15. Mrs E says an Inspector from PINS arrived ‘unannounced’ despite it being agreed in November 2020 that no unaccompanied visits would take place at her property until it was safe to do so.
16. She also complains that, at the time of the visit, the COVID-19 guidelines did not allow for the Inspector to visit her property because the work was not essential, and her household was CEV.
17. From the evidence available to us, we can see that originally PINS was due to carry out an unaccompanied site visit at Mrs E’s property on 16 November 2020.
18. However, on 3 November 2020, Mrs E contacted PINS by email to tell it she did not agree to the Inspector visiting her property on 16 November. Amongst the five reasons she listed, one of them was that both she and her husband were classified as CEV and that they both have ‘major health issues’.
19. On 5 November 2020, PINS wrote to Mrs E and said, ‘The Inspector has agreed for the site visit on 16 November 2020 to be postponed in the circumstances. I can confirm that [we] will be in touch with arrangements for an accompanied site visit (with both parties present) in due course’.
20. On 8 December 2020, an Inspector arrived at Mrs E’s property with the aim of carrying out an unaccompanied site visit, which was to be carried out in Mrs E’s back garden. The Inspector needed to knock on the door, firstly to make Mrs E aware they were there, but also to gain access to the garden.
21. At the time of the visit, Mrs E was unable to go to the front door, but her husband was able to answer it.
22. To help with us our consideration of the complaint, Mrs E provided us with CCTV footage that shows the Inspector speaking to her husband on 8 December 2020. During the conversation, Mrs E’s husband makes the Inspector aware they were not expecting the visit and that the Inspector should not be there. The Inspector told Mr E that they had not received any communication that they should not attend.
23. Mr E said he had correspondence from PINS to say the Inspector would not turn up, to which the Inspector said, ‘You did some time ago, but not recently.’ The Inspector then asked if Mr and Mrs E had sent an email to PINS recently. Mr E confirmed they had. We know from speaking with Mrs E the communication he was referring to was the email Mrs E sent to PINS on 3 November 2020.
24. The Inspector then said if Mr and Mrs E were not happy for the site visit to take place in the garden then he could abandon the visit for now. The Inspector also apologised for PINS’ error in communication and abandoned the visit.
25. On the same day, Mrs E contacted PINS by phone and email to complain. Mrs E said she was unhappy that the Inspector arrived without forewarning. She said this caused her husband to become very distressed and agitated and that she was also extremely angry and upset.
26. On 7 January 2021, PINS issued its response to Mrs E’s complaint. PINS said that an administrative error had taken place, which was its failure to notify Mrs E of the site visit PINS had re-arranged for 8 December 2020. It said, ‘a previous site visit, arranged for mid-November, was postponed at your request due to national lockdown’.
27. PINS said that the national lockdown had ended on 2 December 2020 and as such, the government’s advice had changed. PINS said that because Mrs E lived in a ‘Tier 2’ area, an Inspector from a ‘Tier 2’ area had been identified to undertake a site visit.
28. PINS said that for site visits needing access, it would usually contact the relevant party to confirm arrangements and guidance on how to conduct the site visit safely to adhere to government guidance on physical distancing. PINS said: ‘Unfortunately, in this particular instance, there was a failure to send you a notification letter, for a site visit on 8 December, in accordance with standard procedure’.
29. PINS said it upheld Mrs E’s complaint and it apologised for its oversight and its poor customer service.
30. Section C.9.3 of PINS’ guidance, ‘Procedural Guide: Planning appeals – England’ says, ‘If access to the site is clearly required, we will contact the appellant/agent with a date and usually a morning or afternoon time slot when the Inspector or his/her representative will carry out the site visit’.
31. This means that PINS was correct to acknowledge that by not notifying Mrs E ahead of the re-arranged site visit it had failed to follow its own procedure.
32. Also on 7 January 2021, Mrs E responded to PINS and said she did not accept its letter as a resolution of her complaint. She asked for her complaint to be escalated. She said that ‘at no point did the Government guidelines say it was acceptable to visit a shielding household with clinically extremely vulnerable members’. Mrs E also added that she had been specifically isolating for an operation that was due to take place two days after the Inspector visited unannounced.
