SPSO Individual Decisions

Mrs C's neighbour installed a static caravan in their garden, next to her property. Planning consent was not obtained for this although the council told Mrs C that this was required under certain circumstances. The caravan was, at times, used for residential purposes, which would have required planning permission. However, although the owner submitted a retrospective planning application to the council, the use of the caravan then changed to office and storage space. This meant that planning permission was ultimately not required and the application was withdrawn. Mrs C complained that the caravan continued to be used as a residence, that a number of planning laws were not adhered to and that the council failed to take enforcement action. We did not uphold these complaints. We were generally satisfied that the council took appropriate steps to determine whether the caravan was being used for residential purposes. When this was believed to be the case, they required the neighbour to apply for planning permission. However, they advised the neighbour that it was unlikely that permission would be granted and that residential use would have to cease. The neighbour withdrew their application and stated that the caravan would be used for office and storage space, which did not require planning permission. When concerns were raised about building control issues, we were again satisfied with the investigations carried out by the council and by their decision not to take enforcement action. We were also satisfied with the council's responses to Mrs C's enquiries. Related reading View Decision Report 201103353 as a PDF (11.38 KB) Updated: March 13, 2018

Mr C said that the introduction of the 'safer routes to school' programme in his area had impacted on his access to his home. He was unhappy that a traffic calming measure had been installed in front of his driveway without prior consultation. This had seriously restricted his access to his property, and had made manoeuvering his touring caravan into the driveway so difficult that he had to sell the van. He was particularly unhappy that the council later removed a similar calming measure from outside another property in his street but refused to remove the one outside his home. Our investigation found that the calming measure had been installed by the developer of a new housing scheme and was a condition of the planning permission granted. The council said they were disappointed that the developer had not made Mr C aware of the detailed proposals, but that consultation was carried out with the community council. Although the developer had met the legal requirements for consultation, the council had in fact apologised to Mr C because he was not consulted directly. We upheld this complaint. In relation to Mr C's complaint that the calming measure caused an obstruction, we found that the access to his property had been modified but the kerb had not been dropped to match the alteration, which had resulted in restricting his access. As we found that the council had offered to arrange for the kerb to be dropped but Mr C had declined this, as well as an offer to move the double white lines painted across the driveway further back, we did not uphold this complaint. Finally, we found that in the case where the calming measure had been removed, the occupant of the property had been able to demonstrate that it caused an obstruction, which Mr C had not been able to do. We did not uphold this complaint.

Mr C complained about the council's handling of planning proposals for a new academic campus some distance from his home. A council committee granted planning approval in principle in May 2010 although the consent was not issued until March 2011. An initial application for consent for 'matters specified in conditions' was submitted in June 2011 and that formed the main basis of Mr C's four complaints. (Such applications relate to conditions attached to planning permissions in principle which require the further approval, consent or agreement of the planning authority for any detailed aspect of the development.) Mr C complained that the council provided inaccurate and misleading information about access arrangements to the campus; a council officer failed to remain impartial when providing advice to a councillor and acted unreasonably by failing to respond to Mr C's letter, and the chief executive failed to respond to Mr C's letter of complaint within a reasonable time scale. Our investigation found that the council conceded that the report on the first 'matters specified in conditions' application could have been clearer. It was not, however, acted on. The matter was put to the relevant council committee and continued, when it was re-presented in an amended form and considered along with a second 'matters specified in conditions' application. Both applications were approved. As we found no evidence of maladministration we did not uphold this complaint. Nor did we uphold the complaints about the council officer. We found no evidence to suggest that she was not impartial in giving professional advice to the councillor, and while Mr C provided evidence that he had emailed a letter to her, we could not independently confirm that she had received it. We did, however, uphold the complaint about the chief executive's response, as he accepted that it had been delayed. We did not make any recommendations as he had already apologised to Mr C for this. Related reading View Dec

Mr and Mrs C who were housing association tenants raised their concern about the condition of their back garden. A joint visit by the council and the housing association to view the condition of the garden had been carried out in 2007. The complainants were unhappy with that visit and disagreed with the accuracy of the report prepared by the council following the visit in 2007. They were dissatisfied that the council had now advised them that they would not inspect their back garden. Our investigation found that there was no evidence of maladministration in relation to the council's handling of the matter. The council's social work service had visited the property in 2006 and had made a number of recommendations to the housing association in line with their social work responsibilities. At the request of social work services the council's health and safety adviser had visited the complainants' property in 2007 and had prepared a note of the visit. This was within their remit of giving advice to social work services. While Mr and Mrs C disagreed with the accuracy of the note, the council had confirmed that the officer who had drafted the document had confirmed that it was an accurate record. We advised the complainants that, as this related to a note prepared a number of years ago and as the officer was no longer with the council, further enquiries by this office would not add to the information already available. We also found it was not within the remit of the council's health and safety service to carry out an inspection of a household at a householder's request and, as a result, the council had advised the complainants that they would not carry out a visit to their property. However, we found that discussions were ongoing between Mr and Mrs C and the housing association, as their landlord in relation to the garden. Related reading View Decision Report 201102465 as a PDF (11.43 KB) Updated: March 13, 2018

