SPSO Individual Decisions

C complained that the council failed to reasonably respond to reports of damp and mould in their property. C also complained about the council’s handling of their complaint. The council said that they had commissioned an independent survey of the property. They also apologised for delaying with some repairs. We found that C was responsible for helping to manage the levels of humidity and the temperature in their home by maintaining ventilation and ensuring a reasonable temperature. However, it was clear that there were a number of repairs which the council were responsible for, some of which were delayed and which have generally occurred over an extended period of time. On review, it appeared that they had only been progressed or completed as a result of C’s persistence. Therefore, we upheld this part of C's complaint. In terms of complaint handling, we found that the council acknowledged and responded to C's complaint in a timely manner. However, we found that they failed to provide a full and informed response to a later complaint. On balance, we upheld this part of C's complaint.

C complained that the council failed to respond reasonably to their enquiries. A planning application was submitted by a business located close to C’s home. C contacted the council’s planning service asking a number of questions in relation to the proposed development. There followed a protracted correspondence during which C tried to obtain answers to their questions. The council treated some of C’s questions as objections to the planning application and C was advised that they would receive no response to these points. Some of C’s outstanding questions were eventually answered after C involved their local councillor, but a number remained unanswered. Generally, we did not consider that C’s enquiries could be viewed as objections to the planning application. We noted the council’s comments about resourcing and the need to focus on core business but found no reasonable explanation as to why the enquiries could not have been dealt with sooner. We considered there to have been a clear and unreasonable delay to their response to C’s enquiries. Therefore, we upheld this part of C’s complaint. With regard to the procedural aspects of the complaint handling, we found that the council had responded to C’s complaint reasonably. Therefore, we did not uphold this part of C’s complaint.

Mr C complained that for over three years, the council failed to reasonably respond to his and his wife's (Mrs C) concerns about their child's (Child A) additional support for learning needs. Child A has a developmental learning disability. Mr C also said that the council unreasonably removed Child A’s 25 hours of care and support (provided by members of school staff), without first contacting him or Mrs C and that the council behaved unreasonably towards them both. We found that the council responded appropriately to a number of Mr and Mrs C’s concerns about Child A’s additional support for learning needs. However, there was a significant failure by the council to appropriately signpost Mr and Mrs C to resolution mechanisms for disagreement regarding additional support needs. Therefore, we upheld this aspect of Mr C's complaint. We were also concerned about the lack of notes of the meetings between Child A’s school head teacher and Mrs C, which appeared to have been a substitute for Staged Assessment and Intervention meetings and review of Individualised Education Programme targets, and we provided feedback on this point to the council. In relation to Child A’s support hours, we found that Child A was assessed as requiring a total of 17 hours 50 minutes of support rather than 25 hours. There was no evidence that Child A’s support was unreasonably removed in the manner Mr C described, but that the head teacher contacted Mr C to inform him that the support teacher was leaving the school at around the time they became aware themselves and steps were taken to address the shortfall. Therefore, we did not uphold this aspect of Mr C's complaint. On the matter of the council’s behaviour towards Mr and Mrs C, we found that the council referred Mr C to their Antisocial Behaviour Policy when they had been advised by their Safer Communities Team (SCT) staff that this was not the correct policy in Mr C’s case, and failed to explain their actions in this regard to our office. We

C made an application to the council for a row of trees neighbouring their property to be removed or reduced in height under the High Hedge (Scotland) Act 2013. This application was refused, as the council did not consider that the trees constituted a hedge under the terms of the Act. Following new guidance issued by the Scottish Government in 2019, C contacted the council, as they considered this guidance was relevant to their circumstances and suggested that the trees in question should be considered a hedge. The council did not signpost C into the high hedge process, responding that they did not agree and that the original decision should stand. C then complained to us, as they considered that the council had not had due regard to the new guidance and because there was an inaccuracy in the council's ongoing position regarding the number of trees present. We found that the council had failed to follow due process, effectively pre-judging their decision before carrying out investigations into the circumstances, and also considered that the council had failed to reasonably explain their position. The evidence also supported C's claim that the council's assessment of the number of trees present was inaccurate. We upheld C's complaint.

