SPSO Individual Decisions

C was living in a residential unit for young people who are looked after by the council. C complained that the council failed to take appropriate action when they raised safeguarding concerns about the unit manager and failed to investigate a breach of confidentiality when C received abusive messages from a former member of staff. C also complained that the council had failed to keep them informed about decisions made about the future of the residential unit and their complaints had not been handled in accordance with the council’s complaints procedures. We took independent advice from a children and families social worker. We were satisfied that C had been kept reasonably informed about the position of the future of the unit. Therefore, we did not uphold this part of C’s complaint. However, there were some failings in relation to communication and record-keeping in response to the safeguarding concerns raised. There were also failings in the investigation into abusive messages from a former member of staff and in the complaints handling. Therefore, we upheld these parts of C’s complaint.

C complained about the council’s handling of allegations that their child made against them, including decisions taken to remove their child from the family home on the evening of the incident, but then considered safe to return the following day. C also complained about a lack of support for their family following the incident. C made a subsequent complaint about the council’s handling of disclosures made by their child to social workers regarding a previous overdose. In response to the complaints, the council said that once a child protection issue was raised by C’s child, this was responded to quickly and in line with child protection procedures. Decisions about where C’s child should stay whilst police investigations were ongoing were taken in collaboration with the family and it was determined following a risk assessment that there was no grounds to require C’s child to stay away from the family home. The council explained the nature and purpose of follow up meetings. With respect to disclosures made by C’s child that they had previously taken an overdose, the council said that the social worker’s professional opinion was that it was not necessary to pass this information on to the child’s parents, and instead recorded a note of the incident. The council did however acknowledge that there was no record of why the social worker had come to this determination and course of action. We took independent advice from a social work adviser. We found that whenever information is provided concerning actual or alleged abuse, this must be investigated and we considered that actions taken by the council’s social worker to be reasonable in this regard. With respect to decision making around removing C’s child from the family home, whilst the circumstances are disputed, the records indicated that there were discussions with the family about the decision making in this regard and additional factors, including the lateness of the day, were taken into consideration. The

C complained about the council’s decision-making in relation to the allocation of Scottish Government Town Centre funding. In terms of the relevant governance arrangements, local Area Committees were expected to identify and rank eligible projects for the funding. C complained that their local Area Committee had failed to publicise the scheme, failed to invite applications and failed to discuss the funding in meetings. C complained that there was a lack of transparency in the council’s decision-making process. With regard to the complaint about lack of community engagement, the council said that they were not operating a challenge fund. The council’s position was that the grant was allocated to projects in accordance with the governance arrangements agreed by the Environment, Development and Infrastructure Committee. We found that the council failed to follow appropriate processes when making decisions regarding the allocation of Scottish Government Town Centre Funding. Specifically, we found that the council failed to evidence how they followed the agreed process that Area Committees become involved in identifying and recommending projects. There was no public record as to how the decision to recommend a particular project was reached and there was no evidence as to how this project was assessed as meeting the eligibility criteria. Taking all of the above into consideration, we upheld the complaint.

C complained about the council's social work department's handling of child protection concerns that were raised about their children and their subsequent removal from the family home. C was not at home at the time and said that they objected to the decision. C complained that their spouse also did not give consent to the children being removed and, therefore, the appropriate powers were not used to remove the children. The council said that they understood that C's spouse had given their verbal consent to the children's removal; however, they acknowledged there was a failure to prepare the necessary paperwork prior to visiting the children's home. As part of our investigation, we reviewed the relevant case records and took independent social work advice. We found that there were failings to properly obtain consent, that there was confusion over the legislation being used to remove the children and that there was a failure to explain to either C or their spouse what the legislative framework was. We found that the council failed to follow their child protection procedures and, therefore, upheld the complaint.

