SPSO Individual Decisions

C complained about the way that the council handled the planning process and the building warrant process for a self-build project within an existing development of houses. Planning permission had been granted, and three years later only limited progress had been made and an application was made by the developer to place a static caravan on site, where they would live whilst completing the project. There were several applications relating to the caravan, and some years later an enforcement notice was served by the council. This was appealed by the developer. Two years later, the council served a completion notice on the site, and the case was appealed to the Planning & Environmental Appeals Division (DPEA) by the developer. C complained to the council. The Scottish Government reporter concluded planning permission had lapsed, because development had not lawfully commenced. The council took legal advice, which suggested that they reluctantly accept the reporter’s findings. The advice noted that should further evidence be submitted, then the council could take this into account if it supported a contrary position on the implementation of the initial planning permission. C continued to correspond with the council, and brought a number of complaints to the SPSO. We took independent planning advice and we found that the council had the discretion to decide what enforcement action to pursue, if any. The council had followed the legal advice that they had received, serving a notice requiring submission of a new planning application. The developer had chosen to pursue an alternative course of action, by applying for a Certificate of Lawful Proposed Use or Development (CLPUD). This was not the same as being granted planning permission, but was an acceptable course of action by the developer. The decision of the Scottish Government reporter was only directly applicable to the completion notice, which could not be served. The council were entitled to determine whe

C complained about the council’s planning department with respect to a section 75 agreement (a contract that is entered into between a landowner and a planning authority). In particular, C complained that the council had failed to adhere to a clause of the section 75 agreement requiring them to adopt open space and woodland areas within, and bordering the housing development on which C lives. C noted that some of the land in question had now been sold to a property developer. C believed that the council’s inaction could result in development adversely affecting C and other residents’ properties and a failure to maintain the playpark and communal spaces. Additionally, C was dissatisfied with the council’s response to their complaint due to missed timescales, and the response having been issued by an officer closely involved in the matters complained about. We took independent advice from a planning adviser. We found that many of the significant events related to this complaint were now historic. In particular, the fifth clause of the section 75 agreement required prior action be taken, adoption of the land by the council, before occupation of a number of homes in a phased development. However, a number of years previously the council had failed to monitor and discharge this condition allowing occupation. While in theory enforcement action remained a possibility at the council’s discretion, due to the passage of time the owner of the land likely now had deemed planning permission. On this basis, we upheld C’s complaints about these matters. We also upheld C’s complaint that the complaint had not been handled in line with the council’s complaints handling procedure.

Mrs C complained about the council's response to the child protection concerns raised in respect of her child (Child A). The council led a child protection investigation and Mrs C complained about the handling of the investigation, highlighting a number of concerns about the quality of the initial assessment undertaken, the actions taken in response to Child A's disclosure and the level of initial support and follow-up provided to Mrs C and her family. The council acknowledged that there were some failings in their handling of the child protection investigation and they confirmed that, since the complaint was raised by Mrs C, an external review was conducted and child protection training was delivered to all social work staff. We investigated the complaint further to ensure that all failings were identified and that appropriate learning and improvement was put in place. In doing so, we examined the case records and sought independent advice from an experienced social worker. We found that the council's case records were of a poor standard and as a result, there was a lack of evidence of the actions taken and the rationale for the decisions made. We also identified that communication with Mrs C and her family was unreasonable. We concluded that the council failed to adhere to the child protection procedures and relevant guidance by failing to ensure that there were two social workers present when Child A was interviewed; to consider the gender appropriateness of the interviewing social worker; to undertake a welfare home visit to Mrs C and Child A; and to consult with health or education prior to undertaking the investigation. We upheld the complaints and made some additional recommendations, including a request for evidence of the actions already taken by the council.

Mr C complained about the support provided to him by the council following his release on licence from prison. Mr C also complained about the content of a report that the council submitted to the Parole Board, requesting consideration of Mr C being recalled to prison. We took independent advice from a social worker. We did not find evidence that the council's decision-making or the support provided to Mr C was unreasonable. We did not uphold Mr C's complaints. Related reading View Decision Report 201809898 as a PDF (23.5 KB) Updated: September 18, 2019

