SPSO Individual Decisions

C sought advice from the council regarding development that they were planning at their home. C received a response, with input from the building standards service, that the council would not be asking for a building warrant in relation to the development. A few years later the building standards service contacted C to advise that complaints about the use of their property had been received and the council considered a building warrant was required. C felt that, before being given advice some years previously, they had communicated the information about the use of the development the council now advised were the reasons a building warrant was required. C complained to the council about this and the actions of the building standards service. The council responded that the advice provided had been correct at the time of issue and based on the current regulations and guidance at that time. The council said that they considered the use of C's property had changed and, therefore, the basis upon which the advice had been given had also changed. C was unhappy with this response and brought their complaint to us. We found that the passage of time meant that it was not possible to determine whether the advice received from the buildings standards service had been reasonable as it was not clear what information the service were in possession of. We did not uphold this aspect of C's complaint but provided feedback to the council to reduce the likelihood of any confusion over the response to requests for advice in future. We found that the recent actions of the building standards department had been reasonable given the terms of relevant guidance and standards, and did not uphold this aspect of C's complaint. We found that the council's response to C's complaint had inaccurately suggested that C had not made the council aware of the intention to invite the public into the proposed development. Therefore, we upheld this aspect of C's complaint.

C became kinship carers of A and B. C complained that the council had decided that they were not entitled to a kinship care allowance relevant to a period of nearly two years (in respect of both A and B). C said that they approached the council about kinship support and an allowance but this was not responded to appropriately at the time (including a lack of record-keeping by the council). C was of the view that if they had been given appropriate information in at the beginning, they and A and B would have been awarded what they were entitled to. We considered the relevant legislation and guidance and took independent advice from a social work adviser. We found that C was not provided with information and advice about eligibility for a kinship care allowance and Kinship Care Orders. We also found that there was an unreasonable failure to maintain case records regarding C and A and B's involvement with social work. We upheld C's complaint and made recommendations to the council, which, as far as possible, aim to put C back in the position that they would have been in had the failings not occurred.

Mr C manages a direct payment on behalf of his son and he complained to the council about their procedures. Mr C complained that the council's financial monitoring procedures were not sufficiently robust to ensure that he can manage the direct payment appropriately. He said he was wrongly accused of spending the money inappropriately and that the council's monitoring procedures are not 'light touch' as the Scottish Government advises they should be; he also said that the council failed to make reasonable support and guidance available to him as a personal assistant employer. Mr C said it was not clear what he could and could not spend the direct payment budget on and that the council were not keen to fund a membership for a support service, which he required. The council said that it is not always possible to list every item that might be permitted in a person's support plan, however, there is a system in place whereby if the finance department wanted to query an item of expenditure they would contact the allocated social worker. The council also provided details of the different ways they support personal assistant employers. We took independent social work advice and found that the policies and procedures the council had in place were reasonable and there was clear information provided about the support that was available. The council's financial monitoring procedures were appropriate and reasonable, and there was evidence that the council provided the appropriate funding for support services to Mr C. We did not uphold the complaints. Related reading View Decision Report 201803480 as a PDF (24.04 KB) Updated: November 20, 2019

Ms C runs a hostel and complained about noise coming from a nearby road depot. Ms C complained to the council but felt they did not undertake an appropriate assessment of the noise from the depot. She wanted the council to investigate and take enforcement action. The council said that they had taken reasonable steps to investigate the complaint, stating that this was carried out in accordance with their enforcement policy. The council's position was that the site visits carried out by the environmental health officer, and subsequent interviews with staff, represented an appropriate response. They concluded there was no statutory nuisance and therefore said it was not appropriate to undertake enforcement action. We noted that the council's website sets out the type of actions they will take upon receipt of a noise complaint. This includes asking for a noise diary to be maintained for one to two weeks, then assessing the written evidence to determine the scale and extent of the problem. Ms C had not been asked to keep a noise diary, and when the environmental health manager reviewed the actions of the investigating officer they stated it could not be judged whether the noise at the depot would constitute a nuisance without a noise diary to assist in identifying the times, duration and frequency of noise issues. We found that there was a lack of clear evidence of the investigation which was undertaken by the council. We also found there was a lack of evidence to support the decision that the noise was not a statutory nuisance. We therefore upheld this complaint.