Mr and Mrs C live in a house on a coastal strip below a site that contains two plots which received planning consent in 2005 (after a successful appeal to Scottish Ministers). A subsequent application was made in 2010 for full planning permission for an amended design on these plots. As part of the 2010 application the applicant provided an overlay comparing the earlier consent with the 2010 proposal. Due to an error by the applicant's agent, first noted by a senior planning officer the day before a site visit, the case officer's report referred to the 2010 application as being at a lower height than the 2005 approval, although the finished floor levels were in fact about the same. The senior planning officer had requested an amended overlay from the developer, and this had been available to the planning committee the next day when they visited the site before deciding on the 2010 application. Mr and Mrs C made three complaints, two of which we upheld. We found that, had the error been uncovered earlier, then in the period leading up to the site visit an amended or supplementary report could have been provided (removing the references to the lower height of the 2010 proposals) and that a more appropriate methodology could have been used to demonstrate height levels at the site visit.

In the early 1990's Mr and Mrs C converted rural steading buildings to provide two houses. These are across the road from the original farmhouse, which Mr and Mrs C also own. The land surrounding all three buildings is the property of a company, which employs agents to manage the land for them. The local plan for the area originally said that for planning purposes there should be a presumption against further development except for agricultural or family purposes, but planning policy later changed, as did the council's planning guidance. In 2009, the company decided that they wanted to build houses on the land. After correspondence about what this might involve, pre-planning discussions and consultations, the managing agents withdrew an initial planning application. They applied instead for permission to build two single houses, one beside the steading and one beside the farmhouse. Council planning officers approved the application to build beside the steading, but refused the second application. It was, however, later approved with conditions, because the local planning review board overturned the officers' decision, despite objections from Mr and Mrs C and others. Mr and Mrs C complained to us that the council failed to take local planning policies appropriately into account; adopted an inconsistent approach to the applications; kept inadequate records; and made misleading or inaccurate statements. We did not uphold any of their complaints, however, as our investigation did not find evidence that anything had gone wrong in taking these decisions. The planning policy background was complex, but we found that the council had taken all appropriate matters into consideration when amending their planning guidance and that planning officers were entitled to discuss the matters with the agents, and acted consistently when doing so. We also found that the complaint about inadequate records related to a temporary difference between the paper file and electronic i

Mr C owns a holiday home, and there are two other holiday homes close by. The drainage systems for these premises empty into a Buchan trap (a device in a domestic sewer pipe to prevent vermin entering the pipe) inside Mr C's garden. If this becomes blocked, sewage floods into Mr C's garden. This happened in February 2007 and July 2011. Mr C complained that when the other properties were renovated, the council issued a building warrant (the legal permission to commence building work) failing to take into account his concerns about the drainage system. He also said that when he reported incidents to the council, they did not take action. He believed the drainage system should never have been approved and in view of his problems, the council should require his neighbour to change their system. We did not uphold Mr C's complaints. The council confirmed that when the neighbouring houses were renovated they assessed and tested the drainage systems as part of the building warrant process, and found them to be satisfactory. They were, therefore, obliged to grant the warrant. The problem with the drains appeared to be not their design, but misuse by tenants of the holiday homes, which caused blockages. The council had also said they would look into any incidents that Mr C brought to their attention, and we found evidence that they did this. However, their records showed that most recently Mr C had said that he preferred to resolve matters amicably with his neighbour. Taking this into account, the council agreed not to take any action, and Mr C had not contacted them since. Finally, Mr C said he thought the council should have made his neighbour change the drains. We found evidence that the neighbour had said they would do so if there were problems, and that their solicitor had also offered this but Mr C and his wife had refused access. In the circumstances, the council took the view that as no nuisance had been established, it was not for them to contact the ne

Mr C was unhappy when the council decided to install electric dry panel heaters in his property when his heating system failed. In particular, he was dissatisfied that he was not given the opportunity to refuse this heating system, as he said that other types of heating were available. He also complained that he was given inaccurate information about the running costs for the new system. Our investigation found that, while the council accepted that it was good practice to consult, when Mr C's heating system failed they found that there were no other viable options, so they had not discussed the matter with him. We also found no evidence that the council had provided inaccurate information to Mr C. Related reading View Decision Report 201103743 as a PDF (11.06 KB) Updated: March 13, 2018