C complained about the actions of the council in carrying out roof repair works on a block of flats as an emergency repair, without seeking prior agreement from shared owners. C also raised concerns that the invoice charged for excess materials. C’s flat was let to the council through a management agent, and the council initially sent the invoice for the works to the agent. C complained that the council did not send the invoice to them directly, and they did not receive it until around two years later. The council noted that the required repair constituted a health and safety risk, and was therefore classed as an emergency and carried out as soon as possible. They confirmed the works were visually checked by a council official before being signed off, and they refuted that excess materials had been charged for. They advised that the opportunity had been taken to clean the gutters while scaffolding was erected, and acknowledged this did not meet the definition of an emergency repair. They confirmed it is normal procedure to send invoices to the party listed on the national landlord registration database, and that in some cases this is the agent. The council considered the delay in the invoice reaching C lay predominantly with the agent, although they accepted they delayed for around six months after the agent had asked them to send the invoice directly to C. We were satisfied that classification of the works as an emergency was a matter for the council’s discretion, and that their policy entitled them to carry out such work without owners’ agreement. We were unable to evidence that owners were charged for excess materials, but we noted the gutter cleaning work was not an emergency and should not have been carried out without owners’ consent. We were unable to confirm the party listed on the landlord database at the time of the works, but we noted the council contributed to the delay in the invoice being issued directly to C. On balance, we upheld this compl

C complained about the council's handling of a Statutory Nuisance under the Environmental Protection Act 1990 (the Act), which was affecting their home. They had a number of concerns regarding the procedures followed by the council and the abatement notices served under the Act to reduce the nuisance. In addition, the council had restricted C’s contact to them through a single point of contact, which C considered was unreasonable in the circumstances. C also held concerns regarding the council’s handling of their subsequent complaints about these matters. We took independent advice from an environmental health adviser. We found that the council’s handling of the nuisance had overall been reasonable, although they identified some minor procedural issues in the way this had been handled. The procedural irregularities did not result in any practical impact, and the handling was, overall, reasonable. In addition, we considered that the council had acted reasonably within their discretion when restricting C’s contact and in responding to their complaints. For these reasons, we did not uphold C’s complaints. Related reading View Decision Report 201901549 as a PDF (24.29 KB) Updated: December 16, 2020

C complained that the council unreasonably removed their child (A) from their care following an incident at A's nursery. C said that the council removed A from their home without a court order and said they did not enter into a voluntary agreement that A would be cared for by their other parent, as had been suggested by the council. We took independent advice from a social worker with experience with children and families. We found that the council failed to take account of the court order which appeared to be already in place for A and stipulated the arrangements for A's care, when deciding to place A with their other parent, particularly as the council were changing these arrangements. We noted that as a court order appeared to be in place, it was not automatic that parental rights could be exercised by either parent without the consent of the other, as the council had stated. If the arrangement following the nursery incident was not mutually agreed and went against C's wishes (which appeared to be the case), then in order to remove A from C, even if placing them with their other parent, there should have been a legal framework to enable this to happen - such as applying for a child protection order, if the council believed it was unsafe for A to remain in C's care. We considered that the council's actions were unreasonable and were not in A's best interests. We were also critical of the council for failing to minute the multi-agency welfare meetings to discuss A's care and the changes to this, and of the council's record-keeping. We considered that there was a lack of clarity in respect to the action taken and the legal basis for doing so, including a lack of evidence that this was shared with C in a transparent way. We upheld C's complaint.