Mr C complained that the council failed to address concerns he raised about building works carried out by his neighbour. Mr C felt that the council's failure to take action against his neighbour had allowed the retention of a defective building which had, over time, resulted in water damage to his property. The council required Mr C's neighbour to submit a retrospective planning application to allow for the works which had been carried out to be assessed. The retrospective planning application was granted planning permission with two conditions, one of which related to the provision of appropriate guttering and rainwater goods to ensure rainwater did not discharge onto Mr C's property. Compliance with this condition was required within three months, however, Mr  C's neighbour failed to comply with this condition in this time and a planning enforcement case was opened. The council carried out further investigations and closed their enforcement case. A number of years later, the council wrote to Mr  C notifying him that his building was considered to be defective and requiring him to carry out works to remedy these defects. Mr C complained that these works were required because of the council's failure to enforce appropriate installation of rainwater goods on his neighbour's development, as required by the condition of the earlier planning permission. We found that the council unreasonably closed the enforcement case without ensuring that Mr C's neighbour had carried out the works required to comply with the planning condition. We considered that the delay between Mr C initially raising his concerns about non-compliance and the council finally ensuring compliance years later was unreasonable. Therefore, we upheld Mr C's complaint.

Mr C raised a number of concerns about the council's handling of a planning application. In particular, that the council had unreasonably failed to carry out an appropriate assessment of the impact of the new development on his property. He also complained that the council had failed to take enforcement action in relation to an alleged breach of planning control. We took independent advice from a planning adviser. We considered that the assessment of the planning application in relation to the impact on Mr C's property, in terms of privacy and overlooking, was unreasonable and we upheld this aspect of his complaint. However, in making recommendations to the council in light of this finding we noted that they had, prior to our investigation, taken action to suggest to the applicant that additional screening be installed to address Mr C's concerns about overlooking. In reference to enforcement action we were satisfied that the council had take action in line with their monitoring and enforcement charter and we found no failings. Therefore, we did not uphold the complaint.

Mr C's father (Mr A) had been receiving a care package from the council's Extended Community Care Team (ECCT) when an assessment resulted in his recognised care needs changing. Mr C attempted to source a new suitable care package but struggled to do this and asked the council to assist him. Mr C rejected the care package the council offered. A few days later, he was offered the same care package and refused it again. Mr C was then also told that the ECCT package would have to be reduced and, the following day, that it would be removed altogether. Mr C complained to the council that they had used the reduction and withdrawal of the ECCT package to force him to accept the care package he had previously rejected. The council stated that the EECT package was only to be used for a limited period of time and indicated that Mr C had been advised of this reduction and withdrawal prior to refusing the other care package. However, the council recognised that this information had not been made clear to Mr C at the outset and took action to prevent this happening again in the future. Mr C remained unhappy and brought his complaint to us. We found no evidence that the council had attempted to force Mr C to accept the care package. Therefore, we did not uphold the complaint. Related reading View Decision Report 201700024 as a PDF (11.19 KB) Updated: December 2, 2018

Mrs C complained that the council had failed to implement the recommendations of a social work complaints review committee (CRC). The CRC had been held and, despite a statutory timeframe of 42 days within which the recommendations should have been considered, the council did not consider the recommendations for six months. In terms of the complaints handling procedure in place at the time, the recommendations had to be reported for consideration by a council committee. The council's position was that this had been hampered by the intervening local elections and recess period, but we considered the delay to be unreasonable. We also considered that the council should have kept Mrs C updated with an explanation for the delay and advice as to likely timescales for implementing the recommendations. We upheld Mrs C's complaint.