C complained about the council's involvement in respect of the Welfare Guardianship Order (order which allows someone to make ongoing decisions on behalf of an adult with incapacity) application process. C had applied for a guardianship order in respect of their adult child (A). As part of this process, C's solicitor wrote to the council to request the production of a suitability report. The council allocated a mental health officer (MHO) to carry out this task. Due to a variety of reasons, the production of a suitability report took a significant length of time. C complained as they felt the council and the MHO unreasonably sought to delay and hinder the progress of their guardianship application. They highlighted that the MHO's communication with doctors required to submit incapacity reports and their involvement in an Adult Support and Protection referral as evidence of this. In C's view, the MHO had acted outwith their remit. We took independent advice from a social worker. We found that the council and the MHO involved in the guardianship process acted reasonably and within their remit. We acknowledged that the process took an unusually long length of time and that this must have been very frustrating for C. In addition to this, we recognised that the MHO and C held very different opinions on A's capacity. However, we were satisfied that it was appropriate for the MHO to provide their professional views and input as part of the guardianship process and that they had carried out their responsibilities appropriately. Therefore, we did not uphold this complaint. Related reading View Decision Report 201810255 as a PDF (24.51 KB) Updated: January 20, 2021

Ms C complained that the council failed to ensure that there was adequate support in place for her child (Child A) at school. The council had accepted that there were occasions when information about Child A was not taken into account and there were occasions when it was not fully shared. There was also insufficient up-to-date information for new staff at the school and there should have been more proactive partnership working with mental health services. In view of these failings, we upheld the complaint. Ms C also complained that Child A's teacher had unreasonably failed to support them in class. We did not find any clear evidence of failings in relation to this and we did not uphold the complaint. Ms C complained that the head teacher at the school unreasonably failed to fulfil their role as named person and lead professional under the Highland Practice Model. We found that the child's plan in place at the start of the school year had been out-of-date and there were then delays in updating this. We upheld this complaint. Finally, Ms C complained that the council had failed to carry out a reasonable investigation into her complaints. We found that the council had carried out a thorough investigation, but that the response did not provide adequate information about the action the council would take to put things right or to ensure that the failings were not repeated. It also failed to adequately apologise for the failings identified. For these reasons, we upheld this complaint.

Miss C complained that the council failed to respond reasonably to reports that her child (Child A) was being bullied at school. We found that the council's bullying policy and guidance does not oblige the school to take specific actions in relation to pupils. It obliges them to take some action, based on the individual circumstances of the reported incident(s). The council have the discretion to decide what action they choose to take, whether to inform parents/carers, whether to liaise with other agencies and whether to implement wider school interventions. Having reviewed the action taken by the council, we were satisfied that they acted in accordance with their policy and guidance on bullying. We did not uphold Miss C's complaint. Related reading View Decision Report 201810535 as a PDF (24.05 KB) Updated: March 18, 2020

Mr C complained that the council had failed to handle a planning appliction properly and to respond reasonably to complaints about the planning process. Mr C suggested that the council had produced an inaccurate report on the planning application, which had deliberately misled Planning Committee members. Mr C also complained that the council had attempted to improperly influence a statutory consultee by putting pressure on them in order to reverse their objection to the application. Mr C said the council had refused to correct this, even when presented with factual evidence to the contrary. We took independent planning advice. We found that the council had acted appropriately and that the report had provided an accurate summary of the application, the objections to it and the council's statutory duties. We found that the council had handled the application reasonably and that they had responded appropriately to the complaints they had received. The council did not dispute having contacted the statutory consultee, but said the reasons for this were appropriate. The advice we received agreed with this and we found no evidence that the council had attempted to unduly influence the consultation process. We did not uphold the complaint. Related reading View Decision Report 201707509 as a PDF (23.85 KB) Updated: July 24, 2019

Mrs C complained that the council failed to handle a planning application reasonably and failed to handle her complaint appropriately. We took independent advice from a planning adviser. We found that the council had met their statutory obligations to make information about the application publicly available and had reasonably exercised their professional judgement in assessing the application. We found that the council's actions were reasonable and did not uphold this part of Mrs C's complaint. In relation to the handling of Mrs C's complaint, we found that there was an inconsistency in the report on the planning application which had not been identified by the council's complaint investigation. We upheld this part of Mrs C's complaint and provided feedback to the council. However, we noted that this error did not make a substantive difference to the outcome of Mrs C's complaint. Related reading View Decision Report 201707741 as a PDF (23.72 KB) Updated: April 17, 2019

