SPSO Individual Decisions

Mrs C complained that the council had failed to properly notify two neighbouring properties of a planning application near to her home. She was also concerned that the council granted planning consent despite being informed that land which the applicant had suggested was under their ownership was not. She reported a number of breaches of a planning condition restricting noise on the site outwith the working day and was unhappy that the council did not take additional action against the developer for breaching this condition. Mrs C was also unhappy with the way the council dealt with her subsequent complaint. The council had previously acknowledged that, as a result of a computer error, they failed to notify two neighbouring properties. They explained the steps they had taken to fix their computer record and apologised to the owners of the properties concerned. We were satisfied that the council had failed to notify these neighbours as they were required to, and we upheld this aspect of Mrs C's complaint. As they had already taken steps to correct their system records and had apologised to the property owners, we made no recommendations on this point. As the council had obtained appropriate certification from the developer in respect of land ownership, as they had reminded the developer of their responsibilities to comply with the condition relating to noise outwith working hours and as they dealt with the complaint in line with their complaints procedure, we did not uphold these aspects of Mrs C's complaint. Related reading View Decision Report 201600096 as a PDF (11.29 KB) Updated: March 13, 2018

Mr C complained about the council's actions in relation to planning issues for a development next to his home. He said that they had unreasonably considered the addition of an extra upper storey window in one of the houses in the development to be a non-material variation (a change which does not require planning permission). We took independent planning advice on Mr C's complaint. We found that the council had been entitled to consider that the additional window was a non-material variation and did not uphold the complaint. Mr C also complained that the council had found that a condition in the planning permission relating to the boundary at the site had been met, despite the fact that the fence built by the developer was constructed two metres short of the boundary and left several trees on Mr C's side of the fence. We found that it had been reasonable for the council to decide that the developer had complied with the terms of the planning permission in relation to the boundary. We did not uphold this complaint. Mr C also complained that the council had failed to ensure that adequate on-site parking provision for workers was provided during the construction period. We found that the council's actions in relation to this matter, including their decision to take advice from their roads service, had been reasonable and we did not uphold the complaint. Finally, Mr C complained that the council had failed to ensure that works did not take place at the development site outwith the construction periods referred to in one of the conditions of the planning permission. We found evidence that the council had adequately monitored the situation, including issuing reminders prior to bank holidays. We considered that the council had taken reasonable action to ensure that works did not take place outwith the construction period and we did not uphold this complaint. Related reading View Decision Report 201508904 as a PDF (11.34 KB) Updated: March 13, 2018

Mrs C complained about the length of time it took the council to inspect and make safe a damaged wall in the cul-de-sac where she lived, as she was concerned about the health and safety of children who play there. She was also unhappy with the council's communication concerning the planned works on the wall, and their handling of the complaint that she raised with them. We found that the timescale for inspection of the wall was at the discretion of the council. We therefore did not uphold this aspect of Mrs C's complaint. However, we found a number of failings by the council with regard to their communication and the handling of Mrs C's complaint. We found that there was a delay in the council responding to Mrs C's complaint. The council did not inform Mrs C that they had undertaken an inspection visit or that their decision that the damaged wall did not constitute a hazard for the public. We found that they did not provide regular updates and that when Mrs C did receive information, it was often confusing and contradictory. We therefore upheld these aspects of Mrs C's complaint. The council apologised for some of these failings and have since repaired the wall. Mrs C also raised concerns about a faulty fence and we made a recommendation relating to this.

Mr C complained about the council regarding a meeting he had with them to discuss proposed design changes to a public space. He told us that he felt the staff present had communicated in a manner which was hostile and patronising and that he had left with the impression that the purpose of the meeting was to bully and intimidate him rather than discuss the merits of the proposal in question. Mr C had originally advised that he held a recording of the meeting in question, taken with the permission of everyone present. However, the recording had become corrupted and Mr C was unable to provide this. On investigation, we found that the council had not taken minutes or made any other written record of the meeting. We did not consider this unreasonable in the circumstances but this did mean we were unable to reach a definitive conclusion, basing our decision on the limited records that were available. On balance, we concluded that while it was clear that Mr C had left the meeting extremely dissatisfied with the manner council officers communicated with him, the evidence available did not support this complaint. What written communication was available was considered and professional in tone and appeared to suggest that the council were willing to discuss the issues in question openly and thoroughly. We therefore did not uphold the complaint. Related reading View Decision Report 201602131 as a PDF (11.26 KB) Updated: March 13, 2018

