SPSO Individual Decisions

Mr C had lived in his parents' council house for many years with his wife (Mrs C), but did not become the tenant until after his father died in February 2007. This was after the modernised right to buy a council house was introduced in the Housing (Scotland) Act 2001. This reduced the maximum discount that could be given (to people who became tenants after September 2002) to 35 percent or £15,000, whichever was less. When Mr C took over the tenancy he asked a council officer if he could apply to buy the house. She wrongly told him that as a new tenant with a modified right to buy, he would have to wait five years. Four years later, in 2011, Mr C wrote to a senior housing officer asking again about this. In replying, the senior officer repeated the first officer's error that Mr C had to wait five years before applying. Seven months after that, Mr C discussed the matter with a housing manager, but they did not correct the previous misinformation. The council then began a consultation exercise on designating the whole of the council's area as having pressured area status (removing a tenant's general right to buy under the modernised scheme) and this came into place on 1 February 2012. Under these circumstances, should they wish to sell a house, the council have to apply to Scottish Ministers for consent for a voluntary sale. Mr C then found out that he could have applied to buy his home as soon as he became a tenant. He formally complained to the council that he had been given incorrect information three times, and that the general right to buy had since been removed. They upheld his complaint; and eventually agreed with Mr C that he would allow access to have his home valued, and that they would be prepared to make the case for consent to sell to him at the £15,000 maximum discount with an allowance for rent paid from March 2011. Mr C, however, thought that the remedy for his complaint did not go far enough and that the allowance for rent should extend bac

Mr C applied for listed building consent to replace the original sash and case windows and skylights with double-glazed units of the same design. The owners of a neighbouring property also applied for consent for similar changes. Mr C complained that, whilst his neighbours were quickly granted permission to upgrade their windows, his application was rejected. He did not feel that the council considered his application fairly, or on a consistent basis with his neighbours' application. Our investigation found that the two applications could not be directly compared. The neighbouring property's windows had been replaced in the past with units that were not in keeping with the original design of the building. Guidance issued by Historic Scotland promotes the preservation of original designs and materials and the council, appropriately, approved the neighbour's plans to reintroduce windows that were of a similar design to what would originally have been used. In Mr C's case, the council were not convinced that his windows could not be refurbished and kept in their original form. We were satisfied that on more than one occasion they invited Mr C to provide evidence that replacement was required, but he was unable to do so. Mr C had pointed out that he appealed the council's decision to the Directorate for Planning and Environmental Appeals (DPEA), and it was ultimately overturned. The DPEA decided that the Historic Scotland guidance did not have to be applied rigorously in Mr C's case, as his application provided an opportunity to bring uniformity back to an arrangement of windows of mixed design. We viewed this, however, as an example of the planning system working effectively, rather than of the council acting inappropriately. Although there was an initial misunderstanding about the age of some of the windows, we did not find that this affected the council's decision, and we found no evidence that it was based on flawed or incorrect information. Rather, it wa

Mrs A was unhappy with the council's handling of a planning application for an extension to a neighbouring property. Her daughter (Miss C) complained on her behalf that council planning officers had considered the application, under delegated powers. She said that the application should have been referred to a council committee as she understood that it related to land that was in council ownership. She also complained that the council had failed to consult with those neighbouring the site, and unreasonably allowed the extension to be built over a culvert (a drain or covered channel that allows water to flow under a road) in a flood risk area. After taking independent advice from one of our planning advisers we did not uphold Miss C's complaints. We found no evidence that the council had acted unreasonably in approving the planning application under delegated powers. They had provided Miss C with documentation showing that they did not own any of the land to which the planning application referred. We were also satisfied that the council had carried out the neighbour notification process appropriately and had not needed to consult with some organisations that Miss C thought should have been involved. Finally, we noted that there was no presumption against development over culverts such as this one, and that the existence of the culvert had been fully taken into account during the planning process. Related reading View Decision Report 201104865 as a PDF (11.27 KB) Updated: March 13, 2018

