SPSO Individual Decisions

Ms C complained about her daughter's (Miss A) primary school. Miss A had recognised issues at primary school, particularly with her emotional literacy and communication skills. She also reacted badly when she made mistakes. Her head teacher had discussed these issues with Ms C and steps were agreed to help Miss A. However, her problems continued and the head teacher referred the matter to social work in terms of the Scottish Government's 'Getting It Right For Every Child' (GIRFEC) procedures. Ms C complained to the council that the head teacher discriminated against her and that the council were unreasonable in the way they dealt with her complaint. We investigated Ms C's complaint and made further enquiries of the council. We found that GIRFEC procedures are the national approach to improve outcomes for, and to support the wellbeing of, children by offering the right help at the right time. The child is the focus for all organisations involved and the approach encourages early intervention by professionals, for instance, by social work who could provide help to avoid crisis situations at a later date. Miss A had some problems which were not resolving, although her school had involved Ms C in their efforts to help her. Accordingly, the head teacher approached social work in line with GIRFEC guidance. While Ms C considered this to be unreasonable, we found no evidence of this. We did not uphold her complaint. Although Ms C also complained about the way the council later considered her complaint, she was unhappy with the merits of the decision rather than the way the decision on her complaint had been made. We did not uphold this complaint. Related reading View Decision Report 201606618 as a PDF (11.4 KB) Updated: March 13, 2018

Mr C raised concerns about the way the council responded to his reports of noise nuisance from his neighbour's heating equipment. Part of this equipment was subject to a planning application, which was approved by the council's planning service following input from the council's environmental health department. This permission was subject to three conditions, two of which related to noise output and one of which related to the erection of a fence around the equipment. Mr C felt that the equipment was being operated in breach of all three conditions and that the noise from the equipment was a statutory nuisance. He was not satisfied with the way the council responded to these concerns and he complained to the council about this. In response to Mr C's complaint, the council said that these matters were jointly investigated by the planning service and the environmental health department. We took independent advice from a planning adviser and an environmental health adviser. The planning adviser noted that enforcement action was a discretionary power, and was satisfied that the council's planning department took reasonable steps to investigate whether there had been a breach in planning permission. However, they noted that one of the planning conditions could have been specified more precisely, which would have reduced the scope for misinterpretation. Although they did not consider that the condition was unenforceable, they noted that this was a learning point for the council. Although we did not uphold this aspect of Mr C's complaint, we made a recommendation in relation to this. During our investigation, we found an instance where a council officer made inappropriate comments about one party of the planning enforcement investigation. We did not consider that the officer had failed to act impartially, yet we felt the council should apologise to Mr C and take steps to remind officers of their responsibility to maintain appropriate communication. We also noted

Mr and Mrs C raised concerns about the council's handling of various planning applications for a site, including their home. In particular, they said that certain applications failed to protect their home by ensuring that its floor level and that of its neighbour were built to a similar level. As a consequence of this, they said that the council failed to assess the impact of their neighbour's sun lounge on their amenity and privacy. We made enquiries to the council who confirmed that they had since established that the levels of the properties concerned were not in accord with the applications granted and the houses were not built as envisaged. The difference in levels had led to Mr and Mrs C's property being overlooked. We took independent planning advice and we found that one of the properties concerned was too high, whereas, the other was too low. The consequence of this was that overlooking of Mr and Mrs C's house was unavoidable. The council were largely responsible for this. Similarly, because the floor levels were incorrect, the council would not have been able to properly assess the impact of the neighbours' sun lounge on Mr and Mrs C's property. We upheld the complaint.