Ms C complained on behalf of her father (Mr A) that the council unreasonably issued Mr A with a third warning under the council’s anti-social behaviour policy following an altercation between Mr A and his neighbour. Mr A’s neighbour brought an anti-social behaviour complaint against Mr A, which was corroborated by an audio recording taken during the altercation. Ms C complained that the council’s handling of the anti-social behaviour complaint against Mr A was unreasonable as they went straight to a third warning and should not have relied on the recording from the neighbour as evidence when investigating the neighbour’s complaint. We found that the council’s anti-social behaviour policy allows for escalation directly to a third warning, bypassing first and second warnings, in cases where an adult is involved in serious anti-social behaviour. We found that the council’s handling of the anti-social complaint made against Mr A was in line with their anti-social behaviour policy and as such did not uphold this part of the complaint. Ms C also complained that Mr A was inappropriately recorded by a council officer and was only made aware when it was referenced by the council in their complaint correspondence. We were unable to find, on the basis of the information and evidence available, that the recording was inappropriate and as such did not uphold this part of the complaint. Related reading View Decision Report 201900330 as a PDF (24.3 KB) Updated: August 19, 2020

C requested that their child (A) defer their entry to primary school. C also requested an additional year of early years funding for the nursery school A was attending. When C's application for funding was denied, they submitted an appeal which was also refused. C complained about the actions of the council in relation to the matter. In relation to the consideration of the initial application for deferral and early years funding, we found that while there were elements of communication that could have been better, overall the actions of the council were reasonable. The deferral application process had an emphasis on the parent and nursery providing information and evidence to support the application. The council reasonably followed the appropriate process when considering the deferral application. We did not uphold the complaint. On considering the complaint about the process regarding the appeal, we found that when the initial application for early years funding was denied there was no clear route of appeal. It would have been reasonable, and more in keeping with relevant guidance, to have a clear process set out for parents, at least from the point in time when they become aware their application was unsuccessful, including information about the evidence required to support their request. In addition we found that the council's explanation of their decision lacked detail. To ensure the council were exercising their discretion appropriately, they should have clearly articulated what evidence they considered, their view on it and how they reached the conclusion they did. Therefore, we upheld this complaint.

Mr C complained to the council about the smell coming from local industrial premises. After monitoring the situation, the council identified a statutory nuisance and issued an abatement notice to the owners of the company concerned. The company did not meet their original compliance date, however, a couple of months later the council confirmed that the problem of odour had been satisfactorily addressed and that as no recent complaints had been made, the company had complied with the notice. Mr C disagreed that the odour had been addressed and continued to make complaints. He complained to the council about their failure to deal reasonably with his concerns. The council felt that no statutory nuisance remained and that no further complaints had been made. Mr C complained to us that he was unhappy with the council's reply to his complaint and that it contained incorrect information. We took independent advice from a chartered environmental health officer. We found that the council had taken reasonable action in responding to Mr C's complaints by carrying out full investigations, issuing the correct notices, monitoring the action taken and keeping Mr C updated on the process. While the council subsequently took the view that the statutory nuisance had been remedied, Mr C continued to complain. However, assessment after Mr C's further complaints led the council to confirm that the level of odour was acceptable. Therefore, we did not find the council's response to Mr C's complaint to be unreasonable and did not uphold this aspect of Mr C's complaint. However, in writing to him, the council had said that no further complaints were made after they confirmed the nuisance had abated. This was incorrect in that Mr C maintained his complaints. We upheld this complaint.

Mrs C complained that the council had unreasonably failed to act in line with their responsibilities in overseeing a programme of works that was carried out in the area by a third party company. Mrs C considered that the works carried out at her home had not been done to a reasonable standard and also complained that the council had not handled her complaint about this appropriately. After investigating Mrs C's concerns about the oversight of the programme of works, we did not uphold her complaint. We found that the council had used a managing agent to oversee the programme of works and there was evidence that a supervisory service was provided by them. While the council had no liability or responsibility for the works, we found that when issues arose at Mrs C's property, they took an active co-ordination role to work towards resolving these. However, we found that in responding to Mrs C's official complaint, the council failed to respond within the 20 working days specified in their complaints handling procedure. Therefore, we upheld this aspect of Mrs C's complaint and made recommendations to the council.