Mr C raised a number of issues relating to the council's handling of a planning application granted in 1988/89 for a housing development. The development turned out to be liable to flooding, and Mr C was concerned that the council had not taken this into account when considering the suitability of the site for development. He also said that, although the council had advised him over the years that a flood mitigation scheme (to try to protect the houses built on the lower level) was to be implemented, this did not happen and he had now been advised that no such scheme would be implemented. During our investigation we found that, at the time of the development, planners did not have any responsibility to consider flooding issues and that it was not until some years after the development was completed that plans and policies were put in place to deal with flooding. We also found no evidence that the council had confirmed that a flood mitigation scheme would be implemented and noted that they had said that any such scheme would be subject to its economic viability. Related reading View Decision Report 201200200 as a PDF (11.1 KB) Updated: March 13, 2018

In January 2009, an inquiry reporter decided to uphold a council decision to refuse planning permission to build houses in a long established area of open space behind the homes of Mr and Mrs C and their neighbours. When, in March 2012, the council granted planning consent for residential development of the same site, Mr and Mrs C and their neighbours were unhappy and made nine detailed complaints to the council and then to us. Seven of these related to the report of handling of the later application that council officers presented to members of the council committee. We upheld three of the seven complaints about the report of handling - in relation to failure to refer to a planning advice note and to fully address and consider the implications of the reporter’s dismissal of the appeal on the first application. The other two complaints, which we also upheld, related to a lack of proper evaluation of the loss of open space that implementation of the proposals would entail and unreasonable delay by the council in investigating the complaints.

Mr C complained that the council had not notified him of two separate planning applications (one from 2009, the other from 2012) for neighbouring properties. In their response to his complaint, the council explained that it had been the applicant's responsibility to notify neighbours for the 2009 application. However, by the time the second application was submitted, the duty to notify had moved from the applicant to the council. In terms of the 2009 application, the council explained that they did not have a duty to 'look beyond' the applicant's self-certification, nor had there been anything in the paperwork that would reasonably have caused the planning officer to question things. In terms of 2012, the council explained that they had advertised the planning application in the local newspaper and that notice had been served on one of Mr C's tenants (who lived on a property on Mr C's land). Although the tenant passed the notification on to Mr C and he had been able to submit his objections, Mr C felt that, in both instances, the council had failed in their duty, and he was not happy with the way they had handled his complaint about this. We took independent advice from one of our planning advisers. He reviewed the council's responses and confirmed that they had outlined the position correctly, and had taken the appropriate steps in 2012. As such, we did not uphold Mr C's complaint that the council had failed to notify him. Neither did we find that the council had handled his complaint inappropriately. Although they had taken longer than they would aim to in responding to Mr C's complaint, their responses had reasonably addressed his concerns, and they had contacted him to let him know that the matter was still ongoing.

Mr C complained about the conditions imposed on his licensed premises, and about how the council handled his complaint about this. We explained to Mr C that we could not deal with his complaint about the conditions, which had already been the subject of legal proceedings. We did investigate his complaint about the complaints handling, and found that there had been several shortcomings. The council did not adhere to their complaints procedure or inform Mr C of their intention to deviate from their usual process. They took far too long to respond to his complaints and on some occasions failed to acknowledge his letters. They also did not tell Mr C that he had a right to complain to the Standards Commissioner.

Mr and Mrs C live next to the site that was chosen for an integrated nursery, primary and secondary school academy with community leisure facilities, including an all-weather pitch and multi-use games area. Planning consent was obtained in November 2006 and the campus opened for school use and evening and weekend hires in late 2011. Mr and Mrs C complained from the outset about noise, foul language and rude behaviour in the games area, and, after evening hires of the games area for hockey, football and rugby were restricted, also complained about similar noise from users of the all-weather pitch. They told us that the council failed to take reasonable steps to provide an accurate description of the development during pre-development consultation; and failed to take reasonable action in respect of their complaints of noise and anti-social behaviour. Our investigation found that the consultation took place in June 2006, with the application for planning consent. The evidence we saw showed that the intention to locate the games area near Mr and Mrs C’s home was disclosed at the outset and in the officer’s report on the application, and we did not uphold this complaint. The council had, during their consideration of the complaint about the noise, accepted fault and apologised. Their second stage response also accepted fault and upheld six of nine points that Mr and Mrs C raised. However, Mr and Mrs C remained unhappy, as they said there was a lack of effective action by the council to reduce the nuisance and distress they were suffering. Our investigation found that problems have continued and the council have not done all they could to resolve this. We upheld this complaint and made recommendations with the aim of addressing this.