33. Mrs E also asked PINS to supply a copy of the guidelines ‘that state it was ok to visit a household uninvited in our risk group’.
34. On 11 March 2021, PINS issued its final response to Mrs E’s complaint. In its response, PINS referred to its original decision to uphold Mrs E’s complaint. It said it acknowledged and apologised for its administrative failure to notify Mrs E of the site visit that was scheduled for 8 December 2020 and the distress this caused. It said it had reminded the case officer of the actions required in organising site visits to prevent it happening again.
35. PINS said that as Inspectors are not required to oversee the sending of procedural letters, the Inspector in Mrs E’s case was not aware that she had not been notified of the visit. PINS said it appreciated that this did not mitigate the distress caused, but that having reviewed the CCTV footage Mrs E provided to PINS, it did not consider the Inspector’s behaviour to be inappropriate.
36. PINS also said that its first response to Mrs E’s complaint had included a link to its own published COVID-19 guidance updates. It said: ‘I am not aware of any specific national guidance at the time of the visit that would have made it necessarily unlawful for the Inspector to undertake a site visit to yourselves (which would have been outdoors only) and the decision to undertake such visits would have been subject to the Inspector’s consideration of risk. However, again I note our key failure to notify you of the site visit arrangements; and that this error prejudiced your ability to react – including providing your reasons why the site visit should not take place at that time and the relevance of your own circumstances’.
37. Finally, PINS said that in acknowledging the distress its error has caused, and recognising that an apology on its own may be an insufficient remedy, it offered Mrs E a financial remedy of £100. It asked Mrs E to confirm whether she was willing to accept this ‘full and final settlement’ and if so, to provide her bank details so payment could be made.
38. Unhappy with PINS’ explanation and offer, Mrs E asked her MP to refer her complaint to us.
39. In its response to our initial enquiries, PINS told us the national guidance changed in early December 2020, and the Government had adopted a tiered system approach to the lockdowns.
40. However, Mrs E has told us that this new tiered guidance did not apply to CEV households, nor people within a CEV bubble. She says that people who were classified as CEV needed to prevent contact with people outside of their household or bubble.
41. We told PINS Mrs E had told us the tiered system excluded those who were classed as CEV and asked whether it had copies of any advice or guidance relevant at the time that was specific to that issue.
42. We also told PINS it had sent us its own internal guidance titled, ‘Updated advice to Inspector’s and APOs regarding casework involving site visits in England – 25 June 2020’ which outlined that Inspectors were not to visit sites themselves if they were classed as CEV or part of a CEV bubble or household. We explained we could not see anything in this guidance that referred to what should happen if the household Inspectors were due to visit were CEV.
43. On 1 December 2021, PINS responded and said it was still working on putting together a response to the above enquiry. However, it also said that ahead of issuing us with a response, it wanted to understand on what we were basing our enquiries and understanding of the national guidance in relation to CEV. It said the ‘Covid-19 Winter Plan’, published on 2 December 2020, outlined the change to the national lockdowns around this time.
44. Specifically, PINS quoted the following: ‘75. Under recent national measures, the clinically extremely vulnerable have been advised to take extra precautions and stay at home as much as possible. Local Authorities have been working to ensure the right support is available for those that need it... 76. As the national restrictions end, the guidance to the clinically extremely vulnerable not to go to work or school will also end.’
45. However, despite this further information, it remained unclear what PINS’ guidance was when considering the CEV status of households it intended to visit, and how that was amended in light of any national lockdown changes.
46. We also note that paragraph 76 can be expanded. In the next sentence it says: ‘The government will reintroduce the specific advice for clinically extremely vulnerable people on how they can protect themselves at each tier.’
47. On 10 December 2021, PINS issued us with its full response to our enquiries regarding its understanding of the Government guidance at the time.
48. As part of its response, PINS provided us with a copy of a letter from the Secretary of State for Health and Social Care, dated 27 November 2020, addressed to CEV persons.
