Local Government

Summary

C is the owner of nurseries which provide childcare. During normal operation, C receives funding to provide an amount of childcare hours to parents without charge as these are funded by the Scottish Government. During the COVID-19 pandemic, the advice was for childcare providers to close their businesses unless they were providing critical childcare for keyworkers. C closed their businesses during this time.

When arranging to reopen their business, C sought advice from the council on whether or not C can or should charge parents for critical childcare. The council told C that critical childcare should be free at the point of delivery and that C should not charge parents, however, they also advised that C could charge in certain circumstances. The council told C that they should use funding they received during the lockdown to cover costs when the nurseries reopened. C felt that the advice they received was in contradiction to advice that they received from the Scottish Government.

C had previously raised a complaint with the council about funded hours (prior to the impact of the pandemic) and, in light of this, when C complained about the advice they were given, the council decided that the complaint should not be investigated via their complaints handling procedure. This office took an early view and asked the council to investigate the complaint and provide a further response. After a further response was issued, C remained dissatisfied and brought their complaint to us.

We found that the advice given by the council was, at times, contradictory and did not appear to be in line with the guidance issued by the Scottish Government. We also found that the council did not appropriately investigate C's complaint at the time it was raised, or when this office asked them to undertake further work.

In light of this, we upheld C's complaints.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for providing unclear and conflicting information about the right to charge parents fees, and for the failure to investigate C's complaint appropriately when it was initially submitted and when asked to do so by this office. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.

What we said should change to put things right in future:

• The council should ensure that advice given is clear, consistent, and in line with the relevant guidance, policy or procedure.

In relation to complaints handling, we recommended:

• The council should ensure that complaints are recognised, logged, and responded to in line with the Model Complaints Handling Procedure (MCHP). When this office asks the council to carry out further work on a complaint, they should ensure that they respond in line with our request. When required to carry out further investigation, the council should ensure that the complaint is logged and responded to in line with the MCHP. If the council is unclear what this office is asking them to do, they should engage with us to clarify prior to beginning any further work. When the council receives complaints about specific members of staff, they should ensure these are investigated in line with the MCHP, paying particular notice to the guidance on investigation and who should investigate/respond to a complaint (i.e. someone not involved in the complaint).

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C, a support and advice worker, complained on behalf of their client (A) that the council had unreasonably failed to provide A with kinship care assistance, including financial support. A became the carer to their family member (B) when B's parent was unable to care for them.

We took independent advice from a social work adviser. We found that a number of contemporaneous records were missing. The record-keeping failures in this case mean that there is no record of whether the council have met their legal and procedural obligations. In particular, there is no definitive record of whether a Section 25 order was signed and rescinded or why the decision to carry out a comprehensive assessment and refer to the Children's Reporter was not followed through.

We found that these record-keeping failures had left the family in an unreasonable position where there is difficulty corroborating what happened and therefore placing them at a disadvantage in terms of accessing a kinship care assessment and any appropriate allowances. In the absence of records, we considered that the council had unreasonably failed to take sufficient account of the evidence available from the family and the social worker involved at the time (both of whom indicated that a Section 25 order was signed). Based on the evidence available, we considered that it was likely that a Section 25 order was signed and at that point B became a looked after child which means they became an eligible child in relation to kinship care under the Children and Young People (Scotland) Act 2014. We also noted that the Kinship Care Assistance (Scotland) Order 2016 extended the definition of an eligible child to include a child who was previously looked after.

In light of the above, we considered that the council failed to provide A with reasonable kinship care assistance. As such, we upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for failing to maintain case records regarding A and B's involvement with social work, failing to take sufficient account of the evidence available which indicated that a Section 25 order was signed, making B a looked after child and an eligible child in in relation to kinship care. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Complete a kinship care assessment, in line with relevant guidance, in respect of A's care of B. As far as possible, consideration should be given to the evidence available indicating that a Section 25 was signed, making B a looked after child and the circumstances of the household when the assessment should have originally taken place (not just the current circumstances). If, following the assessment, the council is satisfied of eligibility, consideration should be given to the backdating of any kinship allowance to when it would have commenced had the council appropriately considered the evidence available indicating that a Section 25 was signed.