Ms C's neighbour applied for planning permission to build a porch extension which Ms C considered blocked her light. She complained to the council after permission was granted and was told that the plans had passed the daylight test. Ms C complained that the plans to which the daylight test was applied were inaccurate. The council responses indicated that they had tested the plans for accuracy but despite repeated requests for the information, the council could not offer proof of this test. Ms C continued to complain after she had had a final decision and the council reinvestigated her concerns concluding in a second final response. Ms C was unhappy that the plans were inaccurate, the council failed to provide her with proof of their test of accuracy and issued her with numerous responses after a supposedly final response. We concluded that the council were reasonably entitled to assume the plans were accurate but should have provided Ms C with the information about this (or any test used to check accuracy of plans) and should not have continued to consider Ms C's complaint after issuing a final decision.

Mrs C and her husband decided to defer their child, who has a February birthday, starting Primary One. They wanted their child to spend a further year at nursery. Mrs C said that in terms of the Scottish Government statutory guidance, The Children and Young People (Scotland) Act 2014, children born in January or February have the right to have the deferred year funded by a local authority. Mrs C and her husband secured a place for their child at a partnership nursery school within the council area and applied for funding. The council initially refused the application because in terms of their early years admissions policy deferred funding was only provided for the nursery the child had attended in their pre-school year. In the case of this child, the nursery was in another local authority where the family resided. The council then wrote to Mrs C stating they would fund her child's place but shortly thereafter withdrew their funding offer. The council said the letter offering to fund the child's place had been sent as a result of human error and because their database had not been updated. Mrs C complained to us about the council's handling of her application. In terms of the statutory guidance, we were satisfied that the council were entitled to set their own local admissions policy and at the time Mrs C made her application, her child did not meet the criteria for funding. Nevertheless, we accepted that the failings in the handling of Mrs C's application had left her in a difficult situation and had caused her concern and distress. For this reason, we upheld the complaint. We also made a recommendation to the council in relation to their computer system in respect of funding applications. The council subsequently reviewed their admissions policy and agreed to fund the child's deferred year place.

Miss C complained to the council after they refused to provide her with a bigger bin. She stated that the current provision was not sufficient for her needs as she had a large household. However, the council had carried out assessments of her waste and found material they said could have been recycled or disposed of in other ways. They stated that, had this taken place, she would have had sufficient capacity for her needs but Miss C disputed that the assessments had been accurate. On investigation, we found that the council had photographic evidence to support their statements and, while this was not conclusive due to the nature of the assessments, there was no evidence available to suggest that they had acted incorrectly. We therefore did not uphold the complaint. However, we also identified that the council's second stage complaint response had been very brief and lacked sufficient detail to fully explain the reasons for their decision. As such, we made recommendations in relation to this failing.

Mrs C's son, who had previously been educated elsewhere, wished to enter sixth year at the local council-run secondary school. The council said they would not allow this as Mrs C's son was of an age where, according to their view of relevant law, her son was an adult. Mrs C complained about the council's decision, and about their handling of her complaint. We looked at the council's response to Mrs C's complaint and although she disagreed with their position, which was based on their interpretation of relevant law, the council had consistently explained to her that her son was considered to be an adult and, therefore, there was no duty on them to provide him with a place at the school. It was not our role to resolve differing interpretations of the law, or to interpret it ourselves. Therefore, we would not give a view on the correctness, or otherwise, in law of the council's position. We could not uphold Mrs C's complaint just because she disagreed with the council. In terms of the council's administration of the complaint, we found they should have explained to Mrs C earlier what stage her complaint was at, and they should have proactively provided her with updates. This would have helped Mrs C know when to expect a reply from the council. In addition, the same council officer made the decision not to allow Mrs C's son to enrol in the school, and dealt with Mrs C's complaint at both stages of the complaints process. This was inappropriate, and the council accepted this and had a different officer review the complaint. We upheld this part of Mrs C's complaint.