Mr C complained about the council's decision to significantly increase fees for musical tuition. He considered the council had not followed due process, in that there had been insufficient consultation on the decision, or assessment of the impact the decision would have. We found that the council had held a number of public consultation meetings relating to their proposed budget and that there was recorded evidence to show that musical tuition was raised at some of these. We also found that they had carried out an appropriate equality impact assessment on the decision, which did not highlight any equality concerns. Overall, we were satisfied that the council had reasonably complied with their policies and procedures before reaching the decision. Therefore, we did not uphold Mr C's complaint. Related reading View Decision Report 201801434 as a PDF (23.7 KB) Updated: August 21, 2019

Mr C complained to the council that an energy performance certificate (EPC) for his home was inaccurate as no assessment was carried out. The council advised him that they considered the assessment had been carried out. Mr C was dissatisfied and complained to us. The council provided us with a written statement from the assessor that he had carried out the assessment as noted on the EPC. We decided that there was no firm, objective evidence to allow us to determine whether Mr C or the council's position was correct. Given this, we did not uphold the complaint. Related reading View Decision Report 201607427 as a PDF (10.83 KB) Updated: March 13, 2018

Mr C complained that the council failed to properly investigate his concerns that staff at the company he worked for, who provided services at a council homeless unit, were falsifying time sheets and claiming to be working when they were not. He also complained that staff were displaying confidential, and inappropriate, information about residents in public view on a notice board in the facility. We considered the available evidence and noted that the council had appointed an internal auditor who reviewed the evidence provided by Mr C to support his concerns, interviewed staff and reviewed documentation associated with the contract. The council also instructed a senior officer, who was responsible for data protection, to carry out an unannounced visit to the premises to inspect the notice boards. The evidence demonstrated that the council had taken Mr C's concerns seriously and carried out appropriate investigations in order to ensure that the company was complying with the terms of their contract with the council. They also investigated the data security and, after inspection, were satisfied that the information held on the notice boards was displayed in staff areas to which the public did not have access and that the information itself was appropriate given the nature of the facility and the needs of the residents. As the council could demonstrate that they had taken Mr C's complaints seriously, and carried out appropriate investigations, we did not uphold Mr C's complaint. Related reading View Decision Report 201603051 as a PDF (11.27 KB) Updated: March 13, 2018

Mr C had previously paved his entire front garden to make a driveway and was given permission from the council to double the length of his dropped kerb to access this area. Mr C said he had difficulty accessing his drive and wished to further extend the dropped kerb. Mr C complained that the council unreasonably failed to appropriately assess his application to extend the drop kerb outside his home. In considering Mr C's complaint, our role was to determine whether the council followed their normal process when dealing with Mr C's application. It was not our role to assess the site in question and determine whether or not Mr C's application should have been approved – that was the council's discretionary decision. We saw no evidence that there was any visit made by a council officer to the site in question prior to giving his initial decision to refuse Mr C's application, although the council said a visit was made. When Mr C questioned the officer's decision it appeared that the council assessed Mr C's application in accordance with their normal process, with the council officer's manager assessing the site in question and setting out his professional opinion on why the application had been refused. On balance, we did not consider that the council unreasonably failed to appropriately assess Mr C's application. However, the evidence showed that the council failed to keep adequate records on the case and deal with Mr C's concerns about their handling of his application and the actions of council staff appropriately. We made recommendations to address this.

Mr C said that he complained to the council in October 2014 about a noise nuisance emanating from business premises close to his home but that they failed to follow correct procedures and delayed in dealing with his complaints. The council said that they had investigated all of his complaints and responded to him but found no evidence of a statutory noise nuisance which they could pursue. We investigated the complaint and found that after Mr C had been in contact with them, the council made a site visit to the premises concerned, spoke to the operator, issued Mr C with noise logs to complete, installed noise monitoring machinery in Mr C's house and took readings. However, no evidence was produced to confirm that a statutory noise nuisance existed which would have allowed the council to issue a noise abatement notice. We also found that, overall, the council responded reasonably to Mr C's complaints and that there were no unreasonable delays in the way they handled his reports of noise. We did not uphold the complaint. Related reading View Decision Report 201508879 as a PDF (11.07 KB) Updated: March 13, 2018