Mr C complained about the council's handling of an application to construct an anaerobic digestion plant (a plant in which farm and food waste is digested for methane) on land near his property. Mr C said he only became aware of the project after construction started as he had not been consulted during the planning stage. It became apparent that the council had received an application over a year previously, consulted, and ultimately approved it. Mr C complained that the council did not specifically refer to his property during the planning process. He also raised concerns that the council did not include a buffer zone around his property in accordance with the Scottish Planning Policy. The council said that they did not need to refer specifically to Mr C's property, and noted the planning documents referred to nearby dwellings. In relation to Mr C's concerns about the imposition of a buffer zone, the council said this was not mandatory under the policy. However, they said they had considered this and came to the conclusion it was not necessary. After receiving independent advice from a planning consultant, we did not uphold Mr C's complaint that the council failed to specifically refer to his property. While we noted Mr C's concerns about awareness of his property, we found no procedural failing in the council's consultation process, or any requirement to specifically identify his property. We upheld Mr C's complaint about the buffer zone. We noted that the council were unable to provide any evidence that this had been taken into account, which we would have expected in the circumstances of the case.

Ms C, who works for an advocacy and support agency, complained on behalf of her client (Ms A). Ms A said that the council delayed in awarding free personal care to her mother when she moved into a care home. Ms A was also unhappy with the way the council dealt with her subsequent complaint. Following discussions with us, the council acknowledged that they had missed an opportunity to join up their different services so that they could provide Ms A's mother with a comprehensive service. They apologised for this failure and they agreed to reimburse the full free personal care contribution being claimed by Ms A. As Ms C was happy with this outcome, we closed the case as resolved. Related reading View Decision Report 201604586 as a PDF (10.92 KB) Updated: March 13, 2018

Mrs C lived adjacent to a site on which unauthorised development had taken place. Mrs C was unhappy that the development had caused her property to flood and complained to the council that they had failed to take appropriate enforcement action to address the flooding. We found that the council had served three enforcement notices on the developer in relation to the site, and that each of these had been appealed. We also noted that the developer had submitted a further planning application to the council, which meant that all enforcement action was on hold pending the outcome of this application. In response to our enquiries, the council advised that they considered they had taken appropriate steps to take enforcement action against the developer. We took independent planning advice. The adviser considered that the council had taken reasonable steps in the first instance to ensure that the enforcement notices were served on the correct parties. However, the adviser was critical with the approach taken by the council in relation to the enforcement notices and did not consider that this approach would have been able to achieve the council's aim of preventing flooding to Mrs C's property. While the adviser was critical of this aspect of the council's actions, we did not consider that this failing had altered the outcome of the case. This was because it was evident that the developer submitted a new planning application, which meant that all enforcement action would have been on hold anyway. However, we found that, in the event that the developer's latest application is refused, the council should reconsider enforcement action with the benefit of hindsight over the detail required in preparing the enforcement notices. We made a recommendation in relation to this and decided on balance to uphold Mrs C's complaint.

Mr C complained about the council's handling of a planning application submitted by his neighbours. The council had granted planning permission, with an attached condition which stipulated that the recommendations in a tree report that had been produced for the neighbours were complied with. Some of the recommendations in the tree report related to trees that were on Mr C's property. As Mr C had refused his neighbours access to his trees, the planning condition could not be met. When Mr C's neighbours wrote to the council explaining this, the council stated that they considered the condition to have been fulfilled nevertheless. We took independent planning advice. We found that it was unreasonable for the council to attach a planning condition that was unachievable to the planning application. We also found that rather than considering the condition to be fulfilled when they discovered it to be unachievable, the council should have asked the applicants to formally apply, under section 42 of the Town and Country Planning (Scotland) Act 1997, for the condition to be varied or for the development to proceed without complying with the terms of the condition. We noted that prior to our investigation the council had implemented new training and guidelines to reduce the possibility of a similar failing occurring again, and that they had accepted that the condition should not have been attached in the form that it was. We therefore upheld Mr C's complaint.