What we said should change to put things right in future:

• Where written records are not available due to a failure in record-keeping, information from families and social work staff should be appropriately taken into account.
• Written case records should be appropriately maintained and retained in accordance with relevant legislation and guidance.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C, a support and advocacy worker, complained on behalf of their client (A) in relation to the council's decision not to make payment of kinship care allowance in respect of children in A's care. C stated that A was entitled to receive kinship care allowance on the basis that both children, whom A had been caring for following the death of a parent, had initially been looked after by the council given that the children's surviving parent had agreed to transfer responsibility for their care to the council immediately following the other parent's death. A had also secured residency rights in respect of the children by obtaining an order under section 11 of the Children (Scotland) Act 1995, which C stated was to be considered as a kinship care order in terms of the Children and Young People (Scotland) Act 2014.

In response, the council stated that, while the agreement of the children's surviving parent had been sought to transfer their care to the council after the death of the other parent, it had ultimately not been necessary to proceed on this basis given that A had stepped forward to care for the children almost immediately. Accordingly, the children had never been formally looked after. In addition, the council stated that A and the children's extended family had chosen to look after the children themselves on a private basis without the need for further input from the council's social work department. For these reasons, the council considered that A was not entitled to receive kinship care support.

We took independent advice from a social worker. We found that A had stepped forward to care for the children within a matter of hours of the council seeking the children's surviving parent's agreement to transfer their care to the council. We agreed with the council's position that it had ultimately not been necessary for them to proceed further in this regard and, accordingly, the children had never been formally looked after by the council. We further agreed that A and the children's extended family had also decided to look after the children on a private basis without the need for further social work input. However, we considered that A had agreed only to care for the children on a temporary and emergency basis until the wider family had been able to decide on how the children should be cared for. Accordingly, a period of around three weeks had passed between A stepping forward to care for the children and the decision being taken by the family to care for them on a private basis, during which time it was not certain that A would agree to care for the children on a full-time basis.

We also noted that the council had remained actively involved in decisions about the children's welfare during this period. For these reasons, there was evidence to suggest that the children had been at risk of becoming formally looked after and that the council should have treated A as an informal kinship carer during the three week period, providing them with the appropriate financial support. We further noted that, as A had subsequently obtained an order under section 11 of the 1995 Act, it would be open to them to make an application to the council to be assessed as a kinship carer. We considered that the council's case records did not clearly show the justification for decisions that had been made and that there was evidence to suggest that the council had failed to carry out necessary checks prior to placing the children with A, as set out in the council's own policies. We also found that the council had failed to handle C's complaint in accordance with the relevant complaints handling processes in place at the time.

For these reasons, we upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for failing to assess A regarding the need to provide support and financial assistance under section 22 of the Children (Scotland) Act 1995 or section 50 of the Children Act 1975, failing to communicate reasonably with A in respect of the legal basis on which the children were residing with A and thereafter, and failing to handle the complaint made on behalf of A in accordance with the Social Work Model Complaints Handling Procedure. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Calculate the amount of financial assistance that A would have been entitled to receive for the period specified and make payment of this amount to A.
• Advise A how they can make an application to be assessed as a kinship carer. Should it be decided that A is entitled to kinship care assistance, the council should also give consideration to whether this should be backdated, in view of the fact that A was not advised that they could make such an application when C made known A's wish to be considered as a kinship carer.

What we said should change to put things right in future:

• The council should ensure that the checks set out within their Looked After Children procedures are carried out prior to agreeing to children being cared for by adults with whom they are unfamiliar, unless there is clear evidence why the checks are not required.
• When decisions are made about the long-term living arrangements for children with whom the council's social work department has been involved, the council should ensure that all parties are sufficiently clear as to the legal basis on which those arrangements have been made.

In relation to complaints handling, we recommended:

• Complaints should be handled in line with the Local Authority Model Complaints Handling Procedure, which can be found here: https://www.spso.org.uk/the-model-complaints-handling-procedures.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C complained that the council failed to provide kinship care allowance after they had moved into the area from England, despite them having custody of their grandchild through a Residence Order (a court order which determines where a child should live) from an English court. The council had refused on the basis that they considered the English council should be responsible for the cost of the allowance, unless and until the Residence Order was confirmed by a Scottish court. C was also concerned that the council had failed to provide appropriate support to them and their grandchild.