Mrs C complained that the council rejected a new complaint following a complaints review panel. We found that the council had considered her complaint and had decided, as they were entitled to, that Mrs C was raising the same or similar points as had already been dealt with. In light of this, we did not uphold Mrs C's complaint. Related reading View Decision Report 201402950 as a PDF (10.73 KB) Updated: March 13, 2018

Mr C complained that he was charged late payment fees for failing to renew his landlord registration in time. He said that he had been unable to access his account to renew online and had made efforts to pay in person at the council's offices. However, the council were unable to accept payment as he had not completed the application form. Mr C eventually completed a paper application but by then his registration had already expired and late payment fees automatically applied. We found that the council sent Mr C three reminders before his registration expired, which they were required to do under their landlord registration procedure. These explained how he could renew online and provided a phone number for him to contact should he need a paper application. However, Mr C did not contact this number until after his registration expired. While he had made efforts to pay the associated fee, an application was required so that appropriate declarations could be made before an invoice could be generated and payment accepted. Mr C also complained that he was misinformed by staff when he attended the council's offices to try to pay, but we could find no evidence to support this. In the circumstances, we did not uphold the complaint. Related reading View Decision Report 201401547 as a PDF (11.14 KB) Updated: March 13, 2018

Ms C applied to the council on behalf of her son for a Young Scot card and education maintenance allowance. There were delays in processing her applications and because of that, Ms C complained to the council. She then complained to us because she said the council failed to address her complaint appropriately. Having reviewed the council's complaint file and related documents, we found that the council could have taken steps to outline what the relevant procedures and likely timescales were in relation to each application. We also considered that they could have explained in more detail what had happened to the Young Scot card application. In addition, the council failed to address Ms C's concerns about her application for education maintenance allowance.

Mr C built a driveway at his property, which is at a junction, but was told by the council that he should not use the pedestrian dropped kerb there as access. As a result Mr C then applied for permission to construct an additional vehicular access away from the junction and requested that the council carry out work to drop the kerb. He then complained about the treatment he received from the council regarding the new driveway he had constructed at the junction and his dropped kerb application. He felt that the council had imposed inappropriate conditions on the consent for the dropped kerb application. Mr C also complained about the council's handling of his complaint. We found that there had been a considerable amount of correspondence with the council on the matter and Mr C had gained the impression that the council had changed the conditions. However, based on the available evidence we were satisfied that the council had explained why the works they outlined were required and we did not uphold that complaint. We did uphold his complaint about complaints handling, as we found that the council had (in line with their complaints procedure) escalated Mr C's complaint straight to stage two of their process. They had not, however, told him about this.

Mr C complained that the council had failed to acknowledge and respond to his online complaints about water drainage in his street. During our investigation, we looked at information provided by Mr C, and at the council’s records. We found that the council took practical steps to resolve the issue underlying the complaints, in terms of trying to deal with the drainage problem. However, their records, to some extent, gave a confusing picture of how Mr C’s complaints were handled. We upheld his complaint, as we took the view that the council should have been aware that Mr C’s complaints required a formal answer, which they failed to provide.

The council carried out an informal consultation exercise in respect of their schools, looking at a number of options, including possible closures and mergers. Ms C complained that the consultation included her local rural primary school. She said that there was an agreed moratorium (temporary delay) on proceeding with statutory consultations for the closure of such schools and, because of this and a recent legal case, she complained it was not appropriate for the school to be included. She also raised concerns that the council did not consult appropriately with the community and failed to highlight the potential loss of grant funding and increased transport costs when assessing the options. We noted that the moratorium was in place while the commission for the delivery of rural education carried out a review on the closure of rural schools. However, this related specifically to progressing closures through the formal statutory consultation stage, which was not the case here. The council exercise was a review of their whole school estate and we did not consider it unreasonable that they included this school in that. Any eventual decision to proceed with closure, once the implications of the commission's report and the legal case had been considered, would still need to be taken through the statutory consultation process. Our investigation found that the council's consultation on the future of the school estate was comprehensive, and involved stakeholders such as parent councils as well as surveying the opinions of the general public. We also considered the financial information provided by officers when considering the options, but found no evidence to suggest that they misrepresented the financial case for this school. The impact of any decision on grant funding was clearly detailed in reports and they had included transport costs when assessing the overall potential cost implications. As we found no evidence to suggest that the council's informal consulta