Ms C, a mature student, started a postgraduate degree. She had been living on her own in a two bedroom private let and had previously received 25 percent single person’s council tax discount. When she started studying, she applied for, and was granted, exemption from council tax during her studies. In November 2010, with the written consent of her landlord she sublet the extra bedroom to a lodger. The lodger was not a student but applied for, and was granted, housing benefit which continued until August 2011. Ms C did not ask the council about how having a lodger might affect her student exemption. In July 2011 after completing her second year of studies, Ms C herself applied for housing benefit, and it was then held that she as tenant was responsible for full council tax (less 25 percent single person’s discount) dating back to when her lodger arrived. By the time that the council had calculated this and told Ms C about it, however, her lodger had left. Ms C also moved out in November 2011 but the council then pursued her for substantial arrears of council tax for 2010/11 and 2011/12 and for an amount of overpaid housing benefit. When Ms C pursued this with the council before submitting a complaint, they told her that they had issued a demand for the council tax in January 2011. They could not, however, provide a copy of the relevant demand or covering explanatory letter. Ms C made two complaints about the council: that they unreasonably failed to remove a student exemption from her council tax and notify her at the time of the revised council tax charge; and that they did not make it clear to her that subletting a room in her flat would affect her claim for housing benefit. Although it is generally a claimant's responsibility to tell the council about potentially relevant changes, we considered that the council’s delay in notification meant that Ms C could not realistically pursue her lodger for the amount due. We upheld this complaint and made a recomm

In June 2011, Mr and Mrs C submitted a planning application to build a house in their garden. They complained that planning permission was refused although at the pre-advice stage, the council did not identify any concerns. Mr and Mrs C also said that an application in principle had been made in accordance with council officers' advice. After refusal, Mr and Mrs C asked for the decision to be reviewed but this was also refused. They complained, in general, about the way in which the council dealt with their applications. During our investigation we obtained independent planning advice from one of our planning advisers, and considered the complaints and planning files. We upheld three of Mr and Mrs C's six complaints. Our investigation found that, throughout the process, Mr and Mrs C had the benefit of planning advice as they had engaged their own planning consultant to assist them with their application. Notwithstanding the advice they said they were given by the council, it was clear that the only way to determine an application was to submit it. Our investigation showed that there was no evidence to suggest that they had been encouraged to submit an application in principle. However, when the application came for validation, our planning adviser said that the council failed to deal with it in terms of the appropriate planning legislation. They also uploaded irrelevant information onto their planning website. However, at the review stage the council followed government guidance. When Mr and Mrs C were unhappy with the outcome and complained, we found the council failed to respond to their concerns in a reasonable manner.

Following the death of his elderly mother, Mr C was appointed executor of her estate. As beneficiary, Mr C subsequently inherited his mother's house, which he kept as a second home. During the executry period, the property had been exempt from council tax. Mr C made seven complaints against the council about delay in sending him correct council tax notices for the property for 2010/11 and 2011/12; failure to issue receipts for cheques he sent; failure to reply to correspondence, and delay in responding to his complaint and to deal with the issues he had raised. Our investigation upheld four of Mr C's seven complaints. We considered that the need for the protracted correspondence could have been avoided if the council had acted promptly, when informed of the confirmation the estate, to find out who had become liable for council tax. They did not do this and in an invoice sent to Mr C (as executor) they wrongly extended exemption of council tax, although they later corrected this. The council was, in light of that correction, obliged to collect the correct amount of council tax owing. We upheld Mr C's complaints about the failure to issue receipts or reply to letters, and about delays in the complaints process.