Mr C complained about the way in which the council dealt with his application for payment of a home improvement grant for his mother. Mr C had not received a receipt from the contractor who had carried out the work, so he had submitted other evidence as proof of payment. Mr C complained that the council: unreasonably refused to make payment of the full grant, despite receiving evidence that he had paid the contractor in full failed to advise him that the documents that he had provided as evidence of payment were insufficient unreasonably failed to verify whether his documents, or the documents that they had received from the contractor, were accurate in order to establish if payment for the works had been carried out unreasonably failed to clarify in their response to his complaint why he had not been advised of what would have been an acceptable proof of payment. We found that it was reasonable that the council did not accept the proof of payment provided by Mr C, as it was not an official bank statement, and that they therefore did not pay the full grant until further evidence was received. We did not uphold this aspect of the complaint. However, we considered that the council could have been more helpful in that they could have advised Mr C of what documentation they would accept as proof of payment. We upheld this aspect of the complaint. We found that it would not be reasonable to expect council staff to seek to independently verify the legitimacy of any document it received which did not meet the requirements set out in the booklet issued with every grant awarded. This would be impractical and in some cases, not possible, due to data protection restrictions. We did not uphold this aspect of the complaint. We also noted that the failure to advise Mr C of what would be acceptable proof of payment was not identified in the council's handling of the complaint and so we upheld this aspect of the complaint.

Mr and Mrs C bought a property and, upon moving in, discovered that many aspects of work and decoration in the house were either not completed or were of a poor standard. The council had issued a certificate of completion to the previous owner prior to the sale. Mr and Mrs C were unhappy as they spent a significant amount of money remedying the issues, and they said that they would not have bought the property had they known about these issues. They complained to us that the council failed to carry out appropriate inspections of the property prior to issuing a certificate of completion. The council said that they had carried out an inspection and identified a number of actions which had to be taken before a certificate of completion could be provided for the previous owner. The owner advised the council when these actions had been taken, and the council carried out a further inspection. Following the second inspection, the council were satisfied that the works had been completed and a certificate of completion was issued. We looked into this complaint and noted that it was not possible for us to establish the quality of the inspections or the work that had been carried out, as we had not been present at that time. After looking at the council's correspondence on this matter, we were satisfied that during their first inspection the council had listed issues which needed to be addressed, and that they had then followed up on this with a second inspection. They had gathered suitable evidence of the work having been completed from the tradesmen involved, and their actions appeared to us to have been reasonable, in line with their responsibilities under the Buildings (Scotland) Act 2003. We therefore did not uphold this complaint. Related reading View Decision Report 201608622 as a PDF (11.39 KB) Updated: March 13, 2018

Mr C reported concerns to the council about out of control dogs and possible breaches of a dog control notice. He was dissatisfied with the council's actions in relation to the reports and continued to communicate with them. He said that a council officer responded inappropriately in an email to him, implicitly threatening legal action. He complained to the council about these matters and the council responded saying that they considered that their actions had been reasonable. Mr C remained unhappy and brought his complaints to us. We found that the council failed to reasonably consider his reports or to give him reasonable advice or information about their consideration of his reports. We found that the response to the email was inappropriate. We found that the council's handling of Mr C's complaints was not reasonable as they did not follow their complaints handling procedure and made statements that led to confusion about their powers. We upheld all of Mr C's complaints.

Mrs C complained that the council had failed to adequately address the concerns she had raised with them regarding water penetration at the home of her mother (Mrs A). Mrs C also felt that the council had acted unreasonably in their response to her complaints. The council did not accept that they had failed to adequately address the water penetration, but did concede in the course of this investigation that they should have recognised Mrs C's initial complaint as such, instead of dealing with it as a request for service. We agreed with the council that their response to the water penetration concerns at Mrs A's home had been reasonable and we did not uphold this complaint. We did, however, uphold Mrs C's complaint about the council not responding reasonably to her complaint to them.

Mr C complained about the way the council considered, and approved, a planning application to build a house close to his own. He said that the proposed structure as shown on the plans should have alerted the council to look more closely at the application and its potential to create noise in the surrounding area. The application was advertised but no comments were made about it by neighbours or the environmental health department. It was approved by the council. The development as built did not comply with the planning permission granted and the developer was required to regularise the situation. The developer applied to the council for a non-material variation (where amendments proposed will not significantly change the scheme that was originally granted planning permission), which was approved around a year after the initial planning application had been approved. Mr C complained that this approach was unreasonable as was the council's action on his complaints of noise. The council, however, maintained that they dealt appropriately with both applications and with the information presented to them and, after investigation, they had found no evidence of a statutory noise nuisance. We took independent planning advice and found that the council had assessed the applications made in terms of current legislation and guidance. We found that Mr C's complaints about noise had been reasonably investigated and the council had sought to limit any noise between the hours of 19:00 and 09:00. We also found that his complaint had been dealt with reasonably. Related reading View Decision Report 201508021 as a PDF (11.35 KB) Updated: March 13, 2018