49. This letter said: ‘I wrote to you a few weeks ago to let you know about the guidance and support that was in place for people considered to be at highest risk from COVID-19 (sometimes referred to as clinically extremely vulnerable) during the four-week period of national restrictions. That guidance, as well as the national restrictions for the general population, will be coming to an end on 2 December.
On 23 November, the Prime Minister announced that the Government will be reintroducing the system of local Tiers from 2 December. At each Tier, there will be a set of rules that everyone in your area must follow. This letter is to let you know about the new guidance that will be in place for clinically extremely vulnerable people from 2 December, and which you may want to follow to help keep yourself safe.
This guidance includes additional precautions covering things like socialising, travel and going to work and school. These are not rules but advice, so you can choose whether you wish to follow them. There is a table at the bottom of this letter that summarises the precautionary actions you can take.
Unlike the guidance that has been in place since 5 November, we are no longer advising you to stay away from work or school. However, you should continue to keep the number of social interactions that you have low and try to reduce the amount of time you spend in settings where you are unable to maintain social distancing.’
50. As part of our consideration, we also referred to the table that was included at the bottom of this letter. The table said, ‘You must follow the rules and restrictions that relate to the Tier your local area is in – they apply to everyone’.
51. We know from the evidence available to us, and from checking local information from the time, that Mrs E’s local area was Tier 2. It is clear from the Secretary of State for Health and Social Care’s letter that CEV persons were to follow the government’s new guidance that applied to everyone in their tier, but that it was up to CEV persons to follow extra precautionary advice if they wanted to.
52. The extra precautionary advice included actions such as reducing the number of different people you would meet, or reducing the number of shopping trips you may go on etc.
53. The information in this letter is also consistent with a letter Mrs E provided us with, that was sent to a member of her CEV bubble. In this letter, dated December 2020, it says: ‘On 2 December, the Government reintroduced the system of local tiers. At each tier there are additional things people considered at highest risk are advised to do, whilst continuing to stay generally fit and well. There is a table at the bottom of this letter which summarises these things, which cover areas like socialising, travel and going to work and school.... These extra steps are not rules, so you can choose whether or not you want to do them.’
54. Based on this evidence, we are satisfied that from 2 December 2020, CEV households were no longer required to shield and the decision to isolate was down to the individual themselves. We appreciate that there may be instances where doctors were advising specific CEV persons to continue to self-isolate, however, this is not something we can see that PINS would have been aware of in Mrs E’s case.
55. We know from speaking with Mrs E that had PINS written to her, as it should have done, to make her aware of its intention to send an Inspector to visit her property on 8 December 2020, she would have said no. This is not only because of her concerns surrounding her and her husband’s health with regard to COVID-19, but also because she had to self-isolate due to an operation scheduled for 10 December 2020.
56. We also know from the evidence available to us that if Mrs E had said no a second time, PINS would likely have respected this decision and re-arranged the visit.
57. With all the above in mind, we consider the evidence available to us shows that the CEV guidance at the time said it was for CEV individuals to choose the level of interaction they wanted to have with others from outside of their household, based on the level of risk they were prepared to accept, and their own comfort levels.
58. We have thought about this carefully, as the CEV guidance was intended for the individual household, in this case Mrs E, rather than PINS. Therefore, we cannot say that PINS has acted in breach of its own direct guidance, as it has pointed out.
59. However, we are not persuaded that in arranging a visit without explicitly checking with Mrs E first that it has respected her rights under the CEV guidance to decline physical interaction with those outside of her household or acted in line with our ‘Principles of Good Administration’.
60. Our Principles say ‘In their decision making, public bodies should have regard to the relevant legislation. Decision making should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately.’
61. Our view is that arranging a visit to Mrs E’s property, without first confirming that she was willing to take such a risk in light of her CEV status, is a failing. We consider that this is slightly different from PINS’ current position that it was acting in line with all applicable standards in arranging the inspection at that time, and that the error was simply that it did not communicate with Mrs E properly, once planned.
62. The CEV guidance at the time gave Mrs E the right as a Tier 2 CEV individual to decline physical interaction if she did not deem it to be safe, and the government’s message at the time was very much that the individual had to assess and determine their own risk. In our view, by not contacting Mrs E before arranging the inspection, once the national lockdown ended and the Tier system started, PINS denied Mrs E the opportunity to assess and determine her own risk.