Planning consent was granted for the erection of 30 new houses. The planning consent included a condition that required the developer to submit a scheme for the treatment of Japanese knotweed growing on the site before commencing work. Mr C complained that the council allowed work to start before this condition was fulfilled. He also complained about delays to responses from the council to his complaint correspondence. We did not uphold the complaint about the work starting too early. Our investigation found that the condition was worded in such a way that it only required a scheme to be submitted to the council. There was no requirement for the scheme to be approved or implemented before work started. We considered, however, that it was implied that an approved scheme, including proposed timescales for the treatment of the knotweed, should have been in place before work started. We found that such a scheme was submitted in good time, and was approved by the council subject to certain additional precautions being taken by the developer. The council worked with the developer to ensure these precautionary measures were in place. When responding to Mr C's concerns, the council noted that the work that he described as having started was site clearance work rather than development. We accepted that in planning terms there is a difference between the two, and that there was no opportunity for the council to take enforcement action against site clearance work, which does not require planning consent. We were satisfied that the council fulfilled their role in planning terms, as they highlighted to the developer that specific action was required to prevent the spread of knotweed and ensured that a scheme for this was in place. Any subsequent work by the developer that may have caused the spread of this controlled species would have been a criminal offence and not a matter for the council as planning authority. Whilst we were satisfied that the council did not perm

Ms C had been unable to work due to health problems. She moved to the council's area when she found a new home which was let privately, and applied to the Department of Work and Pensions (DWP) for benefit and to the council for housing benefit. After Ms C moved there, she found five weeks' temporary work, and told the DWP. She understood (wrongly) from a conversation with a DWP officer that there would be a 'run on' period of benefits during a period of temporary employment. When she later started a second period of temporary work, the DWP and council began a benefits investigation which took some months to complete. Ms C meanwhile failed to make full payment of rent to her landlord, who served her with notice to quit. Ms C applied to the council for rehousing on the basis of threatened homelessness. The benefit fraud investigation found that Ms C had misunderstood the processes involved and accepted that she had not intended to defraud. Her housing benefit was re-instated and the landlord was given a substantial direct payment of housing benefit because Ms C was more than eight weeks in arrears of rent. Ms C disputed that she had had a live claim for benefits while she was working, and considered the payment to her landlord had been inappropriate. Removing Ms C's live claim then created an overpayment of housing benefit, meaning that she was being held accountable for a large repayment, which she said would cause her financial difficulty. After Ms C met a senior member of staff, the benefit account was cleared of the outstanding balance, at a late stage of the council's consideration of her complaint. Ms C made three complaints to us. Our investigation did not uphold her complaints that her concerns about a member of staff had not been investigated appropriately and that a member of housing benefits staff had inappropriately disclosed information to the homelessness team, as we did not find evidence to support this. Our investigation did, however, find

Mr and Mrs C complained about the council's handling of an application for planning consent for a two storey extension to the house next door. They alleged that the council failed to handle the planning application appropriately. They said that the planning officer wrongly calculated the overall size of the house next door in assessing the extension; their objections were not appropriately taken into account, particularly with regard to overshadowing and light restriction to their windows; granting consent with a specific finish could only be achieved by the neighbours accessing their property; and the council failed to take into account the future difficulty of maintaining Mr and Mrs C's property. As part of our investigation we obtained independent advice from one of our planning advisers. We found that an error had indeed been made in failing to consider the earliest of several previous extensions to the property next door, which resulted in the wrong baseline being used to compare percentages. This did not, however, in the view of the planning adviser imply that consent had wrongly been granted. In general, appropriate consideration had been given to the council's supplementary planning guidance notes. We did not uphold the three other complaints. We noted that the applicant, as he was entitled to do, applied for consent to construct the extension up to the boundary but the council had, in granting consent, omitted to include a condition relating to a particular finish. We, therefore, made a recommendation about this.

