Local Government

Summary

C complained that Live Borders had failed to deal with their complaint appropriately. We found that it had been reasonable for the organisation not to pursue contact with witnesses who C had referred to and to instead ask that C obtained statements from them. We also found that the organisation had reasonably investigated the matter and had issued a reasonable response to C's complaint. Whilst there was a clear disagreement between C and the organisation about what had happened, there was no evidence that the organisation did not intend to conduct a genuine investigation or that they supplied dishonest and false information to C. We did not uphold the complaint.

Summary

C is an independent advocate who complained on behalf of their client (A). Following social work involvement, A’s child (B) was placed with kinship carers. This was a voluntary arrangement, in terms of section 25 of the Children (Scotland) Act 1995. After the relationship with kinship carers broke down, C said that A repeatedly informed social workers and said at meetings that they were no longer in agreement with the arrangement. A did not withdraw consent in writing or specifically say they withdrew consent, but A believed they did so by saying they were not in agreement with the local authority’s position. B was then placed with their other parent (D). A disagreed with that decision.

C complained that the Children’s Reporter (a person who makes decisions to help young people who need care and protection) was not made aware that A was not in agreement with the kinship care plan or with the plan to place B with D. B had no contact with D for four years before being placed with them. C said that A repeatedly expressed their views and those of B in relation to not wanting to be placed with D, but that these were ignored.

We took independent social work advice. We found that after the kinship care arrangement broke down, there followed a period of time during which B’s legal status was unclear. At this point the matter should have been referred back to the Children’s Reporter; this did not happen. We considered that it was incumbent on the council to ensure that there was absolute clarity regarding the legal status of B’s care and what A’s rights were. We found that the council did not do enough to satisfy this obligation or consider whether section 25 was still the most appropriate legislative framework to safeguard B. Taking all of the above into account, we upheld the complaint.

We asked the council to apologise to A but made no further recommendations given significant learning already identified by the council.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for failing to follow appropriate processes before placing B with D. The apology should recognise the impact of the council’s failings on A. In preparing the apology, the council should have regard to the new Quality Assurance system they refer to in their correspondence. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.

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

Mr C complained that the council failed to carry out an appropriate assessment of a planning application submitted by a recreational club that shares a boundary with his property. Mr C also complained that the decision notice, granting planning permission for the application, unreasonably failed to accurately implement the decision of the planning committee. The council concluded that they had carried out an appropriate assessment of the planning application and the planning permission reflected the decision of the committee.

We took independent advice from a planning adviser. We found that the council had carried out an appropriate assessment of the planning application. Therefore, we did not uphold this complaint.

In relation to Mr C’s second complaint, we found that the council had unreasonably failed to accurately implement the decision of the planning committee. We found that the wording of the planning condition was ambiguous and open to different interpretation. We concluded that, by not making the condition explicitly clear, the decision notice did not reflect the intention of the planning committee members accurately. Therefore, we upheld this complaint.

Mr C also complained that the council unreasonably failed to take action to ensure the club abided by what was outlined in their planning application and supporting documentation. The council considered that the actions taken by the club were in line with the planning permission granted and, as such, it was not appropriate for them to take any further action.

We found that the council had unreasonably failed to take action to ensure that the club abided by what was outlined in their planning application and supporting documentation. By including a condition that was open to interpretation, the council failed to provide a clear and unambiguous decision. As such, this enabled the club to carry out actions contrary to their stated intentions when the planning application was determined. We recognised that it may not have been possible for the council to take formal enforcement action. However, given the circumstances of this case, we concluded it was reasonable to expect the council to give further consideration to what informal steps they could take to resolve the situation. Therefore, we upheld this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for failing to accurately implement the decision of the planning committee as a result of including a condition that was unreasonably ambiguous and open to interpretation and for failing to take reasonable measures to ensure the club abided by what was the stated intention of their planning application at the time it was determined. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Consider what actions can reasonably be taken to ensure the club abides by what was outlined in the proposal detailed in the Report to Committee and supporting documentation, bearing in mind that planning permission has been granted and the conditions discharged. Update Mr C with details of what actions, if any, have been carried out and provide an explanation for the decision taken. If it is concluded that further involvement would be counterproductive or may have a negative impact on existing agreements between the different parties, an explanation for this should be provided to Mr C and this office.

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

• Planning decision notices should clearly and accurately reflect the planning proposal and the contents of the Report to Committee/Report of Handling. Planning decision notices, when decided by the planning committee, should clearly and accurately reflect the intentions of the committee members.

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

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 were also concerned that the council failed to respond to Mr C’s complaint about the council’s treatment of the SCT staff’s advice and that their explanation about their decision not to proceed with mediation could have been clearer. Therefore, we upheld this aspect of Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr and Mrs C for failing to signpost them to resolution mechanisms for disagreement regarding additional support needs; referring Mr C to their Antisocial Behaviour Policy, when they had been advised by their SCT staff that this was not the correct policy; failing to respond to their complaint about the council’s treatment of the SCT staff’s advice; and not explaining further what they meant by their consideration of ‘previous correspondence between you and the council’ when making their decision not to proceed with mediation. 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:

• Where internal advice is sought and a decision taken to act or not act on it, this should be documented; and council staff should explain their reasons not to proceed with mediation in full to parents.

In relation to complaints handling, we recommended:

• The council should appropriately signpost parents to resolution mechanisms for disagreement regarding additional support needs in cases of this type; and to respond to complaints in line with the Model Complaints Handling Procedure.