Mr C's neighbour applied for planning permission to build an extension on the gable end of their property closest to Mr C's property. Mr C received a neighbour notification letter from the council which invited him to submit comments about the application. In response to this, Mr C sent a letter of objection to the council which expressed a number of concerns about the proposed development. Mr C noted that the plans submitted with the application contained inconsistencies and stated that the development was not in accordance with the local development plan for the area. Mr C added that he felt that the development would increase the risk of flooding to his property and would also affect his privacy. The council, after receiving Mr C's letter in addition to relevant consultation responses, decided to grant planning permission to Mr C's neighbour's application. Mr C was not satisfied that the council had appropriately considered his objections and said that they had not followed the relevant planning rules when considering the application. We took independent advice from a planning adviser. We found that the council had reasonably assessed the effect the development would have on Mr C in terms of the relevant policies and guidance, and had reasonably taken into account the material objections he raised. We therefore did not uphold Mr C's complaint. However, we noted that the council had upheld one aspect of Mr C's complaint and had agreed to review procedures as a result. We accordingly made one recommendation.

Mr C complained that as part of the process for a community buy-out, the council misrepresented information about the valuation of the property to elected members. He also said that officers reneged on an agreement about discounting the sale and unreasonably failed to pass his complaint about these matters to an independent party. We investigated the complaint and we found that there was no evidence to suggest that the language used about the valuation obtained by Mr C (and the group with whom he was associated) was in any way misleading or misrepresented the facts. Furthermore, there was no evidence to show that an agreement had been given to Mr C about a discounted price upon which the council subsequently reneged. In all, we found that the council dealt appropriately with Mr C's complaints. Related reading View Decision Report 201508498 as a PDF (10.98 KB) Updated: March 13, 2018

Mr and Mrs C complained that the council had not done enough to prevent their home from flooding. However, the council considered that they had done everything that was reasonable, given competing claims for funds and the budgetary constraints under which they operated. We found that in 2010 the council had commissioned consultants to look into the cause of the flooding and find options to deal with it. However, the works were not done as there were insufficient funds. Since then, the council had undertaken flood prevention works that were proportionate, and in accordance with their policy and responsibilities under current legislation. They had installed a kerbed drainage unit; regularly inspected and cleared culverts, water courses and gullies; cut back trees and shrubbery; met with a landowner about water flowing from his fields; and met with Mr and Mrs C and others to discuss and advise on options to increase their property's resilience to flooding. Mr and Mrs C continued to have problems but Scottish Government guidance confirmed that the primary responsibility for protecting their property fell to them, not the council. On the basis of these findings, we did not uphold the complaint. Taking all these factors into account, we found that the council had taken reasonable action. They had acted in terms of legislation and in accordance with their own policy. Related reading View Decision Report 201405047 as a PDF (11.29 KB) Updated: March 13, 2018

Mr C complained to our office about the council's actions when considering a number of amendments to a planning application for a house being constructed near to his home. He was unhappy that the council had granted planning consent for changes to the building which required a significant amount of under-building, below ground level, which he felt was contrary to the local development plan and which he said had been refused for a neighbouring property. He was also unhappy that the council considered changes to the dimensions of the proposed building, which required an increase in under-building, as a non-material variation rather than as a full planning application. Although we did not review the original planning consents for this building as they were granted some years ago, and before Mr C purchased his property, we did review the recent planning applications and non-material variations considered by the council. We reviewed the application which considered the installation of a retaining wall resulting in a large area of exposed concrete, making the construction significantly more visible from Mr C's property, and we also took independent advice from our planning adviser. From our review we were satisfied that the planning officer properly detailed the impact of this proposal in his report, noted the relevant development plan policies which were relevant in this case and provided details of his assessment of the application. We also noted that the officer had recommended that conditions be imposed in order to mitigate against the impact of this large area of wall, including raising of the ground level, tree planting and stone cladding. We also noted that each of the non-material variations to the original planning consent were for minor amendments which did not raise additional material planning issues. As a result of this, we were satisfied that the council had taken appropriate steps to assess the application as presented to them and had properly consid