Ms C was registered with the council as homeless and was placed in temporary bed and breakfast accommodation. She was unhappy with the standard of the accommodation and visited the council to complain as well as speaking to council officers on the phone. She said the accommodation was dirty and that the gas boiler was unsafe. She alleged residents were locked in at night and that a fellow resident was on a methadone programme. When she complained to us she told us that she was particularly unhappy that the council contacted the landlord following her complaint. She believed this allowed the landlord to make improvements to the property before the council inspected it. She said that this meant that, when inspected, the property was not in the condition it was when she stayed in it, and so ensured that her complaint was not upheld. The council said that the landlord had shown them the appropriate safety certificates for the property and that it had passed an unannounced inspection. They had also been shown invoices for professional cleaning companies for both the interior of the property and the bed linen that was provided to Ms C. They acknowledged that the type of accommodation was not ideal, but said that on the date of Ms C's application it was the only accommodation they had available. They recognised homelessness was stressful for the individuals affected, and said staff had been reminded of the need to take the impact of homelessness into account when dealing with members of the public. We did not uphold Ms C's complaints. Our investigation found that the council had phoned the manager of the accommodation due to Ms C’s concerns about not just the property, but also her fellow residents. They had told her when she visited the council offices that this would happen, before she had made a formal complaint. We found the council had investigated Ms C’s concerns appropriately and taken all reasonable steps to satisfy themselves that the property was safe

Miss C complained that the council had failed to take reasonable action after she complained about antisocial behaviour by neighbours. During our investigation, the council told us that the neighbours had moved out. As we were by that point satisfied that the council had shown us that they had taken Miss C's complaints seriously, and had liaised with other agencies, including the police, to investigate the matter, we decided that no further action on our part was needed. Related reading View Decision Report 201303293 as a PDF (10.79 KB) Updated: March 13, 2018

Mr and Ms C complained because the council decided to transfer their child to a composite school class (a class in which there are pupils from two or more year groups). Mr and Ms C said that this was done without any proper prior notice or discussion. They also said they learned this three days before the end of term and suspected that this was intentional. Mr and Ms C also complained that their child was being discriminated against in terms of age and questioned whether the council had followed their stated policy. When investigating the complaint, we took into account all the relevant information, including the complaints correspondence, phone notes, emails and the policy concerned. We did not uphold the complaint, as our investigation found that the council had taken action under the policy to inform parents (through newsletters and the parent council) about what was happening. Council documents also showed that it had not been possible to tell Mr and Ms C earlier, as the school did not know its final roll until near the end of term, and further changes to the roll could have led to further restructuring. Although Mr and Ms C also believed that their complaint had not been handled correctly, the evidence showed that they had been advised of a delay and the reasons for it, and that they had said they were happy with this. Related reading View Decision Report 201302087 as a PDF (11.25 KB) Updated: March 13, 2018

Mr C and Ms C live in a conservation area. They made five complaints about the council's handling of two related planning applications made by their next door neighbours to construct a two storey rear extension. A consequence of the proposed works was the blocking of an existing first floor bedroom window, and the insertion of a new window facing Mr and Mrs C's property. This had consequences for Mr C and Ms C's family's privacy, as the new window overlooked one bathroom and two bedroom windows in their home. Mr C and Ms C had received appropriate neighbour notification about the applications but there was no specific mention of the window in the description of the works or supporting statements. This meant that their attention had not been drawn to the proposed new window, and so they had not objected. Our investigation upheld three of Mr C and Ms C's four complaints about the processing of the applications (both of which had been the subject of a site visit by the planning case officer). Having taken independent advice from a planning adviser, we found that the absence of objection was not material. The onus rested with the council to demonstrate that they had fully assessed the applications in accordance with the relevant development plan including relevant supplementary planning guidance with regard to privacy in the two reports of handling. We found that the council had not done that and so we upheld these complaints. We also upheld a complaint that the council had provided unsatisfactory and inconsistent responses to Mr C and Ms C's complaint (in relation to the effect of the conservation area designation).

In 2002 the council promoted the Stirling-Alloa-Kincardine Railway and Linked Improvement Bill as an item of private legislation to the Scottish Parliament. Mr C attended public meetings and objected to the bill. He complained that during the consultation period the council failed to include full relevant information about the times and frequency of freight trains on the line. Our investigation found that it was clear that an environmental impact report prepared and submitted to the Scottish Parliament was based on the expectation that there would be no night time trains. It was also, however, clear that the hours of operation of the line when re-opened could not be controlled by the Scottish Parliament or the council and that the council had pointed this out to the bill committee while the bill was being considered. We did not uphold the complaint as we found no evidence suggesting that the council withheld information of which they were aware or deliberately sought to mislead residents or the Scottish Parliament. Related reading View Decision Report 201003119 as a PDF (16.83 KB) Updated: March 13, 2018