63. We note that there are no further applicable pieces of guidance or standards than those already outlined, and that this was a difficult area for public organisations to navigate during the period in question. By ending the national lockdown and implementing the Tier system, the Government gave the responsibility for decision making to organisations and individuals.
64. This meant that in some instances, as demonstrated in this case, the information provided to public organisations was not always clear and definitive and was therefore open to interpretation. We recognise that it would have been difficult on PINS’ part to be clear as to what exactly the updated guidance meant for itself, and its customers, with its site inspections.
65. For the reasons outlined above, we consider that PINS did not act in line with Our Principles when it decided to arrange an inspection, given its knowledge that Mrs E’s household was CEV, and that CEV guidance gave individuals the right to determine whether it was safe for anybody to visit their property, whether indoors or outdoors.
66. We consider this is a failing by PINS, as well as the failing it has already acknowledged when it did not communicate with Mrs E to notify her of the re-arranged site inspection.
Impact
67. Having considered all the evidence available to us, we can see that PINS did not act in line with Our Principles when it decided to arrange an inspection at Mrs E’s property.
68. Mrs E says that by attending her property unannounced, her and her husband’s health was put at risk. Mrs E says her husband answered the door to the Inspector as she was unable to get to the door at that time.
69. She says her husband, became agitated and confused by the situation, which meant he had ‘one of the worst days’ in relation to symptoms because of his dementia. She also says the fact PINS even attempted to visit the property at that significant point in time has caused her to ultimately lose confidence in PINS altogether.
70. We consider that PINS’ decision to arrange an inspection for 8 December 2020 will have caused distress for Mrs E. This was at a time when Mrs E was undoubtedly concerned about her own health, and the health of her husband and anybody within her bubble. She was shocked and upset that an Inspector arrived at her property without checking if she considered it was safe to visit.
71. We consider there would have been an added weight to this distress given the fact she had only told PINS a few weeks prior to 8 December 2020 that she considered it was unsafe to attend due to her household’s CEV status. Therefore, we do not doubt she would have been shocked and upset when she heard her husband downstairs speaking to an Inspector at the front door.
72. Mrs E says the Inspector risked her household’s health and caused a negative behavioural reaction in her husband because of his dementia. While we appreciate the risks to CEV people regarding COVID-19, we can see from the CCTV provided by Mrs E that the Inspector wore a mask and always remained outdoors. After ringing the doorbell, the Inspector moved backwards and away from the door to create space between themselves and the front door, in line with social distancing requirements.
73. The purpose of the Inspector knocking on the door was to gain access to the garden, without any need for entering the house or coming into direct contact with Mrs E or anyone within her household.
74. We have not seen anything to suggest, on the balance of probabilities, that the actions of the Inspector led to any impact on Mr E’s physical health, nor can we give any view that this event caused any behavioural reaction which might otherwise have been avoided. This is in no way intended to detract from what was clearly a very difficult and distressing day for Mr and Mrs E, simply that we have not seen any evidence to suggest, on the balance of probabilities, that Mr E’s behavioural reaction was caused by this incident, rather than any other factors.
75. We have considered whether there is anything further that we might be able to refer to. However, we can see that there is no further evidence available which might allow us to reach a view that Mr E’s dementia would, on balance, have been any better or worse at that time.
76. With regard to the impact this visit had on Mrs E’s husband at the time, we are unable to say whether the visit caused a reaction in her husband, and if so to what extent. We are unable to determine from the CCTV footage provided what Mr E’s reaction was, as he can only be heard having a conversation with the Inspector.
77. Mrs E’s husband did not react in any notable way on the footage and, as outlined above, there is no way for us to know whether he would have had the same behavioural reaction later that day even if the Inspector had not arrived, as a result of other factors. As such, we cannot say that the failings outlined in this report are linked to the behavioural and emotional impact Mrs E says they had on her husband.