Mr and Mrs C were granted planning permission to build a property. As a pre-requisite to issue planning consent, however, the council decided that Mr and Mrs C had to make an education contribution. This is a payment developers must make to contribute to school provision if their development meets certain criteria. To determine whether a developer must make a contribution a method is used that involves a calculation. Mr and Mrs C disputed the calculation. They said that if the council had used another calculation they would not have to pay an education contribution. They were also concerned that the figure the council arrived at changed over the course of their application. After taking independent advice from one of our planning advisers, we did not uphold this complaint. The adviser confirmed that it was appropriate for the council to determine the method and calculation themselves. The adviser also said that the change to the figure was not unreasonable in attempting to reach agreement on a planning contribution. Related reading View Decision Report 201201910 as a PDF (11.15 KB) Updated: March 13, 2018

A firm of solicitors complained on behalf of their client (Miss C) that the council had failed to carry out appropriate neighbour notification procedures connected with a planning application for a neighbouring property. As a result, the council had not identified that Miss C should have been notified about the application. The planning application related to a site which had received planning consent in 2008 for housing development and for which a further planning application had been submitted in 2011. Miss C had received neighbour notification in 2008 but not in 2011, although the application was advertised in the press. Miss C was dissatisfied because the council did not uphold her complaint because there was no statutory requirement for them to notify her under the current regulations. However they also told her that she should still have received a notification, but did not because the planning officer failed to check that all such relevant notifications had been carried out. Our investigation confirmed that there had been a change in the regulations since the 2008 application was before the council. The council's investigation found that the complaint of failure to act within the terms of the current planning regulations and guidance was not upheld, and we concluded, after taking independent planning advice, that this was a reasonable decision to arrive at. We did, however, find inconsistency in their decision not to uphold the complaint but still find that Miss C should have been notified. However, the council confirmed that the recommendations they made as a result of their investigation had been acted on, to ensure that their procedures for neighbour notification would in future be adhered to. We were satisfied with the action taken by the council to follow up on their investigation and did not consider that any further action was required. Related reading View Decision Report 201202177 as a PDF (11.54 KB) Updated: March 13, 2018

Mr C complained that the council failed to consider well documented problems with a road when considering his insurance claims for damage to his car. On three occasions Mr C's car had been damaged by potholes and loose chippings on a stretch of the road. The road had been surface dressed by contractors employed by the council in 2010. During the severe weather of winter 2010/2011, the surface dressing had failed. One of the claims was settled, but the council's insurers passed the claim made in April 2011 to the contractor's insurers, who also denied liability and said that the council were responsible for the maintenance of the road. The final claim was made in August 2011 and the council had prepared an internal report which explained that appropriate maintenance inspections and repairs had been carried out at the relevant stretch of road over that time period. We did not uphold the complaint. We found that the council had taken into account the problems with road surface dressing, and had decided that the contractors were liable for this. We do not reach findings in relation to liability or discretionary decisions (decisions that the council were entitled to take). We did, however, criticise the council for leaving motorists in a position that meant they could not claim against either the council or the contractors as both denied liability, particularly as the council accepted there were problems. We suggested that the council as the local authority may wish to address that situation. We also found that although the August 2011 claim was dealt with appropriately, the April 2011 claim was not, because the council did not prepare an internal report. We made a recommendation in relation to this.

Mr C moved into a house in a rural location. One plot in a development next to his home was not developed at the time, and was the subject of two planning consents in 2006 for a change in house type. In early 2011 another application was made, this time to build a two storey house. The applicant described this as a modification of one of the 2006 consents, and the council described it this way when notifying neighbours of the application. Mr C complained that the information provided by the council, which said that the application was for the modification of a previous planning consent granted in May 2006, was incorrect; that the council’s response to his complaint contained inaccurate information; and that there had been a fault in the timing of advice given to the convener of the committee which determined the 2011 application. We took advice from our planning adviser. The adviser said that the description of the proposal was chosen by the applicant. He said that 'modification of a previous consent' no longer existed and officers had corrected the description to 'an application for full planning consent'. Due to the nature of the minute taking, we could not use the information in them to decide if there was inaccurate information, but we noted that there did not appear to be any evidence that Mr C was disadvantaged as a result of this. The third issue had arisen as a result of decisions on how minutes should be taken and was not specific to the complaint. Related reading View Decision Report 201103983 as a PDF (11.39 KB) Updated: March 13, 2018