Ms C complained about the council's handling of asset transfers to two local charities, as she did not believe that the council had completed appropriate Equality Impact Assessments (EIA)s as required under the Equality Act 2010. She believed that they had only completed one EIA, which failed to consider all of the protected groups defined in the Act. On investigation, we found that the council had completed EIAs for both asset transfers. On the first of these assessments, one area of the form used had only been partially completed, giving the initial impression that only some protected groups had been assessed. However, after reviewing their records in full, we were satisfied, on balance, that the council had considered all of the areas required. As such, we shared this minor error with the council but did not uphold this complaint. Related reading View Decision Report 201507707 as a PDF (10.99 KB) Updated: March 13, 2018

Mr C complained on behalf of his former wife (Mrs B) and his son (Mr B) about a letter Mr B's head teacher sent to Mrs B, in relation to alleged disciplinary issues in the school. Mr C also complained about the council's investigation of and response to Mrs B's complaint. We found that the head teacher's letter included very emotive language, rather than factual information about specific incidents. Such factual information could have helped to engage Mrs B with the school's concerns in light of the facts. We also identified a number of failings with the council's investigation and response to Mrs B, and noted that the council failed to send us all relevant information in response to our enquiry. The council's investigating officer made a recommendation following their investigation but the council was not able to provide information on the investigating officer's meetings or findings, therefore we concluded that notes were either not taken or not retained. We upheld Mr C's complaints.

Mr and Mr C said the council had not taken the risk of flooding into account in dealing with a retrospective planning application. The application had been submitted by a neighbour for change of land use on the site of a business. Mrs and Mrs C said the site had been steadily developed over a number of years without consent. They said that changes had been made to the land which increased the risk of flooding. We found the council had reasonably explained their decision. Their view was that there was no change in development terms that they considered would affect or increase the risk of flooding. We took into account that Mr and Mrs C could have raised objections to the application but did not do so. However, whilst planning officers reached their view based on a number of valid considerations, including advice previously given in respect of flooding, their report of handling (a document which explored the merits of the development in accordance with various planning policies) did not contain the kind of detail we would have expected. We found the council had not responded reasonably to Mr and Mrs C's complaint about buildings erected without consent. Although the council had carried out a site visit, they omitted to tell Mr and Mrs C what they found, and that they considered the buildings permitted the development. We upheld Mr and Mrs C's complaint.

Mr C complained on behalf of his constituent (Mr A) following the council's decision to deem Mr A intentionally homeless. We found the council had followed and applied the relevant legislation appropriately. We therefore did not uphold Mr C's complaint. Related reading View Decision Report 201604266 as a PDF (10.67 KB) Updated: March 13, 2018

Mr C complained about the council's handling of a planning application at a business park where he owns property. Mr C was concerned that the neighbour notification process had not been correctly followed as he had not received any information on the proposed development. He also complained that the council did not have sufficient information about the nature of the business that was to operate from the new development before approving the application, and that his subsequent reports of noise and pollution had not been acted on appropriately. We took independent advice from a planning adviser and upheld Mr C's complaint. We found that while Mr C's property was not within the neighbour notification area, the council had already acknowledged that the process had not been correctly followed as the description of the development provided in the notification and local press advertisements was inaccurate. The council accepted that updating the description amounted to a substantial change which should have been re-notified and re-advertised. The advice that we received was that a change of this type should have necessitated a new planning application. The council explained that they had reviewed their planning processes and steps were in now in place to prevent a recurrence of errors like this in future. In relation to the information available to the council in reaching a decision on the planning application, the advice we received was that not all material considerations had been taken into account. The adviser considered there was no evidence that pollution and contamination had been considered. The adviser explained that any decision on whether the planning consent was valid would be a matter for the courts if a legal challenge was made. We noted that Mr C had continued to report difficulties in respect of pollution. We found that following initial reports, there had been a failure to promptly advise Mr C of the outcome of environmental investigations and that

Mr C complained on behalf of his daughter (Miss A) about the transfer of school work when she moved between two schools. We found that while the first school had updated Miss A's exam results promptly after she withdrew from the school, they did not properly deal with requests from Miss A and staff from the second school for evidence of those marks in the form of coursework. We also found that the council had not identified this poor communication in their complaint investigation. We noted that they appeared to have contacted only the first school during their investigation and not the second school. We found this to be unreasonable. We therefore upheld Mr C's complaints and made two recommendations.