Mr C's home was regularly affected by flooding. Mr C complained that this was due to an inadequate road drainage system. He said that the council had accepted this, but although they had committed in 2012 to resolve the problem, no work had been carried out. The council said they had been actively seeking a solution to the problem since 2013 following a formal complaint from Mr C. They required access to privately owned land and negotiating this had proved complicated. They accepted matters had taken longer than they would have wished, but felt they had acted reasonably and that the delays were due to matters outside their control. We upheld Mr C's complaints. Our investigation found the council had made a written commitment to resolve the problem in 2012. The evidence showed that they had not, however, pursued this solution until Mr C had formally complained and contacted us about their lack of response. We found the delay in starting work on the project was excessive and was due in part to failures by the council. We also found that the council adopted a contradictory position by accepting responsibility in 2012, before suggesting, when Mr C complained in 2013, that he was responsible for managing flood risk. This also contributed to the delay in commencing work to mitigate the flood risk to his home.

Ms C complained that the council had not followed appropriate and mandatory procedures when they approved a planning application, which removed a condition that local slate had to be used on a new visitor centre. When Ms C complained to the council her complaint was not upheld, but she said there had been bias towards the developer and appropriate checking of information was not carried out. Our investigation considered all correspondence between Ms C and the council, the detailed planning reports and planning committee meetings, as well as planning legislation and local plans. We found that the council had followed appropriate procedures when they amended the condition and had reasonably considered the slate options for the visitor centre. Although strong differences of opinion were expressed, the final decision of the planning committee to use a different slate was one they were entitled to take. Related reading View Decision Report 201404706 as a PDF (11.01 KB) Updated: March 13, 2018

Mr C reported that the council stopped his refuse collection. He said that he was later informed that a neighbour had denied the council refuse vehicles access to the private road running past his home. The council then made new arrangements for refuse collection via a concrete plinth at the end of the private road. Mr C was unhappy that his service had been changed and he told us that he had not been told the reason for the change or given any kind of notice. Mr C was also unhappy as it had taken the council approximately six weeks to organise a new collection location. In addition Mr C felt that the council had not communicated effectively with him and in particular had not adhered to his request to only be contacted in writing. We upheld Mr C's complaint that the council had unreasonably delayed organising a new collection point, but we did not make any recommendations as the council had already offered an apology within their final response. We did not uphold Mr C's complaint that the council had not informed him of a change of service prior to it taking place. This was because the council provided evidence that they had met with Mr C at his home prior to the change to tell him that his refuse collection would be disrupted. Soon after they told Mr C that the reason for this was that a neighbour had denied access to the private road. We also did not uphold Mr C's complaint about the council's communication with him. Although there was matters of communication that could have been managed more effectively by the council, they did keep Mr C informed about the refuse situation. Finally, we found that Mr C's request for the identity of the neighbour who had denied access to the private road was dealt with as a Freedom of Information issue and the council communicated effectively about the progress of this request. We explained to Mr C that he should direct any dissatisfaction he had with the outcome of that request to the Scottish Information Commissioner.

Mr C complained that the council had installed a new culvert (a tunnel carrying a stream or open drain) under the road above his property. The culvert drained directly onto his land, and he said that it had eroded his driveway and caused problems with water run-off around his house. Mr C said that he was there when workmen constructed the culvert, and there had been no management presence on site. He had contacted the council at the first available opportunity, but was told that although the location of the culvert was detrimental to his property, the council had no option but to locate it there. Mr C said he was also told that the culvert replaced an existing culvert which had collapsed, and as it was not considered a new culvert, the council had no obligation to tell him about it. Mr C complained and was told that the council's primary obligation was to ensure the road was safe by preventing surface water collecting on it. The council said that the Roads (Scotland) Act 1984 gave them the necessary authority for their actions. They recognised that the culvert had a detrimental impact on Mr C's property and offered to pay half the cost of additional drainage to reduce its impact. We upheld Mr C's complaints. We found that the logical conclusion of the council's position was that they were entitled to install drainage, regardless of the impact this had on an individual's property. Although it was reasonable for them to take action to provide drainage, our investigation found that they could not provide evidence to prove that a culvert had previously been there. We also found no evidence that they tried to identify or contact Mr C, even though it was apparent his house would be directly impacted. Because of this, we found that the council had acted unreasonably, as they had not given him the opportunity to discuss this before putting the culvert in place.