Mr and Mrs A's solicitor complained to the council about an application for planning consent to build a house, which was made by the owner of land adjoining their property. The couple claimed that the council's registration of the planning application was not valid on several grounds, including: the exact locality of the site was not shown; the plan submitted did not show the correct access to their property and the size of the plot was wrong; no information was provided about intended water and drainage arrangements; the applicant had not described access points to the site from the road as required by regulations, and Mr and Mrs A had not been notified of the application as they should have been. Mr and Mrs A were also dissatisfied with the council's handling of their complaint and brought the matter to us. We did not uphold the complaint about the application as, on the basis of what must be provided in law, the council's guidance and the circumstances known at the time, we found no reason to find its validation unacceptable. We found that the council obtained all necessary information after checking the planning application and completed the process satisfactorily. We also found that responsibility for the accuracy of the ownership certificate, which is a prerequisite for validation, is a matter for the applicant in the first instance and the council is entitled to accept it at face value, and that neighbour notification happens after validation, not before. We found that two letters from the solicitor were not acknowledged by the council when they should have been. When the council did reply they acknowledged and apologised for failing to respond to the enquiries and then dealt with the main points that had been raised. We, therefore, upheld the complaint about complaints handling, but did not need to make any recommendations. Related reading View Decision Report 201005308 as a PDF (17.47 KB) Updated: March 13, 2018

Mr C is a commercial user of a harbour which is the council's responsibility. He said that in 2007 and 2008, he and others drew the council's attention to a derelict pontoon dragging its moorings. The council did not take action to have the pontoon removed, but in response to Mr C and others pursuing the matter they decided, as part of a general review of harbour finance, to introduce annual charges for the mooring of pontoons. Mr C was unhappy about the charges. He complained to the council that officers had ignored the communications regarding derelict pontoons and then denied them. After complaining, he remained unhappy with the council's responses, and complained to us about the charges and the council's complaints handling. We found that Mr C's complaint about the imposition of the charges fell outside our jurisdiction so we could not look at that complaint. We did, however, uphold his second complaint - that the council did not reasonably investigate his complaint after he made it to them. We found that they did not handle the complaint well at any stage.

Mr C complained about the council's handling of a claimed right of way. Mr C considered that the route in question satisfied the criteria required to constitute it as a right of way. He accepted that the question of whether the route was in fact legally a right of way was for the courts and not for our office. However, he complained to us that the council failed to follow the correct process leading up to the decision in 2006 that the route was not a right of way. Our investigation found that while the council had been unable to provide all the information considered when the original decision was taken in 2006 they had more recently considered the matter in response to Mr C's representations. We found that they had confirmed their position on the claimed right of way and had explained the reasons for their decision. We did not uphold his complaint. Related reading View Decision Report 201102720 as a PDF (16.47 KB) Updated: March 13, 2018

Mr C complained that the council unreasonably refused his son a place on the school bus. Mr C had to apply for a concessionary seat for his son, who was not entitled to free school transport if he attended a school which was not the school for his catchment area. Mr C was unhappy that the council refused his son's application. We considered the complaint, the council's responses to Mr C and his MSP, and the council and Scottish Government guidance on entitlement to free school transport when attending a non-catchment area school. We found that councils have a statutory responsibility to provide free school transport to certain categories of pupils. However, if a pupil is placed in a school as a result of a parent's placing request (ie one that is not in the relevant catchment area for where the pupil lives), they are not entitled to automatic free school transport. In cases such as these, parents must apply to the council regularly to request that they be considered for concessionary places. The council does not have a statutory duty to provide these places and they are not guaranteed. Our investigation found that the decision not to award a place on the bus to Mr C's son was a decision that the council were entitled to make, and that there was no evidence of administrative error in the way they dealt with the matter. Related reading View Decision Report 201005084 as a PDF (17.02 KB) Updated: March 13, 2018