Mr and Mrs C complained about the way the council handled two planning applications for a new house being built near to their home. They also complained that the actions of council officers at a planning meeting had been unreasonable, as the council officers had met with the applicant. We took independent advice from a planning adviser. We did find some omissions in the report of handling relating to the initial planning application, and we provided feedback to the council about this. However, on the whole, we concluded that the council's handling, processing and assessment of the planning applications were reasonable. We did not uphold these aspects of the complaint. Regarding the meeting council officers had with the applicant, we found that this happened in order to check some information about the application. They did this at the committee meeting to avoid the need for the decision on the application to be deferred to another meeting. We considered that this was reasonable, and we noted that the council had apologised to Mr and Mrs C for not explaining why the discussion was taking place at the meeting and for not including them in the discussion. We did not uphold this aspect of the complaint. Related reading View Decision Report 201703748 as a PDF (23.86 KB) Updated: March 20, 2019

Mr C complained that the council failed to provide a reasonable response to his correspondence about planning and enforcement and other issues in relation to land near his home. We took independent advice from a planning adviser. We found that, in general, the council had tried to address the issues Mr C raised in his correspondence. However, we identified a number of failings: • the council did not provide an adequate explanation to Mr C about their delay in progressing matters in relation to a planning breach • they did not advise him that he should notify them of a planning breach through their electronic enforcement system • their response could have been clearer in relation to whether action that was being taken would resolve the enforcement issues • their response incorrectly stated that the enforcement case must be suspended until planning applications had been determined • they did not provide an adequate response to his comments about aggregation in relation to procurement • they should have taken further action in relation to comments made in advertising by one of their contractors • they failed to keep him updated on the delay in responding to his complaint. In view of these failings, we upheld Mr C's complaint.

Ms C made a number of complaints to the council in relation to breaches of planning control and anti-social behaviour at a neighbouring holiday let property. Ms C complained that the council's response to both her concerns was unreasonable. We took independent advice from a planning adviser. We found that the council had been slow to respond to a number of breaches of planning control and that their reports were inconsistent in relation to how they assessed planning applications against relevant policies. However, we noted that they had already identified ways to improve their service going forwards, including stopping the use of operational management plans as a planning approval condition. We also found that the council had advised Ms C to contact the police about anti-social behaviour but should have passed these reports to the environmental health department, in line with their planning enforcement charter. Therefore, we upheld both of Ms C's complaints.

Mr and Mrs C complained on behalf of their son. They said that the council failed to provide him with an appropriate child’s plan and that they failed to provide him with an Education Maintenance Allowance (EMA) application form. Mr and Mrs C said the child’s plan contained inaccurate and out of date information. However, Mr and Mrs C could not provide any evidence to support this complaint, such as why the plan given to their son was inappropriate or why the plan was inaccurate. We found that Mr and Mrs C had an opportunity to provide comments to their son's school about the child’s plan, and that they could inform the school of any factual inaccuracies they believed there to be. In relation to the EMA form, we found that their son's name was on a distribution list for EMA letters, and that the scheme was widely publicised in the school. We did not uphold Mr and Mrs C’s complaints. Related reading View Decision Report 201603590 as a PDF (10.97 KB) Updated: March 13, 2018

Mr C complained that the council had advised him to submit a building warrant application without first reviewing information he had previously submitted. He also complained that the council accepted his building warrant application before ensuring that all necessary information had been submitted. He was also concerned that, once the building warrant application had been submitted, it took the council a considerable time to issue his building warrant. He felt this delay was unreasonable. The council responded to Mr C's complaint and explained that, because his plans included a drainage system which was untested in the UK, the council were unable to assess this aspect of the application at the pre-warrant stage and this was why Mr C was encouraged to submit his application for a building warrant. They acknowledged that following the submission of the application it took a considerable time for the building warrant to be issued. However, they explained that this was because they had to consult with other external agencies to seek opinions on the suitability of the drainage system. As soon as they obtained responses from these consultees, they approved the building warrant. Mr C was unhappy with this response and brought his complaint to us. We considered the information provided by both parties. We noted that the drainage system proposed was new and untested, and we noted the considerable work undertaken by the council to seek approval for this system. We were satisfied that it was reasonable for the council to advise Mr C to submit his warrant application to allow the drainage issues to be considered in more detail and we noted the time taken for the council to obtain responses from consultees. We did not find evidence of administrative failure in the way the council dealt with this matter and, as a result, we did not uphold Mr C's complaints. Related reading View Decision Report 201602843 as a PDF (11.38 KB) Updated: March 13, 2018