Mrs C raised concerns about the council's handling of a planning application for an extension to her neighbour's house which was linked to her property. In particular, Mrs C maintained that the council had based their decision on incorrect information by assuming both properties had identical layouts, and had allowed the extension to extend down a shared boundary by more than four metres, which went against the council's local plan guidance note 7. When we investigated the complaint we asked one of our planning advisers to provide advice on the way in which the council considered the application. In particular, we asked them to consider whether the evidence demonstrated that the council had complied with the local plan guidance note. After taking his advice, we did not uphold Mrs C's complaint. Our adviser was satisfied that the council had considered the relevant material considerations in deciding that the proposal was acceptable when assessed against the provision of the local plan guidance note 7. (A material consideration is a genuine planning consideration related to the purpose of planning legislation, which is to regulate the development and use of land in the public interest). While there had been errors in the planning report, these had no material effect on the final decision to grant planning consent. We found no evidence that there were procedural omissions in the handling of the planning application. Related reading View Decision Report 201104554 as a PDF (11.34 KB) Updated: March 13, 2018

Mr C alerted his local council that his neighbour had undertaken development without planning consent. The council investigated and required the neighbour to apply for retrospective planning consent. Mr C took the opportunity to make representations about the development, and the council confirmed that these would form part of the assessment which would be carried out before the application was determined. The council notified Mr C of their decision but he complained that this had been taken without visiting his property to view the development from his perspective and said that the council had not been impartial in their handling of the matter. During our investigation we took advice from one of our planning advisers. He said that a planning officer can form a judgement about neighbouring properties from visiting the development site. Visiting every property is not practical, bearing in mind that there could be multiple objectors, and the planning adviser agreed that this was a matter for a planner's professional judgement. We did not uphold the complaint, as there was no evidence that Mr C’s representations were not fully considered, and the decision about whether to visit his property was a matter of professional judgement. Related reading View Decision Report 201200456 as a PDF (11.29 KB) Updated: March 13, 2018

Mr C lived in an old building, which was in a state of disrepair. He and other owners sought the assistance of a local councillor, who arranged for the owners to meet with council officers. The owners initially instructed a firm of surveyors whose report specified the extent of disrepair. With changes in the funding of private sector repairs taking effect from 1 April 2010, the owners agreed with the officers' proposal that the council serve a notice under section 108 of the Housing (Scotland) Act 1987. This would entitle owners to a minimum grant of 50 percent of eligible costs (less recording fee), with the possibility of a higher percentage based on an assessment of income over the previous 52 weeks. Applications would require to be submitted and approved by 31 March 2010. The notice was served in August 2009. In January 2010, Mr C applied for a grant, and declared that his then partner was resident. The council asked for her income details and Mr C supplied them in mid-February. It turned out that Mr C's partner's income had been such that Mr C's application would attract only the minimum (50 percent) grant. While the application for the grant was still under consideration, Mr C's partner left the household. Mr C told a council grant officer about this when they visited him in late March. Mr C was awarded the minimum 50 percent grant (less recording fee). Mr C was unhappy, as he felt that with his partner no longer resident, the application should only take his income into account, leading to a higher percentage of grant being awarded to him. Mr C's complaint to us had four aspects: that the council failed to provide him with clarity on his entitlement to repairs grants and how these are calculated; delayed, failed to communicate, and were inefficient in the re-assessment of his grant application; failed to deal with his complaint in accordance with their own complaints procedures; and failed to follow through with their requirement to ensure that

Mr C complained about the council's handling of a planning application for a neighbour's conservatory. In particular Mr C complained that the council failed to comply with their guidance in relation to intervisibility and window distance and as a result had failed to protect his privacy in his own conservatory. He also complained that the council had failed to take account of his objections about privacy and overlooking, in that they had failed to take action when his neighbour had reduced in height the planting that had screened one of the windows in the conservatory. We did not uphold Mr C's complaints. Our investigation found that the council's guidance was intended to be just that - guidance - and that planning officers were free to use their professional judgement when processing planning applications. In this case the council had explained why, in relation to conservatories, they had decided that the guidelines regarding intervisibility and window distance could be relaxed. We found no evidence that the council did not take into account Mr C's objections to the planning application. They had also explained as the planting was not required as a planning condition they could take no action when Mr C's neighbour reduced its height. Related reading View Decision Report 201101662 as a PDF (16.94 KB) Updated: March 13, 2018

Mr C complained about the condition of the road outside his house and the council's failure to appropriately assess it and prioritise it for re-surfacing. He was also dissatisfied with the way the council dealt with his complaint. We did not uphold his complaints as our investigation found that the council had followed the appropriate procedures with regard to both the road and the handling of Mr C's complaints. Related reading View Decision Report 201004424 as a PDF (13.34 KB) Updated: March 13, 2018