Mr C complained that the condition of the footpath beside his home meant that he had difficulty in accessing his driveway. After he contacted the council about this, he had spoken to two workers marking up the damaged areas on the footpath. They suggested that he could expect it to be fixed within three weeks. When this did not happen he complained. The council accepted that the footpath was sub-standard but explained that, for budgetary reasons, they had to prioritise more significant repairs. As the condition of the footpath was not poor enough to cause any safety risk, and they were satisfied that Mr C could access his home from the public road, they could not in fact give him a time-frame in which the repairs would be carried out. Mr C also complained about his telephone conversation with a council employee who terminated the call. We did not uphold Mr C's complaints. Our investigation found that the council complied with their responsibilities in terms of roads maintenance. We considered it reasonable for them to prioritise repairs, which was a decision they were entitled to take. On the matter of the telephone call, as we did not have evidence to conclude that the call was handled inappropriately, we could not uphold this element of Mr C's complaint. Related reading View Decision Report 201200214 as a PDF (11.35 KB) Updated: March 13, 2018

Mr C acts as guardian and carer for his disabled adult son. He complained that the council did not properly investigate a complaint that he made on behalf of his son. He also said that they did not provide advice about the social work complaints procedure, by failing to tell him that he could take the matter on to a complaints review committee. We found that the council's complaints procedure was quite clear about the steps that should be taken. Our investigation, however, identified several areas where this process was not followed. These included delay in appointing an investigating officer, failure to interview Mr C, and providing him with details of the procedure only after they had sent him their decision on his complaint. We did not uphold the second complaint, as it was clear that Mr C was given detailed information about the next stage of the process, and an extension of the period to request a review. Related reading View Decision Report 201103632 as a PDF (11.18 KB) Updated: March 13, 2018

Mr C moved into a house in a rural location. One plot in a development next to his home was not developed at the time, and was the subject of two planning consents in 2006 for a change in house type. In early 2011 another application was made, this time to build a two storey house. The applicant described this as a modification of one of the 2006 consents, and the council described it this way when notifying neighbours of the application. Mr C was unhappy with the council's actions in respect of his representations about the applications and their handling of the 2011 application. He complained that because a planning officer did not return his calls he was disadvantaged when making representations, and that the officer's report to committee did not say that the owners' association had also made representations. He also said that it was not reported to the committee that work had started on the site, and felt that this should have invalidated the 2011 application from being a modification of a previous consent. We did not uphold his complaints. The council's standard acknowledgement said that those making objections could obtain information on line. We also found that the report had mentioned the representations received and these were available for members to consult. On the third complaint, our planning adviser took the view, which we accepted, that the start of work on site before the committee meeting did not invalidate the 2011 application. Related reading View Decision Report 201103824 as a PDF (11.41 KB) Updated: March 13, 2018

Mr C complained that the council had allowed upgrade works on a road in their area without instructing the inclusion of additional traffic calming measures that were agreed in 2007. The council told us that after writing to Mr C in 2007, they had reached a compromise with the developer, and agreed for an independent safety audit to be carried out on the completion of works. If the future audit identified any need for further traffic calming measures, the developer agreed to implement them. We upheld the complaint that the council failed to honour a commitment they had given Mr C. However, we noted that they had already acknowledged this and apologised for not informing Mr C of the change of plan. The council also appropriately explained the position and, as a decision had not yet been taken regarding the need for additional measures, we could not do anything further. Related reading View Decision Report 201005054 as a PDF (16.62 KB) Updated: March 13, 2018

Mr C complained that there had been unnecessary delays on the part of the council in passing his housing benefit appeal to the tribunal service. In addition, he was unhappy that the council's welfare rights team withdrew their representation just before the tribunal hearing, and without discussing the matter with him. We upheld Mr C's complaints. Our investigation found evidence of administrative delays on the council's part in passing the required information to the tribunal service. We also found that the council had explained why they had not contacted Mr C before the welfare rights team decided to withdraw their support. However, we took the view that the decision to withdraw support could have been taken much earlier, with more notice given to Mr C. As the council also explained that they have taken action to revise their procedures, we made no recommendation about this.

