearsay?  (ie you are trying to use the telephone conversation to establish that what the council employee told you was true).

 

* I'm not sure what, if any, relevance the source of the funding has?

Edited by Manxman in exile
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Yes that's exactly what happened mans man when you ask is that what happened at the end of your second paragraph.

 

The relevance of the telephone conversation ( and yes they are denying it took place ) is that when the person  changed her mind and said to me she was going to award 2 hrs care , it was exactly when they ( the council ) received the award from the government. Realising it would cost the council nothing . Mum was assessed by them a week before and the answer was the private care of 2 hrs was enough but on receiving the award then it was upped to 4 hrs. This goes against the care act in Scotland . The care should be given on need and I'm asserting that it was driven by cost i.e. No cost at all to the council. So anyway if I can prove this I have a case , and when the ombudsman investigated at the complaints review stage he said from what I told him he was very concerned and did make enquiries  but the council said that what I told the ombudsman wasn't true and the way he conveyed this to me was that " my evidence was circumstantial "  

 

fast forward to now now and I've obtained the relevant evidence from the care provider that documents exactly what I've said to be true i.e. The timeline of when they were paid and by who , when the council added the extra two hours to them ( they were subcontracting to the council as well as being paid by me ) so I've got all the evidence but the more I can say to ask for this review the better and there has to be specific reasons  and I have to show that the reviewer erred to get the case opened up. If the complaints reviewer had thought that my evidence was direct evidence( which it is as I've found out and confirmed by that link Andy provided) he would have passed it to the actual ombudsman who has more powers and maybe could have demanded documents from the council etc

 

in actual fact mums care was badly mishandled by the local council it was obvious to everyone her doctor her nurse the hospital the nexdoor neighbour that mum needed lots of care but the council witheld it because of cost and that was the cause of her death and I'm doing my best to prove that.

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OK - I think I understand now.

 

My own view would be that you are mistaken in thinking that you have direct evidence and that in fact you only have circumstantial evidence.

 

Your argument is:  (1) the council assessed your mum as not needing care, (2) the council changed their mind after government funding became available and provided care and (3) therefore the council must have acted wrongly in denying your mother care earlier, because they did provide it when they didn't have to pay for it.

 

I'm afraid that looks to me pretty much exactly like the definition of circumstantial evidence as linked to by Andy:

 

"Circumstantial evidence is proof of a fact or set of facts from which one could infer the fact in question"  *

 

You are "inferring" (ie deducing) that because the council agreed to provide care only after funding became available, then it must be the case that the reason they did not provide care earlier was because they could not afford it, and not because your mum did not need it.  But it's equally plausible that they may simply have made a mistake on the earlier assessment.

 

It would, however, be a different matter if you had direct evidence that care was originally denied your mother even though she needed it.  This direct evidence might be notes of decisions or minutes in your mother's file saying that she needed care but it was being held on grounds of cost, or if somebody from the council told you** that that was the case.  But for obvious reasons, I think you'd agree you are unlikely to find such evidence and in any case, I don't think you are claiming to have such evidence.

 

Personally, however, I don't see what difference it makes if the evidence is circumstantial as opposed to direct - except that an allegation supported only by circumstantial evidence is more difficult to prove than one supported by direct evidence.  Clearly, the fact that no direct evidence exists does not mean that that the council hasn't done what you allege.  It might just mean you haven't found direct evidence yet...

 

I don't know anything about Ombudsman procedures and it might be that they only investigate complaints where there is more than circumstantial evidence.  But I'd be going back to them and saying that as there was sufficient evidence there for the reviewer to be "concerned", then the interests of justice demand it be investigated, despite the apparent lack of direct evidence.

 

Don't just rely on me though.  See what others think - particularly as to whether your evidence really is circumstantial and as to the limitations on the power of an ombudsman.

 

Good luck!

 

 

*  Personally I'd change that definition to  "Circumstantial evidence is proof of a fact or set of facts from which one could infer the fact in question the truth or existence of another fact".

 

**  Is this where the 'phone conversation comes in?  Are you saying they admitted that your mother was denied care, despite needing it, on grounds of cost?  Or were they just saying they'd made a mistake?  I don't understand the relevance of the 'phone call.  EDIT:  Just reread your post.  The council will say it was a coincidence that they changed their mind at the same time money became available.  Perfectly plausible.

Edited by Manxman in exile
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Thank you Manxman that was very helpful  i shall use that bit about the interests of justice. Yes you are right it would be unlikely for me to find the evidence I'm clutching at straws now to be honest. I had intended to say my telephone call was direct evidence it was just a matter whether or not it was believed or not like in that link. And if it were believed a full investigation would have taken place but what you say is better , if the reviewer was concerned enough etc , in fact I might say both .

 

These things I think are designed to put people of , the stress was unbelievable applying under this law then that and being refused. The thing was it was obvious , I mean really obvious she needed lots of care and I thought things would be ok after we got the care company in place as it turned out I knew the career from my childhood and she was constantly telling me that the council were refusing everything they asked for. On the day she died the ambulance refused to break down the door for a time that was because they weren't sure anyone was in and the career was standing outside telling them she was in fact in. The council had refused a key safe because of cost . 

 

Im so angry with the council and I want to find out what really happened   I was focusing on the conversation on the phone as direct evidence because the reviewer said that if there was proof that the funding was in fact the criteria the council used to provide care then he might have gave it to the actual ombudsman . That was the only reason I was taking about the phone conversation , just to try to use it as a reason to open this case up again etc.

 

Thank you again Manxman what you said is very helpful

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Well good luck.  Very distressing state of affairs.

 

I'd try every argument you can with the ombudsman without saying anything ridiculous.

 

I would argue that the lack of direct evidence does not necessarily mean that circumstantial evidence cannot be relied upon as "proof" that something is wrong.  After all, if the council is following a deliberate policy of not providing care because they simply can't afford it (a situation which you imply is unlawful but I don't know if it is or isn't) they're hardly likely to leave direct evidence of that lying around, are they!

 

I know this must be a difficult time for you , but I'd also urge you to remember that like all of us, councils and their care assessors can simply make mistakes, and that sometimes - unfortunately - they have to make very difficult decisions about what they can - and can't - afford to do.

 

Again, good luck, but I'm not sure you'll get anywhere.

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Thank you Manxman ,

 

You have fully understood and I can see what you say makes perfect sense and that is exactly the position from the council and the ombudsman

 

I have to try though (and I will try and if I get any joy I'll come back here and post etc ) orit would bother me for the rest of my life .

 

thank you again

 

David

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If it makes you feel better pursuing it, then pursue it.

 

But know when to call it a day if it just gets more frustrating.  It's no fun banging your head against a brick wall.  The trick is knowing when to stop.

 

Again, good luck.

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