SPSO Individual Decisions

Ms C, who was a homeless applicant, was offered and accepted the tenancy of a council house. She subsequently reported a number of defects and made a number of requests for repairs, most significantly with respect to smells in her wet shower room, the operation of the central heating, a leaking roof and poor drainage in the rear garden, before applying for a transfer some two months after moving in. Ms C complained that the council unreasonably refused to carry out remedial work to bring her home up to the required housing standards. Our investigation found that Ms C had accepted the house on the basis that it met her personal requirements, and the council explained that when it was allocated to her they considered it to have been of a lettable standard. After she moved in, Ms C had made a number of requests for repairs, and other repairs were requisitioned by council officers. We did not uphold her complaints, as our investigation found no evidence that the house did not meet the requisite letting standard when allocated to Ms C or that remedial work was required to bring it up to standard. Related reading View Decision Report 201205210 as a PDF (11.11 KB) Updated: March 13, 2018

Ms C raised objections with the council about the proposed building of a house in the area beyond her garden. One of her objections was in relation to the distance between her house and the proposed house. A council report to the planning committee said that revisions to the application had ensured a minimum separation distance of 15 metres from the nearest house. The committee considered and approved the application. Ms C complained to the council that there were less than 15 metres between her house and the proposed house and that no planning conditions had been made to address this. The council's response acknowledged that the distance quoted in the report was incorrect and apologised for this but noted that the scale drawings showed the correct distances and had been available at the committee meeting. We took independent advice from one of our planning advisers, who reviewed the information, including the committee report and layout plan. He said that accurate distance statements existed elsewhere in the report and in the drawings, and explained that it was clear from the papers presented to the committee that the proposed development was not square on to Ms C's property. His view was that the committee was most unlikely to have been misled by the error. The council had acknowledged the error and, therefore, we upheld the complaint. However, in light of the fact that the council had already apologised to Ms C, and that the adviser felt that it was most unlikely that the committee would have been misled, we decided that no recommendations were needed. Related reading View Decision Report 201302595 as a PDF (11.31 KB) Updated: March 13, 2018

Mr C complained about the council's decision to reschedule road resurfacing work. He complained that they had not recorded the feedback on which their decision was based, or recorded the decision. Our investigation, however, found no evidence that the council had any obligation to record every piece of feedback received or every operational decision made. Related reading View Decision Report 201301789 as a PDF (10.72 KB) Updated: March 13, 2018

Mr C complained on behalf of his daughter (Ms A). Ms A has a disability and Mr C is her main carer. When Ms A presented herself to the council as homeless, they placed her in temporary accommodation. Mr C was concerned that the accommodation was not suited to his daughter's needs and he was also unhappy as he felt that the council did not attend appropriately to problems that Ms A encountered while in that accommodation. We upheld Mr C's complaints. Our investigation found that the council had allocated Ms A a temporary property which, in the circumstances, was the most suitable one available. There had, however, been a delay in providing further required adaptations. The council had recognised that they did not carry out equality impact assessments on their temporary accommodation, and had since put this in place. They had also added a new unit to their temporary accommodation facilities, fitted with aids and adaptations. We also found that although the council had responded reasonably when repairs were reported to be needed, there had been a problem with accumulation of rubbish outside the property, which had resulted in a number of problems for Ms A. We noted, however, that the council had taken appropriate action to stop this happening again and so we did not find it necessary to make any recommendations. Related reading View Decision Report 201103811 as a PDF (11.24 KB) Updated: March 13, 2018

Mr C was concerned that a neighbour’s CCTV cameras appeared to include his property in the field of vision. He was not satisfied with the way the council looked into his complaints about the matter. Mr C said the council gave him conflicting information about the cameras, and about the law relating to these, and whether or not planning permission or a certificate of lawfulness was required. He was unhappy with the way the council had taken the matter forward and with the information he was given and brought the complaint to us. We did not uphold the specific complaints Mr C brought to us, but were critical of the council for an apparent lack of transparency. We said they should have verified information rather than making assumptions, and we made recommendations for improvement.