Ms C entered into a council tenancy in 2007. Before she took the tenancy, the council had applied for and received Pressured Area Status (PAS) (which indicates that the demand for social housing outstrips supply) which meant that they had suspended tenants' right to buy their property until 2010. Ms C had, however, anticipated that after serving the qualifying five years as a tenant she would be able to buy her home in 2012. In 2009 she applied to install central heating at her own expense. She was not specifically told then that the council might apply to extend the initial PAS period. The council announced that intention in October 2009, and the Scottish Government granted a five year extension. Changes in the legislation after that allowed the council to exercise their powers to extend the period further, to 2020. Ms C complained that she had not been told of the possibility of the council applying for an extension, either when she signed for the tenancy or when she asked for permission to install central heating. The council decided to apply for an extension five months after they gave Ms C permission to install central heating. While Ms C was clearly adversely affected by this and other policy decisions, in the absence of errors in the decision-making process we could not investigate these. We did not uphold her complaints, as our investigation found that Ms C's original tenancy documents clearly stated that PAS was in place and that the council reserved the right to apply for an extension. She signed the documents and, therefore, the council clearly gave her accurate information about the position on right to buy. Related reading View Decision Report 201102109 as a PDF (17.49 KB) Updated: March 13, 2018

The council decided to exclude Mr C's son from school for five days. He said that they improperly excluded his son and that this breached his rights to an education. He also complained that the council failed to acknowledge responsibility for what he considered was an improper exclusion. Although we cannot look at matters of discipline in a school, we can look to see whether the correct processes were followed in deciding to exclude a child. In this case we found they were not and we upheld this complaint. As the council had already acknowledged this, rescinded the exclusion and removed any reference to this in the pupil's records, we took no further action. We did not uphold Mr C's other complaints, as we found that the school had not breached Mr C's son's rights to an education and that they had acknowledged their failures at an early stage. Related reading View Decision Report 201102837 as a PDF (16.68 KB) Updated: March 13, 2018

Mr C complained to the council about an incident involving his granddaughter, where a misunderstanding amongst social services staff left her unsupervised during an outing. A Social Work Complaints Review Committee (CRC) was subsequently convened to consider the complaint. Mr C then complained to this office that he did not receive a copy of the Social Work Services' report to the CRC members until two days before the hearing. The submissions for both parties to the complaint are required to be issued to the CRC members at least seven days before the hearing. Our enquiries revealed that the council wrote to the members, appending all submissions, four days before the hearing. They were unable to explain why this had happened and, in the circumstances, we upheld the complaint.

Mr C lives in a sheltered housing complex and is required to pay housing support charges. His complaint related to the introduction of the Supporting People Scheme in 2003 which introduced a separate charging regime for housing support. Mr C complained that because he was a tenant prior to 2003, he should have been awarded protected tenancy status and should not have had to pay separate housing support charges. He complained he had never been assessed as being liable to pay the charges and that the council had provided contradictory information about the scheme. Our investigation found that the protected tenancy status applied to those tenants of rent pooling landlords and that it had been introduced to ensure that those tenants were not paying the additional charge in addition to rent and services charges which they already paid. As Mr C was not a tenant of a rent pooling landlord he should not have been afforded protected tenancy status. During the investigation, we were provided with evidence demonstrating that Mr C had been offered a number of assessments and that the council had offered to meet with him to explain the supporting people scheme. We, therefore, did not uphold the complaint. Related reading View Decision Report 201100648 as a PDF (13.95 KB) Updated: March 13, 2018

Mrs C hurt herself after falling on a loose paving stone. She made a claim against the council's insurers but they denied liability on the grounds that the pavement had been inspected two days prior when no fault was identified. Mrs C complained about this decision. In response, the council explained that as they had an inspection process in place which complied with national guidelines which they had followed in this case, they could not uphold her complaint. Unsatisfied with their response, Mrs C approached our office. We cannot consider the question of liability, we can only review whether or not the council followed their own procedures and whether these procedures are, in themselves, appropriate. Having reviewed the evidence in this case, it was clear that the council had the right procedures in place and that they had followed them properly. As a result, and as they could demonstrate that they inspected the site of the accident two days before it took place, and found no defect, we did not uphold the complaint. Related reading View Decision Report 201102008 as a PDF (13.9 KB) Updated: March 13, 2018

Mr C cares for his sister, who has Down's Syndrome. He complained that Social Work Services had stopped providing road salt to him. They had provided this for about ten years, to allow him to keep the pavements around his property clear of snow in the winter. Mr C said he would not be able to provide the care that his sister needs if either he or his wife slipped on ice. He said the council had ignored the criteria for receiving community care services, specifically that of 'carers' health being put at risk'. Our investigation found, however, that the criteria on which Mr C relied in making his complaint referred only to social work clients whose needs had been assessed. In this case, Mr C's sister had not had a needs assessment carried out when the salt was first provided, and he refused to allow her to be assessed now. We concluded that it was therefore reasonable for the council to take the action that they had. Related reading View Decision Report 201004256 as a PDF (13.77 KB) Updated: March 13, 2018