Mr and Mrs C's child made a disclosure to their class teacher about an incident they found upsetting within the family home. The class teacher spoke to the head teacher and the child was interviewed by the head teacher. The head teacher then contacted another member of the education department for advice and they suggested that social services be contacted. The head teacher said they were clear that they did not make a social services referral. However, the social work department contacted Mr C and arranged a meeting with him and Mrs C. Mr C was unhappy about this and complained that the head teacher had not followed the correct Getting It Right For Every Child (GIRFEC) procedures. Mr C believed the head teacher should have spoken to him prior to contacting the social work department and they should have created a written assessment of the risk to the child. Mr C also complained the council's investigation into the matter had been rushed and unfair since they had refused to meet with him, despite meeting with the council staff involved. We found there was no evidence that the head teacher had followed the appropriate GIRFEC procedures as set out in the council's guidance to staff. We found that the head teacher was unaware social services had recorded their contact with them as a referral. We considered it inappropriate that teachers did not know how the social work department recorded requests for advice. We found the council's investigation had not identified the failure to follow council guidance, nor had it explained to Mr and Mrs C why they had been contacted directly by the social work department. We considered the council's investigation into the complaint had not been conducted to an appropriate standard.

Ms C, who is a GP, complained that the council failed to communicate with her about their handling of a child protection matter that she had raised with a head teacher. We found that the council had acted reasonably in referring Ms C to the body leading the investigation and that their approach to information sharing was in line with the guidance. We were satisfied that in the circumstances the council were correct not to share information not least because it was not clear why Ms C wanted it or what the information would be used for. We found that the council had responded in a timeous way to Ms C’s complaint. Although Ms C felt that the council should have continued to engage with her further correspondence at the end of the complaints process, we did not agree, not least because the prospect of resolving matters to her satisfaction was remote. Related reading View Decision Report 201507635 as a PDF (10.98 KB) Updated: March 13, 2018

Mrs C raised a number of complaints with the council about how she felt the school were failing to provide a safe and supportive environment for her oldest son. Mrs C also complained that the response to her youngest son's allegation about being hit by a teacher was inadequate. After the council investigated the issues, it found the school considered that some of the incidents could have been handled differently. Whilst the issues were addressed by the school over time, we found that they should have been addressed from the outset given they related to a young child's health and safety, so we upheld this aspect of Mrs C's complaint. We did not uphold Mrs C's other complaints. We identified sufficient evidence to demonstrate that reasonable steps were taken to address her oldest son's support needs at an early stage and measures put in place with appropriate review taking place. There was also insufficient evidence to indicate that there was an issue with him being bullied. Although we considered that the council's response to Mrs C's complaint about her youngest son being hit by a teacher should have been fuller - and we made a recommendation about this - we found that there was clear evidence to demonstrate the school had taken reasonable action to investigate the allegations.

Mr C's garden bordered a field. The council granted planning permission for a residential development on the field. To achieve the desired ground levels for the new site, it was necessary for the developer to dig down some three metres. This resulted in a steep banking being created, running the length of Mr C's western boundary, partly in the garden of one of the new properties and the remainder within an amenity space (an area designed to enhance enjoyment of the surroundings) at the development. Mr C found that his garden ground was being eroded with earth slipping down the banking into the new development. He complained to the council about the lack of retaining wall but was advised that this was not something that would normally be considered under the remit of a planning application. They maintained that this would normally be included by the applicant as part of their proposal, rather than at the insistence of the council. The council also advised Mr C that it was not a building control matter and that he should seek legal advice if he felt the actions of others had had a negative impact on his property. After taking independent advice from a planning adviser, we upheld Mr C's complaint. We found that the council had consistently maintained that no specific consideration was given to stability as this was considered to fall outwith the remit of the planning service. The adviser did not agree with this approach and considered that, given the significant change in ground level from Mr C's property to the new development, this should have been a material consideration in the council's planning report. We also found that there had been issues with a condition that was attached to the new development's planning permission and that this had caused confusion for local residents such as Mr C.