Mr C complained that the council failed to take steps to stop his neighbour from building a shed and decking area which did not have planning permission. When the neighbour then applied retrospectively for permission, Mr C complained that the council accepted poor quality drawings and plans relating to the proposal, that the officer who granted consent failed to carry out a site visit and failed to check the dimensions of the building after it was built. Mr C was also concerned that the building exceeded the permissible dimensions. Having considered the background information, we found that when Mr C reported to the council that his neighbour was building in his garden, the council promptly carried out a site visit and, having reviewed the construction of a large garden shed, advised the neighbour that planning permission would be required. We noted that by requiring the neighbour to make a retrospective planning application, the council were giving them the opportunity to have the merits of the development considered by the planning department. We found this entirely appropriate. To seek to have the development removed, when it was possible that planning permission would be obtainable, would not have been a reasonable course of action for the council to have taken in this case. We did not uphold Mr C's complaints. Whilst the drawings which were submitted for the garden shed were not of a quality which would be produced by an architect, we found that they were sufficient for the type of development proposed, and complied with the relevant regulations. The council also provided evidence that they had visited the site and measured the shed. They were satisfied from this visit that the building was constructed in accordance with the approved plans. Although the officer who granted planning consent had not visited the site, a report of the development was produced by a fellow officer who had. Finally, we found no evidence to suggest that the shed exceeded any

Mr C lives near an open cast coal site which has been subject to several applications for planning consent, covering specific areas of the site. Mr C complained that the council had inappropriately permitted overnight working by the operator on part of the site that was only authorised for 12 hours’ day-time working, and failed to adequately investigate his complaint about work starting early. Mr C also complained that when the latest application for planning consent was made, the council unreasonably refused to allow members of the local community to address the planning committee. Our investigation did not uphold any of Mr C’s complaints. Our investigation found that it had not been established that the operator was working overnight in an area of the site that only had planning consent for day-time working. The council had found that early morning site noise was explained by the operator as being linked to having drivers and other staff in place to start work at 07:00, and the council did not regard that to be a breach of the relevant planning condition. In refusing the request of residents' representatives to be heard before the committee considered the most recent application, officers had complied with the council’s published guidance (which allows third parties to address the committee only where there is a substantial body of objection to the matter under discussion). Our investigation did not uphold Mr C’s contention that this was discriminatory to objectors in rural areas. We did, however, make a recommendation in relation to Mr C's concerns.

Mr C damaged the wheel and tyre of his car when he ran over a pothole in a minor road near his home. He made four complaints. The first concerned the processing of the claim he submitted to the council, which their loss adjusters had initially refused after it was passed to them to determine. The other three complaints related to the council’s responses or lack of acknowledgement and response to further reports of road defects and drainage problems at other locations near Mr C’s home. Our investigation did not uphold any of Mr C’s four complaints. On the first, although the loss adjusters at first refused Mr C’s claim, the council had reconsidered the information and told them that it would be appropriate to make an offer of settlement. Mr C had refused the first offer but accepted a revised offer and was aware of his ability to raise a small claims action in the sheriff court. On the second complaint, the council had no logged record of an earlier contact from Mr C about a road defect in a particular place. When Mr C raised the matter by email several weeks later, the council acted appropriately. On the third complaint, relating to three other places, our investigation found that the council’s responses were reasonable. Finally, we did not uphold the complaint that the council failed to respond appropriately to Mr C's reports of road defects. Reports by members of the public were supplementary to the council’s inspection regime and were used to make the council aware of emerging defects. Related reading View Decision Report 201203025 as a PDF (11.39 KB) Updated: March 13, 2018