Ms C complained that the council had failed to respond reasonably to the concerns she raised about the quality of service she had received from the council and their contractor in relation to the installation of a new heating system at her home. Ms C had complained to the council about the safety and reliability of the new heating system, as well as damage done to her carpet during the installation work. She was unsatisfied with the council's response to her complaints and brought them to us. We found that, although the council acted in line with the requirements of the housing repairs policy, there were failings in their handling and response to Ms C's complaint. The council failed to log Ms C's initial complaint properly and they did not issue a reply to the concerns she had raised. They also failed to acknowledge a subsequent complaint Ms C submitted, and failed to respond within their timescales. We found that the council also failed to be clear with Ms C about their processes for applying for and granting compensation for damaged property. We upheld Ms C's complaint. We noted that the council had since acknowledged some of their failings, and we asked them to provide evidence of the action and staff training they had carried out as a result of Ms C's complaint.

Mr C complained that the council unreasonably rejected his planning application on the basis of reasons which were outwith their jurisdiction. He said that as a result he had to appeal to the local review body, who granted consent, and that this process resulted in additional costs for him. We found that the council rejected the application on grounds which did not appear to fall within the remit of the planning authority. The rejection focused on an element of the application which related to the marine environment and which was subject to licensing through Marine Scotland, rather than the planning authority. We noted that, where there was doubt about jurisdiction, this should be reflected in the planning officer's report and that this did not happen in this case. We also noted that no reference to the relevant Scottish Government planning circular was made in the officer's report and that the officer failed to fully explain their assessment of the proposals against the planning policy which was used to refuse the application. For these reasons, we upheld the complaint.

Mr C complained that the council failed to take reasonable action in response to reports of bullying of Mr C's daughter at her school. Mr C also complained that the council failed to respond reasonably to his subsequent complaints. We did not uphold Mr C's concerns about the actions taken concerning the bullying because the evidence showed that the actions taken by the school were in line with the steps set out in the council's policy. We noted that the council failed to process Mr C's complaint in line with the requirements of their complaints procedure. The complaint was not acknowledged within the required timescale and the council failed to keep Mr C informed about an extension to the complaint investigation, although the actual investigation itself was carried out to a reasonable standard. For this reason, we upheld this aspect of Mr C's complaint. Related reading View Decision Report 201606311 as a PDF (10.95 KB) Updated: March 13, 2018

Miss C complained that the council failed to ensure that the school attended by her daughter (Miss A) had an anti-bullying policy in place. She also complained that the council had failed to take reasonable action in response to the bullying of Miss A at this school. We upheld Miss C's complaint about the anti-bullying policy. Although the council's overarching policy was thorough, we found that the school did not have its own policy in place that sufficiently met the requirements of the council's policy. We did not uphold Miss C's complaint about the council's action in relation to reports of Miss A's bullying. We found that overall the council had taken significant action in line with the requirements of their policy to address the concerns raised and we found this to be reasonable.

Mr and Mrs C complained to us about the handling of a planning application for a wind turbine on land next to their property. They were concerned that the applicant had submitted inaccurate plans and that the application was registered under an inaccurate address. They were also concerned that the council had not fully assessed the impact of noise and that once the turbine was running, it created a noise nuisance. We took independent advice from a planning adviser. The adviser noted the poor quality of the location plans provided with the application and the inaccurate address. They were, however, satisfied that the noise impact assessment and other information provided to the planners by the environmental health service and the energy company were reasonable. During our investigation it became apparent that there was confusion over whether distances related to the curtilage of Mr and Mrs C's property or their house. This was not evident from the council's records, and created significant confusion as to whether the planning application had been appropriately handled. Mr and Mrs C also raised concerns that there had been a lack of enforcement action in relation to the mast that remained in place, despite conditions on its removal. Based on the inaccuracies in plans and the lack of evidence of appropriate consideration of the distances involved, we upheld the complaint, and made recommendations to address the issues raised.