Ms C complained to us about the way the council had dealt with a planning application to develop a site close to her home. Over the years, a number of applications had been made for the site or nearby. Ms C was unhappy that differing noise measurements taken at her home had been accepted by the council. She also said that developers had identified two different sources for her water supply but that the council still went on to determine the planning application. Ms C also complained that the minute of the local area planning committee meeting failed to fully record her feelings about the matter. We investigated the complaint and took independent advice from one of our planning advisers. We found that although contradictory information had been presented to the council by the developers, this was not a matter within council control. The accuracy of the information was the responsibility of the developer. We found that such information only formed part of the evidence of the likely significance of any environmental effects of a proposed development. The council would consider this alongside other, material considerations when making planning decisions. Moreover, it was not uncommon for a planning authority to 'accept' conflicting evidence knowing it was not a determining factor and that any potential effects could be mitigated by planning conditions. With regard to Ms C's concerns about the committee meeting minute, it was confirmed that this was not meant to be a verbatim record, but was a way to record the process of the meeting and to inform committee members about the decision they were about to take. The minute was not taken to provide documentary evidence for any other purpose. Related reading View Decision Report 201404543 as a PDF (11.41 KB) Updated: March 13, 2018

Mr C, a member of the Scottish Parliament, complained on behalf of Mr A about what he considered to be unauthorised planning development on a site close to his home. Mr A had previously owned the site and still held two planning permissions with regard to it. There was a dispute about ownership of parts of the site. Mr A believed that the council failed to take appropriate and necessary enforcement action, and that they went on to approve six planning applications in relation to the site. He said that the applications were not properly assessed prior to approval, and that the environmental health department did not make reasonable objection. Because of the works, Mr A said that his water supply had been disrupted and that the council failed to take reasonable steps to prevent this. He was further aggrieved because he had been issued with a planning contravention notice in relation to the site. We took independent advice from a planner and we found that, despite Mr A's concerns, there was evidence to show that the council had followed correct procedures. We also found that the question of whether enforcement action was taken was at the discretion of the council, and any action was required to be proportionate. We found that the six applications had been properly considered and that, although three of them were retrospective, this was all in terms of the appropriate planning legislation. The applications had been properly assessed and commented upon by the environmental health department. Furthermore, there was no evidence to suggest that Mr A's water supply had been detrimentally affected, and he had been given appropriate advice in the event that this should happen. It was clear that it had been fully explained to him why he had received a planning contravention notice and why the required information was necessary. Related reading View Decision Report 201407501 as a PDF (11.45 KB) Updated: March 13, 2018

Mr C complained that the council unreasonably granted planning permission for a house in a small lane where access to the public road could not meet the visibility standards required. He also raised concerns about the impact of this development on parking in the area. Initially, the roads department had refused to support the application as it would have meant vehicles reversing onto the public road. Proposals for a turning area were then included in the plan. The roads department said that, even though the access was still substandard, as similar access arrangements existed elsewhere they would not object to consent being granted. They also noted that the development would only result in the loss of one parking space. We considered Mr C's complaint and took independent advice from a planning adviser. We were satisfied that, although the access did not meet the usual standards, the council had fully considered the issue of safe access and parking. They had taken into account the steps taken by the applicant to improve access and they considered that, on balance, the proposal was acceptable. As the council were able to demonstrate that they arrived at their decision in a reasoned and justifiable way, we did not uphold the complaint. Related reading View Decision Report 201502273 as a PDF (11.21 KB) Updated: March 13, 2018