Case ref: 201302920 Date: November 2014 Body: Argyll and Bute Council Sector: Local Government Outcome: Not upheld, recommendations Subject: local housing allowance and council tax benefit ummary Mr C complained that the council did not reasonably assess his and his wife (Mrs C)'s income and …

Mrs C complained that the council acted unreasonably in granting temporary planning permission for a mast to be erected on the Isle of Orsay (an uninhabited island). The mast was intended to collect meteorological information essential for the development of an offshore wind farm near Islay. The wind farm had been designated a project of national importance by the Scottish Government, and the planning application for it was to be considered by the government, rather than the council. Mrs C said that the council had not taken account of Orsay's special protected area (SPA) status under European law, and they had not given sufficient weight to objectors' requests for an environmental impact assessment. Mrs C also felt the council's decision was inconsistent with a previous planning decision on a proposal to site the mast nearby. She said that the council's actions contravened the Aarhus Convention (a European convention establishing a number of rights of the public with regard to the environment) in relation to public participation and environmental information. We took independent advice from our planning adviser, who said that the mast could not be considered to have the same impact as a wind turbine because of the difference in size, and that the temporary nature of the permission was an important consideration. Orsay's SPA designation had been addressed in Scottish National Heritage (SNH)'s response to the council's planning consultation and the council acted reasonably in relying on this in their decision. He also said that the council were entitled to decide how much weight to give to information from objectors. They had to bear in mind that a decision giving too much weight to objections from members of the public, as opposed to advice received from SNH as a specialist body, would have been open to challenge. The adviser said the application for the alternative site was withdrawn before the council could consider it, so no precedent was set, and in thei

Mr C, who is a solicitor, complained on behalf of a client (Mr A) that the council acted unreasonably when they included a note on planning permission issued in response to Mr A's planning application. The note said that the building referred to in the application was not a dwelling house. Our investigation found that, in stating an opinion on a legal interpretation, the note went further than normal informative notes. Although this was a view that the council were entitled to hold, we found that it was not appropriate to communicate it in such a note, and we found that they had acted unreasonably in doing so. Mr A's representatives subsequently discussed the note with the council. Mr C said that they were told that the note could not be removed. Mr C then wrote to the council and said that he had been instructed to raise proceedings for judicial review. The council obtained legal advice from their solicitors. After considering the legal advice, the council removed the note. However, Mr C complained to us that the council had failed to engage with Mr A's representatives properly, which meant that they had to raise proceedings for judicial review before the council agreed to remove the note. Mr C said that they had incurred costs of over £8,000 and wanted the council to reimburse them. We did not, however, uphold this complaint. We found that under the planning regulations there were remedies available to remove the note, of which Mr A's professional advisers would have been aware. They could have pursued these rather than applying for judicial review. We also considered that the council had not been given a proper opportunity to consider the matter before the judicial review proceedings were started.

Mr C and his wife owned a flat in a tenement block. The owners of the block next door knew that a chimney-head on their building was deteriorating, but had done nothing about it. When three years later lumps of masonry fell on to the pavement, the council acted immediately under section 29(3) of the Building (Scotland) Act 2003 to make the chimney-head safe and prevent further danger to the public. The chimney-head next door had to be taken down. When this happened, it turned out that it was in fact connected to the chimney-head on Mr C's block, and it also had dangerous defects. The council got a quote to take down the chimney-head on Mr C's block and rebuild both. Arrangements were also made for another contractor nominated by the co-owners in Mr C's block to access scaffolding to let the owners there instruct works separately. The contractor, however, did not turn up and the council then instructed the works on the basis of the quotation they had obtained. The chimney-heads were rebuilt from the same bases, but contained inside a single casing. When the apportioned bills for the work were issued, Mr C and other owners in his block disputed them and he eventually complained to the council. When he was unhappy with their response, Mr C brought his complaints to us. We did not uphold three of these - that the council failed to explain to Mr C his legal rights, failed to consult with him over the emergency repair, and unreasonably combined the two chimney-heads into one structure. However, we upheld his complaint that the council did not provide him with estimates for the repair, and we made recommendations aimed at improving communication.