Mrs C complained that the council had unreasonably failed to act in line with their responsibilities in overseeing a programme of works that was carried out on her home by a third party company. Mrs C considered that the works carried out at her home had not been done to a reasonable standard and also complained that the council had not handled her complaint about this appropriately. After investigating Mrs C's concerns about oversight of the programme of works, we did not uphold her complaint about this. We found that the council had used a managing agent to oversee the programme of works and that there was evidence that a supervisory service was provided by them. While the council had no liability or responsibility for the works, we found that when issues arose at Mrs C's property, they took an active co-ordination role to work towards resolving these. We did, however, uphold Mrs C's complaint about the way the council had handled her complaint. We found that the council accepted that Mrs C's initial complaint had not been dealt with appropriately in terms of their complaints handling procedure. We also found that Mrs C had not received a response to her complaint within the prescribed timescales and that, while she had been contacted about the delay, a revised timescale was not offered. This was not in line with the council's complaints handling procedure. We made recommendations to address these issues.

Mr and Mrs C raised a number of complaints about the council regarding various housing repairs. They complained that the council did not issue an invoice for a repair that was carried out until 18 months later and they felt that this delay was unreasonable. They also complained that the council unreasonably required them to provide receipts as proof of purchase when they were trying to submit an insurance claim for damage caused to their property. They did not think it was reasonable to expect tenants to retain receipts for items that were purchased a number of years ago. They also complained that the council unreasonably delayed in completing a communal repair to the chimney at their property. The council acknowledged that they delayed in issuing the invoice for the repair and they agreed to cancel it. We upheld this aspect of the complaint. The council confirmed that they will accept forms of evidence other than receipts when considering an insurance claim. We found that the letter provided with the insurance form does not provide clear information in this regard. We upheld this part of the complaint. The council explained that the repair to the chimney was categorised as a non-emergency repair and that it therefore had no timescale attached to it. The council confirmed that, at the time of our investigation, the repair order had been sent to the contractor and that they would expect the repair to be completed soon. We found the council's actions to be reasonable and we did not uphold this complaint.

Mr C complained that the council had unreasonably failed to act in line with their responsibilities in overseeing a programme of works that was carried out in the area by a third party company. Mr C considered that the works carried out at his home had not been done to a reasonable standard and also complained that the council had not handled his complaint about this appropriately. After investigating Mr C's concerns about the oversight of the programme of works, we did not uphold his complaint. We found that the council had used a managing agent to oversee the programme of works and that there was evidence that a supervisory service was provided by them. While the council had no liability or responsibility for the works, we found that when issues arose at Mr C's property, they took an active co-ordination role to work towards resolving these. We also found that Mr C's complaint had been handled in line with the council's complaints handling procedure. Consequently, we did not uphold this complaint. Related reading View Decision Report 201602129 as a PDF (11.04 KB) Updated: March 13, 2018

Mr C raised concerns about planning consent for an extension to a house on a neighbouring site. In particular, he complained that the council had failed to carry out a reasonable assessment of the impact on his privacy. We took independent planning advice. We found that the council, as planning authority, had processed the planning application in accordance with the correct policy and procedure, and that a reasonable assessment of the impact on the privacy of neighbouring properties was carried out. As such, we did not uphold the complaint. Related reading View Decision Report 201602380 as a PDF (10.83 KB) Updated: March 13, 2018