Mr C was receiving an individual budget from the council under a self-directed support pilot scheme. Mr C was responsible for arranging his own social care support in line with a plan and outcomes he agreed with the council. At the end of the pilot scheme Mr C was asked by the council to repay £1050 which he had withdrawn from the individual budget in cash. The council said Mr C had failed to prove the money had been used to meet agreed outcomes. Mr C said he had given the council clear evidence of legitimate expenditure. Mr C complained about the way the council had treated his complaint. In particular he said he was not given an opportunity to contribute his evidence to the process before a decision was made. We found that when Mr C wrote to the council they failed to tell him the matter was being treated as a financial appeal rather than as a complaint. They incorrectly said their resource allocation panel amounted to a statutory appeal process. The council assessed the complaint under their corporate complaints handling procedure when the complaints should rightly have been considered and assessed for eligibility under the statutory social work complaint process. We asked the council to review their handling of Mr C's complaint. We found that Mr C was not given a proper opportunity to contribute his evidence to the financial appeal process before it was considered by the resource allocation panel.

Mr C complained to the council about the actions of his local community council. The council told Mr C that they could not consider his complaints until he had exhausted the complaints procedure of the community council. They had previously told him this in relation to another complaint he made about the community council. Mr C was dissatisfied with aspects of the council's response and complained to them that their response had contained inaccuracies and that their position was unreasonable. The council repeated their previous response to Mr C. Mr C was dissatisfied and brought his complaints to us. We found that the council's response to his first complaint was reasonable, and did not uphold that complaint. However, we found that the issues Mr C raised in his second complaint were not the same as those in his first complaint and, therefore, that the council's response to this complaint was unreasonable. We upheld Mr C's second complaint. Related reading View Decision Report 201500913 as a PDF (10.95 KB) Updated: March 13, 2018

Mrs C complained to the council that the conditions of a planning application had not been fulfilled. She remained unhappy at the conclusion of the complaints procedure and brought her complaints to us. We thought that it may have been possible to resolve the matter but our attempts did not result in this. Mrs C then did not respond to our efforts to contact her, and we decided that we would not consider the matter further. Related reading View Decision Report 201500999 as a PDF (10.81 KB) Updated: March 13, 2018

A developer had demolished a farm steading and begun construction of a new building without getting planning permission. The council served stop and enforcement notices on the developer that required the building works to be stopped, the foundations of the new building to be removed and the steading reconstructed. Some years later, the developer applied for permission to construct a new building on the site and the council granted consent. Mrs C, a neighbouring property owner, complained that the council had failed to follow through on the original enforcement notice requiring the removal of the foundations and rebuilding of the steading. She said they had unreasonably used the fact that there were existing, though unapproved, foundations as justification for granting consent on the new building. She also raised concerns about the omission of details about the enforcement notice on the planning officer's report, their failure to take into account her concerns about the local water supply, and their failure to deal adequately with her complaint. We found that the council had acted reasonably, and within their discretion, when taking enforcement action against the developer. We did note that the enforcement notice was inappropriately worded and required works to be carried out which, if enforced, would have effectively granted consent for a new building in an area which, at that time, was against the terms of the local development plan. We noted that the local development plan had changed since then and now allowed for new development in the countryside, and that this was the reason the new application was granted. We also found that the council had taken into account Mrs C's concerns about water supply and had placed conditions on the planning consent requiring that her supply be unaffected by the new development. We did not uphold these elements of her complaint. However, we noted that it would have been good practice for the planning officer's report to ha

Mrs C lives near a former quarry site where planning permission was granted for the erection of buildings and stabilisation works some years ago. When works began she became concerned that the site was operating as a quarry and outside the planning conditions imposed by the council. She complained to the council about this. The council responded that the developments appeared to be progressing in accordance with the relevant approvals. They said that no conditions had been made in relation to the specific matters that Mrs C raised and that there had been no breaches of the planning conditions, but that concerns about these matters had been passed to relevant departments. Mrs C was dissatisfied with the council’s responses and complained to us that the council's statement that there had been no breaches of planning conditions was inaccurate. Mrs C's specific concern was that the site was operating outside the times set out in the conditions relating to the two approvals. After investigating Mrs C's complaint, we found that the operating times stated in the conditions related to after the development had been completed, not during its construction and, therefore, we did not uphold the complaint. Related reading View Decision Report 201407596 as a PDF (11.13 KB) Updated: March 13, 2018