We took independent advice from a social worker. We found that, apart from a delay of a couple of months when C first applied for assistance, the council had acted appropriately, and that the order in question was not one that was transferrable between England and Scotland. As such, we did not uphold C's complaints.

Summary

C raised a number of concerns about the social work service provided by the council in relation to the contact between their child (A) and A's non-resident parent. At the time of the complaint, the social work service was responsible for managing contact between A and the non-resident parent.

We took independent advice from a social work adviser. C firstly complained about the way the council acted in relation to concerns they raised about what was in A's best interest. We found that the council acted reasonably in relation to a number of the concerns C raised. However, we also found that there was a failure in one instance to carry out a risk assessment timeously. On balance, we upheld C's complaint.

C also complained about the way the council handled a meeting that had been arranged to discuss A's contact arrangements. We did not identify failings in relation to this aspect of C's complaint and we did not uphold the complaint.

Finally, we considered the council's handling of C's complaint. We found that the council's complaint response did not address a number of C's points of complaint and that it failed to include an apology for a service failing the council identified during their own investigation. We made recommendations in relation to complaint handling.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to carry out a risk assessment timeously; for the service failing identified in the council's stage 2 response; and for the issues with complaint handling. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.

What we said should change to put things right in future:

• National Guidance for Child Protection in Scotland and the National Framework for Risk Assessment should be followed in relation to assessing risk.

In relation to complaints handling, we recommended:

• Under the Local Authority Model Complaints Handling Procedure, an investigation should explore the complaint in more depth and establish all the relevant facts. The aim is to resolve the complaint where possible, or to give the customer a full, objective and proportionate response. Where failings are identified, an apology should be offered.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C complained on behalf of themselves and their neighbours. The council planned to redevelop the site of a former school, which is situated behind their properties. C raised a number of questions, concerns and objections on behalf of the local residents regarding plans for the site, maintenance of the area and the council's management of works being carried out on the site. Despite regular email and phone contact with the council, C complained that residents were not kept informed about work planned on the site or how their concerns would be addressed. C was also dissatisfied with the way their complaints about the situation were handled.

We found that the council generally recognised the impact the development had on the residents and took steps to address the issues that they raised. Whilst internally, they acted reasonably with regard to management and maintenance of the site and could show the reasoning as to why certain decisions had been reached, we found that the council's communication with C was poor. On a number of occasions, C would ask specific questions about aspects of the development, but would receive very general responses. This led to confusion and mistrust on the residents' part. While we found the council's communication to be poor, we considered that the council reasonably managed, maintained and repaired the site. We did not uphold this aspect of C's complaint.

In relation to complaint handling, we were critical of the council's handling of C's complaint. Whilst they responded to C's various calls and emails in good time, we again found that specific points raised by C were not addressed directly. We also found that, although C had direct access to a number of key members of staff, this meant that C's concerns were not escalated through a formal complaints process and largely went unresolved as a result. We upheld this aspect of C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the failures identified in the council's handling of the complaint. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• The council should contact C to check whether there are any outstanding concerns that have not already been responded to and that these are agreed in writing and responded to in full.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

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.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to correctly follow their child protection procedures. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.

What we said should change to put things right in future:

• The council should undertake further reflection on the findings of this investigation, taking into account in particular the summary of points we provided and implement relevant learning and improvement. This could involve a review of internal procedures and/or additional training for staff.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C complained that the council, as the building control and planning authority, failed to take reasonable action to address an alleged non-compliance with building control standards legislation and an ongoing breach of a planning condition in relation to the discharge of wastewater at the development site where they resided. C's own property had been built a number of years previously. An issue arose regarding the discharge of wastewater from new houses which were being built at the development site.

We took independent advice from a building control adviser and a planning adviser. We found that the developer initially planned to connect the properties at the development site to the sewer network and that building warrants were approved based on their proposals in this respect. When it became apparent that the sewer network required upgrading works before the new houses could be connected to it, we considered that the council undertook reasonable steps to ensure that the revised plan of using a septic tank as a temporary measure was acceptable in building standards terms.