Mr C complained that the council's Scottish Welfare Fund team had taken an unreasonable length of time to fulfil a community care grant award for removal costs. Mr C said that, as a result, he incurred additional rent charges due to not being able to move into his new property and not receiving housing benefit for that new property until he was a resident there. He was also unhappy with delays in the council responding to his complaint and not being kept updated on the progress of his complaint. We noted that the council processed his community care grant application well within the statutory timescales. The council uses a particular removal firm to fulfil awards and, after an award is made, informs the firm and leaves them and the applicant to liaise about the details of the removal. We found nothing in the Scottish Welfare Fund regulations or statutory guidance to suggest that this arrangement was not allowable. We also noted that the council contacted the removal firm for an update after a reasonable length of time. The firm informed the council that they had issues contacting the applicant but were able to make arrangements soon afterwards. Overall, we did not find any evidence of maladministration during the application process or in the council's method of fulfilment. Therefore, we did not uphold this aspect of Mr C's complaint. However, we did find that the council took an unreasonable length of time to respond to Mr C's complaint. We also found that they did not keep him updated and that they missed their own timescales that they laid out to him. Although there was an apology in their response to him, we did not consider that it was adequate or that their response fully explained the reasons for the delays. Therefore, we upheld this aspect of Mr C's complaint and instructed the council to provide Mr C with a fuller explanation and an apology for the delays.

Mrs C agreed to have insulation works carried out to her property from funding provided by a Scottish Government scheme. Mrs C complained to the council about works that were still outstanding and the standard of work carried out to her property. Mrs C was particularly concerned that her windows would not open properly. Our investigation found that the council did not have a direct technical role in ensuring the works carried out on this project were completed to a reasonable standard, as they had engaged the services of a managing agent for the project. We found that when issues were raised, the council took the appropriate steps, within their remit, by engaging with a managing agent to ensure that works were carried out to an appropriate standard. We did not uphold this complaint. Related reading View Decision Report 201608809 as a PDF (10.94 KB) Updated: March 13, 2018

Mr C complained that the council failed to protect his family lair (burial plot) in line with their responsibilities by approving the internment of the ashes of his brother-in-law without his knowledge or approval, and that the council failed to respond to his subsequent complaint in accordance with their responsibilities. We were satisfied that the council acted in line with the Regulations for the Management of Burial Grounds in East Lothian, and we did not uphold this aspect of his complaint. However, we upheld Mr C's complaint about the council's response to his subsequent complaint, as we found that the council did not respond to Mr C's complaint within 20 working days and failed to keep him appropriately updated. The council told us they had since improved their complaints handling processes, and had carried out staff training, and they provided us with evidence of that. Related reading View Decision Report 201605830 as a PDF (10.97 KB) Updated: March 13, 2018

Mr C complained that the council had unreasonably failed to act in line with their responsibilities in overseeing a programme of works that was carried out in the area by a third party company. Mr C considered that the works carried out at his home had not been done to a reasonable standard and also complained that the council had not handled his complaint about this appropriately. After investigating Mr C's concerns about the oversight of the programme of works, we did not uphold his complaint. We found that the council had used a managing agent to oversee the programme of works and there was evidence that a supervisory service was provided by them. While the council had no liability or responsibility for the works, we found that when issues arose at Mr C's property, they took an active co-ordination role to work towards resolving these. However, we found that in responding to Mr C's official complaint, the council failed to respond within the 20 working days specified in their complaints handling procedure. Therefore, we upheld this aspect of Mr C's complaint and made recommendations to the council.

Mrs C made an application for a High Hedge Notice under the High Hedges (Scotland) Act 2013 Act. The council notified Mrs C and her neighbours of consideration of the high hedge application. Approximately a month later, a site inspection was carried out. Based on the inspection, the council reached the view that the trees in question did not qualify as a high hedge, and the council refused the application on this basis. Mrs C complained that the council unreasonably failed to process the concerns she had about planting in her neighbour's garden. She raised particular concerns about the stage in the process at which the council considered the question of whether the trees amounted to a high hedge. We obtained independent planning advice in relation to Mrs C's complaint. We found that the council had reached a particular decision about the process for a high hedge application, based on their legal advice. However, we considered that having reached that decision, the council should have been clear about the process they were following to the complainant (who expected the council to follow the guidance), and moreover, appropriately escalated their concerns about the guidance to the Scottish Government. Therefore, we upheld the complaint.