78. In January 2021, PINS acknowledged it made a mistake when it did not communicate with Mrs E to tell her that an Inspector was attending the property on 8 December 2020. PINS said it had ‘clearly fallen short’ with its handling in relation to this aspect by not sending Mrs E a notification letter.
79. PINS recognised that mistakes such as this one ‘create a very poor impression in terms of efficiency and customer service’. PINS also said it would remind its casework team of the need for due diligence moving forward.
80. In March 2021, PINS recognised that an apology on its own was not enough to put right the distress its error had on Mrs E. As such, it offered £100 in financial remedy, and it invited Mrs E to provide her bank details so it could make the payment. We understand from talking to Mrs E that she did not accept this offer and as such, did not provide her bank details.
81. We understand Mrs E’s view on the Inspector arriving on 8 December 2020 without PINS establishing whether she was happy for the Inspector to visit. We think this would have been the correct thing to do, given the CEV guidance at the time, and we think PINS’ apology and £100 offer of financial remedy is suitable in the circumstances.
82. The ‘Planning Inspectorate: claims for repayment of additional costs (ex gratia scheme)’ sets out PINS’ policy for instances where something goes wrong with its customer service. The policy says that where something has gone wrong, PINS may offer the following remedies:
· acknowledgement of responsibility, an explanation and an apology · remedial action, which may include: · reviewing service standards · revising published material · revising procedures to prevent the same thing happening again · training or supervising staff · a combination of these.
83. It also says the decision whether to make a payment is a discretionary one. Section 7.2 of this policy says ‘Each claim will be considered on a case-by-case basis and in according with the guidance in Appendix A’.
84. Appendix A says it is the claimant’s responsibility to ensure that any claim and supporting evidence submitted is sufficient for the purpose of the assessment. This guidance largely refers to costs that may arise for a claimant because of a PINS error. As such, it refers to claimants submitting invoices and receipts for claims of direct financial loss.
85. The ‘Remedy and redress’ section of PINS ‘Complaints procedure’ also suggests it only typically pays financial redress to cover costs arising from its mistakes, as opposed to any emotional impact such as in Mrs E’s case.
86. The guidance says that in most cases, PINS apologises and takes some form of remedial action. In order to help us further consider the apology and £100 remedy offered in this case, we referred to our own ‘Severity of Injustice Scale’.
87. ‘Level 2’ of our scale describes the kind of impact we usually expect to see where organisations have provided remedies for amounts ranging between £100 and £450. We consider £100 to £450 is an appropriate remedy for instances where something has gone wrong that has resulted in a degree of distress, inconvenience, or minor pain. It is also for instances where there was a more serious impact, but it only happened once or lasted for a short duration.
88. In Mrs E’s case, we consider that there was an emotional impact caused by PINS arranging the re-inspection without first checking with her if it was safe to visit.
89. As already outlined, PINS offered Mrs E £100 in financial remedy because it did not send her a notification letter after it had arranged the re-inspection.
90. While the failing PINS has acknowledged and accepted differs slightly to the one identified in this report, we think the impact of both errors is the same.
91. We have not seen any additional impact as a result of the different failing identified because whatever errors led to the Inspector visiting that day, the level of frustration and distress caused to Mrs E was the same.
92. We consider PINS’ error caused frustration and distress for Mrs E at a time when COVID-19 was still a very real concern for people, particularly those with health issues. However, as previously outlined, we cannot say on the balance of probabilities that the Inspector’s visit caused the negative reaction from Mrs E’s husband, nor can we go as far as to say there was an impact to Mrs E’s health.
93. We also note that once the inspection was abandoned, it was simply re-arranged when it was next safe to do so, with the agreement of Mrs E. This means that nothing was lost for Mrs E in terms of the purpose behind the inspection as it was still carried out later.
94. Our ‘Principles for Remedy’ say that if it is not possible for an organisation to return complainants to the position they were in before the poor service took place, then they should ‘compensate them appropriately’.
95. We consider that PINS has acted in line with its own guidance, our Scale, and our Principles by offering £100 in financial remedy, alongside its apology and the remedial action it took in recognition of Mrs E’s experience and her complaint.
96. As such, we do not uphold this complaint, as although PINS made mistakes, we consider it has already put things right.