Mr C lives near an open cast coal site which has been subject to several applications for planning consent covering specific areas of the site. Mr C made three complaints about the council's recording of operational complaints made by residents and the council's investigation of issues of dust and noise emissions from the site. He also complained about the council's failure to review relevant planning conditions to ensure effective monitoring. Our investigation did not uphold any of Mr C's complaints. We found that the council provided a reasonable explanation of how reports of noise nuisance and dust emissions and complaints were recorded by the relevant planning and environmental services. We found that the council responded appropriately to a specific complaint of dust emissions in March 2012 and with regard to a query made by Mr C in submitting photographic evidence. We also found that, when noise complaints had been made, these had been brought to the operator's attention. A sizeable number of mitigation measures (actions to reduce the noise or the impact of the noise) had been installed. Despite these, Mr C and other residents had continued to make complaints of inappropriately loud noise levels, which the council had investigated. In the autumn of 2012 the council sited noise equipment in Mr C's neighbour's property and the initial results suggested to the council that further controlled monitoring was required. At the end of our investigation the results of this monitoring were still awaited, and so we made a recommendation relating to this.

Mr C complained that the council's planning department had not taken action to prevent his neighbour from erecting a garden shed in the wrong place. He felt the council should have taken earlier action because Mr C had made it clear to them where his neighbour had erected an area of decking, which would later be used as a base for constructing the shed. The council explained their role in planning enforcement and advised that at that stage there was no breach of development control that would allow them to take action. When Mr C's neighbour did build the shed in the wrong place, the council promptly took steps to ensure that it was relocated to the site approved under a certificate of lawfulness. Having considered the council's response to Mr C's complaint and their actions, we were satisfied that they had acted appropriately. Related reading View Decision Report 201203022 as a PDF (11.1 KB) Updated: March 13, 2018

Ms C inherited a property from her mother, who had died unexpectedly. Unable to sell it, Ms C decided to rent the property out. She complained that the council had unreasonably held her liable for council tax during periods for which exemptions should have been granted. She said the council had pursued her relentlessly and had taken recovery action unreasonably when she had already provided all the information they had asked for. We upheld all Ms C's complaints, as we agreed that the council took too long to resolve this. They missed the opportunity to reply to letters from Ms C in which they could have clarified that information, which Ms C clearly believed had been sent, had not in fact been received. We concluded that the council were also responsible for creating unreasonable confusion. Not only had they failed to clearly explain that information had not been received when Ms C repeatedly said it had been sent, they requested information which had already been provided, and did not send the correct exemption form. We concluded that the council should not have pursued debt recovery action when they had missed an opportunity to explain clearly to Ms C what information they still needed from her.

Mrs C complained about the way the council investigated complaints of antisocial behaviour made against her and her family, and also about the way the council investigated complaints that she and her family made about their neighbours. We did not uphold Mrs C's complaint that the council had unreasonably instructed her neighbours to make complaints against her family, as we found that the council followed their own procedures by issuing incident diaries to neighbours who had made complaints. We also did not find any evidence that the council had encouraged complaint making in the way Mrs C alleged. We did uphold the complaint that the council unreasonably issued letters about starting antisocial behaviour investigations into Mrs C and her adult children. We found that the council had not done this within in a reasonable time frame, considering the date the last complaint was made and the date the letters were issued. We did not, however, uphold the complaint that that the council had failed to investigate complaints of antisocial behaviour made by Mrs C and her family. We found evidence that the council recorded these, carried out investigations, and wrote to Mrs C and her husband explaining the results of the investigations.

Mr C complained that the council had not taken into account his mother’'s (Mrs A's) views and wishes when they decided to defer her application for sheltered housing for six months. We found that the social work department took this decision reasonably based on Mrs A's poor health, the fact that the decision would be subject to constant review given Mrs A was in hospital and thereafter in a nursing home, and that the application could be immediately reactivated should Mrs A's health improve. There was also evidence that Mrs A was assessed by a medical officer and a social worker, and had been found not to be able to make decisions about her own welfare at that time. We noted, however, that the council had sent a letter to Mrs A's home address referring to 'her' recent request to defer the application. This was inaccurate, as Mrs A had not made the request, and we asked the council to ensure that in future their correspondence was accurate. Mr C also complained that the lock on his mother's council house had been changed against her wishes. The council explained they had changed the lock on instructions of a family member holding Mrs A's power of attorney. (A power of attorney is a legal document that appoints someone to act or make certain decisions on behalf of the person who has granted permission for this.) The council had been provided with the power of attorney documentation, and had accepted that that person was acting on Mrs A's behalf. They also provided different documentation which showed that Mrs A had asked the council to correspond with only that family member in relation to her affairs. On this basis, we found the council's actions in following the instructions of the power of attorney to be reasonable, and did not uphold the complaint. Related reading View Decision Report 201200414 as a PDF (11.51 KB) Updated: March 13, 2018