Mr and Mrs C bought their house in early 2010. It was part of a small, new development. The neighbouring property was occupied in late 2010 and in October that year the neighbours made a planning application for a double garage and store. Mr and Mrs C objected to this development but the application was granted. As they believed there had been errors and omissions associated with the planning process, Mr and Mrs C made a formal complaint to the council. In the meantime, the neighbours made a further planning application for alterations and for an extension. This, too, was subsequently approved by the council, subject to conditions. Mr and Mrs C continued to complain that the council failed properly to consider the applications. When we investigated the complaint we asked one of our planning advisers to provide advice on the way in which the council considered the applications. Our adviser was satisfied that the council followed the relevant process and acted appropriately. Related reading View Decision Report 201103068 as a PDF (16.71 KB) Updated: March 13, 2018

Mr C complained that for nine years he made numerous phone calls to the council's roads department about protecting his house from council waste trucks and heavy goods vehicles, which were mounting the pavement in front of his house. Mr C said he suggested that the council erect bollards to prevent this from happening but the roads department refused to do this as they felt that bollards would block the pavement for pedestrians. Mr C said the council failed to ensure that the pavement outside his home was safe or to ensure that his house was not being damaged by vibrations from vehicles bumping off the kerb. Mr C said that in the council's final response to his complaint, they apologised for failings in dealing with his case and agreed to change the route used by council waste vehicles so that they would not mount the pavement outside Mr C's home. Mr C said that on receiving the letter, he contacted the council to ask what they were going to do about non council vehicles mounting the pavement. Mr C said the council told him that the re-routing of council waste trucks was 'as far as they could go'. When we investigated the complaint, the council explained that the behaviour of those driving non-council vehicles did not fall within their jurisdiction and was a matter for the police. As the evidence showed that the council had dealt with the matters that were within their control (by rerouting the council vehicles) we did not uphold Mr C's complaints. However, as the evidence showed that the council did not include Mr C's concerns about non-council vehicles in their investigation of his complaint and did not respond on this point, we made a recommendation about this. Recommendation We recommended that the council: • apologise to Mr C for failing: i) to include non-council vehicles in their investigation of his complaint; and ii) to then explain to him in their decision letter that they had no control over such vehicles and that the matter was for the police. Related re

Mrs C's father (Mr A) lives in a very sheltered housing complex. Mrs C complained on behalf of Mr A about the council's entitlement to charge him for housing support services. Mrs C disagreed with the council's interpretation of legislation in relation to their ability to charge for services not directly provided by the council and where the council had not themselves carried out an assessment. We explained to Mrs C that it was not appropriate for us to get involved with disputes over the interpretation of legislation. Our investigation satisfied us that the council had responded appropriately to Mrs C's concerns, and that they had explained why they considered they were entitled to charge for housing support services. Related reading View Decision Report 201101698 as a PDF (16.53 KB) Updated: March 13, 2018

Ms C is the landlord of a private flat. She entered into a tenancy agreement in November 2009 with a person whose deposit was warranted by the council under their then newly introduced Rent Bond Guarantee Scheme (RGBS). The tenant contacted the council's Private Rent Sector Access Team about repairs. They inspected the flat in July 2010, informed the landlord registration service, and advised the tenant to terminate her tenancy. Ms C said, however, that she was not contacted by her tenant with regard to needed repairs. She complained to us that the council did not vet the tenant properly, did not contact her about the matter of the repairs and did not allow her input. She said that she was out of pocket as a result of the tenant's actions. Prior to complaining to us, however, she was reimbursed the full amount of the rent bond. We upheld part of Ms C's complaint as we found that the role of the council team involved was ambiguous and that she was not given the chance to resolve the matter of the repairs with her tenant.

Mr C complained about the withdrawal of a Disabled Person's Parking Blue Badge (the Blue Badge) that the council had given his autistic son, Master A. The council had given the Bule Badge in 2004, re-issued it in 2007, and withdrawn it in 2010. The council acknowledged that when the Blue Badge was previously issued and re-issued to Master A they incorrectly applied the Disabled Persons (Badges for Motor Vehicles) (Scotland) Amendment Regulations 2007. By correctly applying the legislation in 2010, Master A did not qualify for a Blue Badge. We did not uphold Mr C’s allegation that the council had refused to renew Master A’s Blue Badge. We confirmed that the legislation had been correctly applied in 2010. We noted that before Mr C brought the complaint to us the council had apologised to him that they had not correctly applied the legislation when the Blue Badge had been re-issued in 2007. Related reading View Decision Report 201004589 as a PDF (13.82 KB) Updated: March 13, 2018