We were satisfied that the council sought comments from relevant authorities (Scottish Environment Protection Agency and Scottish Water), both of whom were satisfied with the proposed temporary solution. We were also satisfied that provisions were made in later building warrant approvals to ensure that the developer took responsibility for decommissioning the temporary system and connecting to the sewer network once the upgrading works were completed.

In relation to C's complaint that the council failed to take reasonable action in relation to an ongoing breach of a planning condition attached to the development, we were satisfied that, whilst the council had a range of enforcement powers available to them, it was a matter for their discretion as to whether or not to take formal action, to allow the breach to remain, or to take less formal action with a view to reaching a resolution. We found that the council had acted in accordance with the relevant legislation and both national and local policy, procedures, standards and guidance including the terms of its own planning enforcement charter. We also found that there were currently attempts to resolve the problem which had not yet been exhausted and the council had left open the option for formal enforcement action to be taken if required.

We did not identify evidence of any maladministration on the part of the council in their handling of these matters and, therefore, did not uphold C's complaints.

Summary

C complained about how the council handled and assessed a planning application. The planning application related to a proposal for an extension to an existing business premises and was approved by the council. C's own business premises are located nearby and C raised concerns about how the extension would impact their business and the local area more generally. In response to C's complaint, the council acknowledged there were some failings in how the application was assessed and omissions in the Report of Handling. However, they concluded the application would have still been approved even if there were no failings in how it was assessed.

C complained that they did not think the council took appropriate action in response to the acknowledged failings and considered there to be other failings that the council did not identify in their stage 2 response. In addition to this, C complained about the council's sale of the land that the proposed extension is to be built on. In C's view, the sale of the land was not appropriately carried out by the council.

In respect of the first aspect of C's complaint, we took advice from an independent adviser with a background in planning. The advice we received, and accepted, was that there were further shortcomings in the assessment of the application and the content of the Report of Handling that were not identified by the council. While a number of C's outstanding concerns related to disagreements with the council's decision, we considered there to be examples of the council either failing to appropriately consider certain matters or not recording them in sufficient detail in the Report of Handling. As such, we upheld this complaint.

In respect of the second complaint, C was of the view that the land sold was classed as common good land and should not have been subject to sale. They also considered the council's sale of the land not to be in line with the European Commission's state aid rules. We concluded that the evidence did not support either of these conclusions and, therefore, did not uphold this complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to consider certain matters appropriately in their assessment of the planning application and for the fact that the Report of Handling did not contain sufficient detail about parts of their decision-making. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Given the failings identified in both the council and our investigations, comment on their view remains that there are no grounds or good planning reasons to revoke the planning permission. Provide justification for the decision reached to both C and this office.

What we said should change to put things right in future:

• Planning applications should be assessed thoroughly and in line with relevant guidelines. Reports of Handling should be appropriately detailed and contain clear justifications for the conclusions reached.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

C was in contact with the council in relation to their child's (A) transition from primary to secondary education. A had experienced negative behaviour while at primary school and C had concerns about A's safety as, if they transitioned to the secondary school linked with the primary school, the pupils involved in historic events would be attending the same school. C was in contact with the council about the assessments carried out in relation to A's safety and wellbeing and was seeking further information from the council in order to determine which school A would attend. The council restricted C's contact with them after some of their contact was deemed unacceptable.

C complained that the council unreasonably failed to provide them with the information requested in order for C to make an informed decision about A's education provision. We found that the council had ensured a wellbeing assessment and risk assessment was carried out for A for the secondary school. C remained of the view that there were issues relating to A attending this school and alternative schools were offered. There was information which C requested which could not be provided and there were reasons for why the council could not provide this. As such we did not uphold the complaint.

C complained that the council unreasonably expected C to make a decision about A's education provision without the information requested. While C remained of the view the level of information was insufficient, we found the level of information provided was reasonable in order for C to make an informed decision about A's schooling. It was reasonable for the council to expect C to make a decision based on the information available. We did not uphold the complaint.

C complained that the council unreasonably failed to provide an accurate risk assessment relating to A's attendance at the secondary school. We found that a reasonable risk assessment was carried out which took account of the views of A and A's parents. We did not uphold this complaint.