Ms C entered into a tenancy agreement, but almost immediately there were problems with the property and the landlord. These were made worse when a technical fault meant that her housing benefit was delayed. Ms C considered that the council had not been helpful to her when she approached them and that they had inappropriately given information to her landlord. She complained to them about this. The council investigated, accepted that her concerns had not been referred to the correct department as early as they should have been and took steps to ensure there could be no repetition of this. Ms C was dissatisfied and complained to us. We agreed that the council had not referred her concerns to the correct department as early as they should have and noted that the same issue had arisen in dealing with her complaints. We, therefore, upheld her complaint, but as the council had taken action to change this for the future, we made no recommendations. Related reading View Decision Report 201200189 as a PDF (11.09 KB) Updated: March 13, 2018

Mr C had a long-standing problem with alleged antisocial behaviour from his neighbour, which he had reported to the council. He met with investigators from the council's antisocial investigating team twice to discuss his ongoing concerns. He complained to the council about the way in which the investigators acted towards him during those meetings. He later complained to us about the council's investigation of his complaints. Mr C's complaint concerned members of the council's staff and, as such, the council did not disclose to him details of the findings of their investigation. They considered this to be an employment relations issue and said that the outcome of their investigation was protected by data protection legislation. We were not critical of the council's position on this, which was reasonable, and we were generally satisfied that steps were taken to investigate the issues and action was taken as a result of that investigation. That said, we found that there were significant delays throughout the investigation, Mr C was not kept informed about the reasons for these delays as we would expect and the council failed to advise Mr C of the final outcome of his complaint. We upheld Mr C's complaints and made a recommendation.

Mr C lived in a ground floor property next to a secondary school, a sheltered housing and day care complex, and an area of open ground (the plot). The plot had previously contained a pond with fluctuating water levels. This area was used to store materials for the construction of the sheltered housing and day care complex. Some three years later, according to Mr C, the plot was filled in and used as a site compound and storage area by contractors employed by a consortium that were redeveloping the school. Mr C had flooding problems at his home, and traced the start of them to the time when the plot was filled in. Mr C complained that the council acted unreasonably in allowing a company contracted by them to infill a site, resulting in severe flooding to his property, and that the council then failed to take adequate action to resolve the flooding problem. We did not uphold Mr C's complaints. Our investigation found no evidence that the council were told about any proposal to infill or use the plot in conjunction with the redevelopment works at the school. On the second complaint, it was evident that after being alerted to significant flooding the council put in place extensive measures to prevent a recurrence. Related reading View Decision Report 201103741 as a PDF (11.27 KB) Updated: March 13, 2018

Mr C complained that he and his wife (Mrs C) had experienced antisocial behaviour from their neighbours for a number of years. This included dog barking and noise. They were unhappy that the council had not taken action against these neighbours. Mr and Mrs C were also unhappy about a warning letter that the council sent to them about their own behaviour in 2009. They said they had not seen this and were unaware of it until 2011. Mr C felt that it had been issued without proper investigation and in the absence of any evidence against them. In our investigation we considered events from 2008 onwards. We considered the council's response to our detailed enquiries, and how they had dealt with Mr and Mrs C's complaint. We reviewed their investigations and examined relevant policies and procedures, including the council's antisocial behaviour policy, keeping of pets policy and complaints procedure. Having considered all this information, we did not uphold Mr C's complaint about the council's actions or the warning letter. We found that they appropriately investigated Mr C's complaints according to their antisocial behaviour policies and took adequate action about his complaint. We also found that the warning letter had been correctly issued. However, our investigation revealed that the council had not followed the relevant sections of the keeping of pets policy that related to keeping more than one pet. We, therefore, upheld this aspect of the complaint about the lack of explanation of the situation regarding the neighbours' dogs.