Mr C complained about a property he rented from the council and about their handling of his complaint. Two days after signing his tenancy agreement, Mr C reported that the heating was not working. He also raised a number of additional concerns about the property including problems with a fuse box, windows and insulation, and about how the council conducted repairs. Based on the evidence available, we found the council acted in accordance with their allocation policy when letting the property. The council provided evidence that the heating system had been in working order after installation. The council also provided a property survey report evidencing that they conducted a reasonable assessment of the property. We also found that the council acted in accordance with their repairs policy in relation to the property. The council's records indicated that repairs were attended to within the council's time-frames. We therefore did not uphold this aspect of Mr C's complaint. However, we found that the council did not respond to Mr C's complaints within a reasonable time-frame. In particular, we considered the council should have recognised his complaint at an early stage and provided a response accordingly. We therefore upheld this aspect of Mr C's complaint.

Mrs C complained that she was charged when she failed to respond to contact from the council regarding a gas safety visit. The council said they had sent her two letters, the engineers had called on her twice and left postcards asking her to contact them and they had heard nothing from her. They then hand-delivered a letter telling Mrs C she would be charged for having not previously responded to them and would face a larger charge if she continued to fail to contact them as the council would force entry to her home to carry out the safety checks. At this point, Mrs C contacted the council and said she had not received any of the previous communications. We found that the council's policy is to call the tenant after the first two attempted visits. There was no evidence to suggest this had been done. As the council could not demonstrate they had followed their procedure, we upheld Mrs C's complaint.

Mrs C complained that the council had failed to take all appropriate steps in relation to her reports of anti-social behaviour. During our investigation we noted that the council's anti-social behaviour policy gives staff discretion to decide how to investigate complaints and to decide what action, if any, should be taken. By law, we are not able to question these decisions unless there is evidence of administrative error in reaching the decision. The council's policy indicated that mediation and noise monitoring should be considered and we saw evidence that this had happened. We were satisfied that the council had taken appropriate steps in line with their policy, and so we did not uphold this complaint. Mrs C also complained that the council had not properly considered and assessed her claim for damage caused to her property. During our investigation we found that the insurers had been supplied with sufficient information by the council. We therefore did not uphold this complaint. Related reading View Decision Report 201507724 as a PDF (11.02 KB) Updated: March 13, 2018

Mr C complained about the council's handling of matters relating to his granddaughter (Miss A). His son (Mr A) had lost custody of his daughter (Miss A) following separation from his wife (Ms D). Whilst pursuing access to Miss A through the social work department, Mr A and Mr C raised a number of concerns about how their complaints were handled, the accuracy of information in reports, and allegations made about Mr A which they did not consider to be accurate. They also complained that Mr A's application for housing was not handled fairly. We were satisfied that Mr C and Mr A's complaints were handled appropriately through the social work complaints procedure. Those issues that could not be considered were directed towards other more suitable organisations. We were also satisfied that Mr A's housing application was fairly handled. We found that the council consistently acted with Miss A's interests in mind and found nothing that would question the validity of decisions made regarding her welfare. That said, we were critical of the council for failing to clearly explain the role of a person appointed to support Ms D, and for failing to properly document their consideration of counter-allegations that Mr A had made against Ms D.

Mr C complained about the council as he said that plastering repairs to his property had been outstanding since he moved in and were still not completed over a year later. We found the council's records showed that he had been asked on a number of occasions to strip the wallpaper in his home to allow a full inspection to take place. The council had only received notification that this had taken place a couple of months prior to Mr C's complaint. There had been some further delays since then, and the works had not been completed until around two months after the estimated completion date. However, the reasons for this were beyond the council's control, and we were satisfied from their records that they had taken reasonable action to ensure the works were completed as quickly as possible. Related reading View Decision Report 201502284 as a PDF (10.97 KB) Updated: March 13, 2018