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

Mr C complained about the actions of the council’s social work services department. This was following referrals made by Police Scotland and an NHS board, after there were concerns about Mr C’s whereabouts and wellbeing. On the basis of these referrals, the council wrote to Mr C and advised him that they did not feel there was a need for Adult Services to intervene at that time but that he could contact them if there was anything else he felt they could support him with.

In Mr C’s view, the council unreasonably failed to contact him by telephone and within 24 hours, despite assurances that were given to him by other parties. In addition to this, he said that the council’s conclusion that there was no requirement for Adult Services at that time was unreasonable.

We took independent advice from a social worker. We concluded that it was reasonable for the council to write out to Mr C rather than phoning him within 24 hours. This was because the referral information provided to the council by Police Scotland and the NHS board did not indicate that there was a requirement to contact him by phone or within 24 hours.

We also found that it was reasonable for the council to conclude that there was no role for Adult Services at that time. Again, the council’s decision was based on the referral information provided by Police Scotland and the NHS board. This information stated that there were no immediate concerns for Mr C’s welfare and that he was not presenting as having any acute mental ill health conditions. Therefore, based on the information known to them at the time, we considered the council’s actions to be reasonable. Therefore, we did not uphold Mr C’s complaints.

Summary

C had a child (A). C was subject to a Pre-Birth Risk Assessment. The council put in place a rehabilitation plan to support C in caring for A. It was accepted that this plan did not clearly communicate the council’s concerns to C. The council decided to restart the rehabilitation process (though a shorter one) and considered providing feedback in a different way. The second rehabilitation plan was unsuccessful and A was placed in foster care full-time.

C complained that the council did not provide them with sufficient support to enable A to live with them.

We took independent advice from a social worker. We found that the council provided C with reasonable support to enable them to care for A, and noted that C did not always engage with this support. For this reason, we did not uphold the complaint.

Summary

C communicated with the council regarding their dissatisfaction about the council’s actions in locating a communal bin store and removing fencing and a gate at a property containing flats that both they and the council owned. The council did not formally handle this communication as a complaint for several years. Following consideration of the matter through their complaint procedure, the council confirmed that C wished them to reinstate the fence and gate and relocate the bin store. However, C did not consider that the council had carried out this action within a reasonable timescale. C was also dissatisfied with the response the council gave to further complaints they submitted several months later regarding the suggested works programme the council had provided to them and the replacement of a different gate at the property.

We found that there were unreasonable delays in the council responding to C’s contacts, that the council unreasonably failed to deal with C’s complaints under their complaints handling procedure for several years, that the council unreasonably failed to advise C of revised timescales for responding to their complaints when they were considered under the complaints handling procedure, and that the council unreasonably failed to provide C with meaningful explanations of how they reached their decisions on C’s complaint or clarify their position regarding the title deeds to C’s property.

We also found that the council unreasonably failed to relocate the bin store or reinstate the fence and gate within a reasonable timescale or fulfil C’s request to be consulted and agree plans before they were undertaken. We also noted that the council unreasonably described the information provided to C as “details” of the proposed work, did not reasonably investigate C’s complaint about the replacement of a communal gate, unreasonably failed to update C regarding delays to their response to the second complaint some months later, and did not administer an extension to the timescale for responding to the complaint in line with their complaints handling procedure. We upheld all of C's complaints.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the specific failings identified. The apology should make clear mention of each of the failings identified and meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Arrange for the relocation and reinstatement works to be completed.
• Provide C with detailed plans for the relocation and reinstatement works agreed to. These plans should show the current and planned locations, designs and dimensions of the fence, gate and bin store and their sites.

In relation to complaints handling, we recommended:

• Ensure contacts from the public are responded to within a reasonable timescale, that complaints are quickly identified and dealt with under the Model Complaints Handling Procedure (MCHP), that complaints investigations are thorough, that the MCHP is followed when timescales need to be revised and that complaint responses are accurate and provide meaningful explanations of how decisions were 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 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.

Summary

C’s property was flooded from an attic above where both they and the council had water storage tanks. The complaint concerned the council’s response to C’s concerns that they had been responsible for the damage to their home and about how the council responded to their associated compensation claim and complaint.

We found that, after C’s insurance claim was made, it took the council seven weeks to provide information to allow the insurers to consider the matter. It took a further six weeks to provide information after being approached by the insurers for comments on their reasons for repudiating the claim. Furthermore, the council failed to comment on an apparent contradiction in those reasons. Therefore, we upheld this aspect of C's complaint.

However, we found no grounds to show that the council behaved unreasonably to C during and after the flood was reported. In addition, although C’s councillor raised the complaint on their behalf, there were no specific details or date logged in relation to this. Accordingly, it was not possible for us to determine whether or not the complaint had been appropriately addressed in a timely manner. We did not uphold these aspects of C's complaint.

Recommendations

What we asked the organisation to do in this case:

• The council should now comment appropriately on the information provided by the insurers and they should apologise to C for their delay in dealing with this matter.

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 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.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to signpost them to their high hedge application process or sufficiently respond to the points C raised with them. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Provide C with details of how they can submit an application, should they wish to do so, along with reassurances that this will be considered on its merits, once those have been reasonably investigated and established.

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

• Access to the high hedge application process should be provided, where requested, and sufficient explanations should be provided when the council are explaining their consideration.

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.