Mrs C raised a number of issues about the siting of a new boiler house close to her property. This was as part of works being carried out by the council to replace the heating system serving a multi-storey block. In particular, Mrs C complained about the consultation process which led to the positioning of the boiler house. However, before we completed our investigation, Mrs C contacted us and withdrew her complaint. We, therefore, did not reach a decision on it. Related reading View Decision Report 201105126 as a PDF (10.89 KB) Updated: March 13, 2018

Mr C complained that the council did not ask for his permission before authorising the building of an access ramp for a neighbour, which affected Mr C's garden path. He also said that they had not responded to his complaint about the member of staff who authorised the work, and he was unhappy with the council's complaints handling. He said that there was delay in resolving a problem with a leaking pipe, which he believed was associated with the work. Mr C also complained that the council unreasonably told him to resolve this with the contractor, rather than with them, and did not honour their commitment to restore his path to its original condition after the ramp was removed. Finally, he said that he had been denied a right of review under the social work complaints procedure. Our investigation found that the council had already investigated and apologised to Mr C for failing to obtain his permission before the work began. They had acted on his complaint about a member of staff, but did not record or follow up on it, so we upheld that complaint. We did not uphold the complaints about the problem with the leaking pipe, and that the council unreasonably instructed Mr C to resolve the matter with the contractor. The evidence showed that the council had not delayed in responding to Mr C's complaint nor had anything gone wrong in their handling of the matter. We also did not uphold the complaint that the council failed to restore Mr C's path after the ramp was removed. We found that they had restored his path and any dispute about liabilities that he claimed arose from that work was not a matter within our remit. However, we upheld Mr C's complaints about the delay in responding to his complaint, and about being denied a right of review. Whether Mr C should have been allowed to appeal through the statutory complaints procedure is a matter of interpretation of the law and we could not comment on this. However, we did find fault in the council's handling of the complaint.

Mr C bought a house in a small rural development of five houses. The property company that built the development used part of an adjoining field to store containers and building equipment. After the last of the residents moved in (in autumn 2009) they pursued with the council the unsightliness of the storage area. The council served an enforcement notice giving the company the minimum 28 days to stop using the site as a builders' yard and to remove all containers, building materials, plant and machinery. The company appealed to Scottish Ministers. They dismissed the appeal but gave the company six months to comply. That period ended in December 2010. The council continued to pursue with the company the removal of remaining items. Mr C took his complaint back to the council and by the summer of 2011 the last of the items had been removed. Against that background, the Procurator Fiscal indicated that he would take no action against the company. As the council had continued to pursue the matter throughout the period to a successful conclusion, our investigation did not uphold Mr C's complaint that the council failed to ensure that the site was cleared to an agreed level in a timely manner. Related reading View Decision Report 201102970 as a PDF (16.86 KB) Updated: March 13, 2018

Ms C complained that the council failed to take action to stop her neighbour from paving a grass service strip which formed part of the road verge. This strip lay between the homes of Ms C and her neighbour. Ms C pointed out that the title deeds to the properties in the estate prevent residents from paving these areas. The council explained to Ms C that, from a roads authority point of view, the works carried out were of a reasonable standard and would not prevent access to services. As a result they were of the view that they had no responsibility to require the neighbour to removed the paved area and reinstate the grass. The council explained that this was a private legal matter. In our investigation, we reviewed the roads legislation and design guidance and satisfied ourselves that the council were correct in their view and that they did not have any additional responsibility to require the neighbour to reinstate the grass. We also agreed that this was a private legal matter. Related reading View Decision Report 201103230 as a PDF (16.73 KB) Updated: March 13, 2018