Mr C complained that the council had unreasonably failed to include all objections to a planning application on their e-planning portal and that, although they acknowledged they failed to place his objection on the planning portal when considering his initial complaint, they told him it was on the planning portal when they responded to him at stage two of their complaints procedure. Mr C was unhappy with this inconsistency. Mr C was also concerned that the council had ignored a planning condition restricting the start of development and had gone ahead with preparatory works which, Mr C believed, was contrary to the planning condition. We reviewed the records and agreed with Mr C that his objection was not on the e-planning portal at the time the application was being considered. We upheld this element of Mr C's complaint. We noted, however, that his objections were summarised in full in the planning officer's report to committee and they were, therefore, fully aware of his views. We also noted that the stage two response to his complaint was reasonable as Mr C's comments were on the online planning portal, but they were summarised in the report rather than being presented in full. We also noted that the condition Mr C considered was being breached by the council starting works had in fact been amended to allow works to go ahead at an earlier stage. For this reason, we did not uphold these aspects of Mr C's complaint. Related reading View Decision Report 201508232 as a PDF (11.24 KB) Updated: March 13, 2018

Mr C complained that the council failed to follow correct procedures when diverting a long-distance pathway which was also part of the council's core path network. He said this removed his right to object and comment on the proposed diversion. We found that as the council were not required to close and divert the route, the consultation process would not apply. We found no evidence of administrative failure in the way the council dealt with this matter and did not uphold the complaint. Related reading View Decision Report 201507925 as a PDF (10.82 KB) Updated: March 13, 2018

Mr C complained about the time taken to install a warning sign on the road near his home, about the council's communication with him, and their handling of his complaint. We looked at the council's file on Mr C's complaints and concluded that, in the circumstances, they had taken an unreasonable time to install the sign (it had taken eight months from the date it was agreed that the sign should be installed). The council failed to respond to Mr C's requests for progress updates or took an unreasonable time to do so, and they did not give him a detailed explanation for the delay in installing the sign, which he specifically asked for. We also found that the council failed to follow the complaints procedure, and their responses to him did not always include clear apologies. We upheld Mr C's complaints.

Mr C complained that the council unreasonably sent his council tax demands to the incorrect address despite him notifying them of his correct address several times. He also complained that they failed to process his forms for council tax benefit. We found he had contacted the council to request that his address be changed and that the council failed to do so within a reasonable timeframe. We upheld this aspect of his complaint. In terms of his council tax benefit application, we noted the council's records showed that they issued forms to Mr C on a number of occasions but that they had no record of completed forms being returned. We did not uphold this aspect of Mr C's complaint as we found no evidence to support his statement that these forms were returned. We recommended that the council write to Mr C to apologise for the delay in updating his address.

Mrs C complained that a track running next to her house on land she owned was included in a public list of core paths identified by the council, intended to give walkers and cyclists recreational access throughout an area. Mrs C thought she, her neighbour and the Forestry Commission had the exclusive right to use the track. She said nobody consulted with her directly before including the track in the core path network. We found there was a general right of access for walkers and cyclists to land and inland water throughout Scotland. Mrs C provided no evidence that her track was excluded from this and we found that, even before the track was designated as a core path, people had the right to walk on it. We found that the council were not obliged to consult directly with individual landowners under the legislation and concluded that the council's public consultation had been reasonable. Related reading View Decision Report 201501498 as a PDF (11.02 KB) Updated: March 13, 2018

Mrs C complained about a mental health assessment of her late son, which was conducted by a mental health officer (MHO) employed by the council. When we investigated Mrs C's complaint, we found that, although the MHO was employed by the council, at the time of the events, they acted as part of an NHS community mental health team. The council and NHS board agreed that, in this case, the NHS was responsible for the actions subject to the complaint, and we closed the complaint about the council and considered the NHS board's involvement as a separate case. Related reading View Decision Report 201501679 as a PDF (10.83 KB) Updated: March 13, 2018