Mr C submitted a medical assessment form for priority housing to the council. He explained that the property where he was living was unsuitable for his daughter's complex health needs. Just under a month later, Mr C was told that the medical adviser had determined that an award of Serious Medical Need priority was appropriate for their situation. Mr C appealed this decision some three weeks later. The council upheld the appeal and awarded Mr C Urgent Medical Need priority, but not until over four months after he submitted his initial appeal. Mr C complained about the delay in the council reaching their initial decision on his application and also of the delays in notifying him of the outcome to the stage one and two appeals he made. Mr C also complained about the council's failure to provide him with adequate information about how the initial decision could be appealed; the lack of reasoning given by the council to initially award him Serious Medical Need; and the lack of explanation given by the medical adviser in not overturning this decision after reviewing his stage one appeal. Mr C further complained that the council failed to backdate the Urgent Medical Need award to the date of his original application. We upheld most of Mr C's complaints. Our investigation found that, although the council gave justifiable reasons for the delay in dealing with the stage one appeal, there had been excessive and unreasonable delay in dealing with the stage two appeal. We did not consider that the council failed to provide Mr C with adequate information about appealing the initial decision. However, we found that they had not given clear and detailed reasons for initially awarding Serious Medical Need, nor had the medical adviser explained the reason for not overturning this decision after reviewing the stage one appeal. In addition, the council had initially backdated the Urgent Medical Need award to the date which the stage two appeal had been received instead of the date the

Mr C's daughter was taking music lessons at school. When she started, the lessons were free but, unknown to Mr C, the council had already decided that they would begin to charge for them at the start of the next school year. Mr C complained that the council unreasonably failed to tell him that in future there would be a charge, which he could not afford, and said that he was out of pocket as he had bought his daughter an instrument and sheet music. He said that he would not have done that if he had known that the council had already decided to start charging. He also complained that the council failed to consider the issue of inclusive education in their impact assessment on a proposed efficiency savings policy (which included the introduction of these charges). Our investigation found that the council did not tell parents about the charges until finalising the administrative and income collection processes for them, some four months after taking the decision. We upheld Mr C's complaint as we found it unreasonable that the council did not tell parents who applied for free music tuition in the preceding months that a charge would apply from the start of the new school year. We considered whether we should recommend that they recompense Mr C for the cost of the instrument and music, but decided that they should not, as other alternatives were available, and the decision to buy the items was clearly his choice. On inclusive education, we considered that the council's impact assessment took account of equalities legislation and community relations. The council explained that there is normally a charge for music tuition for pupils who are not studying for Scottish Qualifications Authority (SQA) music qualifications. Mr C's daughter was not studying for such a qualification. Although, therefore, Mr C felt that his daughter was excluded on ability to pay, there was in fact no requirement for the council to provide free tuition outwith the SQA qualification. Related reading

Ms C complained that the council evicted a tenant following investigations into allegations of antisocial behaviour and then some time later allowed the tenant to return to the property. Ms C said that she received no explanation from the council about why this happened. The council told Ms C that they had not evicted their tenant but had taken action against her in connection with non-occupancy of the property. When we investigated this complaint, they explained to us that they had put in place a number of measures in an attempt to address the antisocial behaviour but that they were limited as to the information they could provide to Ms C and her neighbours. We explained to Ms C that for reasons of confidentiality we could not provide her with all the details the council had given us. After considering the evidence, however, we were satisfied that the neighbour was not evicted and that the explanation provided by the council for the actions they had taken was appropriate. Related reading View Decision Report 201103131 as a PDF (16.75 KB) Updated: March 13, 2018

Mr C has health problems and he found his contact with the council difficult. He complained that when the council pursued him for council tax arrears, they failed to take into account in the payment plan offered to him that he was on council tax benefit. He also complained that the council did not properly investigate his complaint about the handling of his council tax account and the attitude of staff. Mr C told us that it would solve his complaint if agreement could be reached with the council on a payment plan which was reasonable, because it took account of his circumstances, and if they looked into the handling of the matter. The council offered to find a way of resolving the complaint by meeting with the complainant, or some other form of communication if this was more acceptable to him. Mr C agreed to this suggestion and we closed our file on the basis that a resolution was being pursued by the council. Related reading View Decision Report 201100605 as a PDF (13.72 KB) Updated: March 13, 2018