Local Government

Summary

C raised a number of concerns about the council’s handling of a planning application. C considered that the planning service failed to provide an appropriate opportunity for the community to comment on changes made by the applicant after the application was submitted. C also considered that the council failed to ensure that the application referred to the correct class use.

We took independent advice from a planning adviser. We found hat the council had acted reasonably at all stages with regard to the processing of the planning application in the lead up to determination of the planning application in question. We did not uphold this aspect of C’s complaint.

C was also concerned that the council’s response to their complaint contained inaccurate information. Having considered the relevant documentation, we did not identify an inaccuracy in the council’s response. Accordingly, we did not uphold this aspect of C’s complaint.

Summary

C became a kinship carer to their family member (A) and complained that the council had failed to provide appropriate and accurate information about kinship care payments and had dissuaded C from applying. C also complained that information about the council’s policy on kinship care assistance was difficult to find and the policy provided to them in 2019 was out of date and did not include reference to changes in legislation that took place in 2009 and 2015.

The council said that C was provided with information and advice about kinship care payments, however C had decided not to pursue an application as they did not want to share their financial information.

We found evidence that C did not pursue an application for kinship care payments as they did not wish to share their financial information. We did not find any evidence that C was dissuaded from making an application. We did not uphold this complaint. However, our investigation found that the council’s policy on kinship care assistance was significantly out of date and was not updated between 2005 and 2020. Therefore, we upheld this aspect of C's complaint.

Recommendations

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

• The council should consider how they will conduct an audit of all kinship carers known them to them (informal/formal kinship carers and those or may or may not have a Section 11 Residency Order) and ensure they were given accurate information and are aware of their rights. If it is found they have not been given the information or assistance they are entitled to, this should be remedied.

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 planning authority, failed to provide reasonable justification to discharge two conditions relating to an approved planning application of a development of a historic site. C considered that the council discharged the conditions without the applicant providing solid evidence of compliance.

The first condition related to the pre-commencement condition for scheduled monument consent (SMC) (part one) and that the extension could not be used until the restoration of the site had been completed (part two). The council advised, initially, the discharge of part one of the condition was based on the SMC for the first stage of site works. Later the council justified the discharge of part one of the condition as it duplicated the effect of another organisation and therefore should not have been imposed as a pre-commencement condition.

We took independent planning advice. We found that while the council’s communication in relation to the discharge of the first condition could have been clearer and more consistent, their ultimate rationale was reasonable. Therefore we did not uphold this this aspect of the complaint.

The second pre-commencement condition related to the requirement for a full survey of the historic site and grounds to establish whether they were being used by roosting or hibernating bats and any further actions to minimise the disturbance of same if found. We found that the council had already acknowledged that the survey works should have been requested prior to the determination of the planning application rather than as a pre-commencement condition. As the condition had been made, the council considered the information provided by the applicant, including a bat survey report. On receipt of the report from that survey the council contacted Scottish Natural Heritage (SNH) to gain their views. SNH confirmed their acceptance of the report. On the basis of the response from SNH, the condition was discharged. We found that the council provided reasonable justification for the discharge of the condition. Therefore, we did not uphold this aspect of the complaint.

Summary

C complained about the council's handling of a planning application submitted by their neighbour. The planning application was for a number of alterations to C's neighbour's property. C objected to the application, as they had a number of concerns about the proposed alterations, including what they considered to be inaccurate plans and information submitted by the neighbour. Despite C's objections, the council approved the planning application.

C complained to the council about their handling and assessment of the application. They stated that there were inaccuracies within the Report of Handling and that the council had not addressed the points raised in C's objection appropriately. The council acknowledged that there were a number of failings in how they handled and assessed the planning application. However, they concluded that their decision on the application would have been the same had these failings not taken place.

In C's complaint to us, they explained that they were not satisfied with the council's response and that the council should have taken further action in response to the aspects of the complaint they upheld. C also had further concerns about the council's handling of the application and the assessment that led to their decision.

We took independent advice from a planning adviser. We found that the council's stage 2 complaint response provided a reasonable explanation for why the decision to approve the planning application was appropriate. Furthermore, the council's decision-making was in line with relevant guidance and legislation. Although C disagreed with the council's decision on the planning application, we were satisfied that this was a decision the council were entitled to reach. However, we did identify one failing in respect of the application validation process that was not addressed in the council's response. In light of this, and the failings already identified by the council, we upheld this complaint.

C also complained that the council had failed to take reasonable and appropriate action in relation to the drainage provisions that were part of the planning application. C said that there was a lack of detail in the planning application in relation to drainage and that the council had been unclear about whether this was a matter for the planning department or building standards. The council stated that the information contained within the planning application was sufficient to allow an appropriate assessment of the application. They also clarified that a development of this nature would not require a building warrant.

We found that the information provided in the council's complaint response was accurate. As such, we were satisfied that the nature of this development meant that more detailed information, plans or drawings were not necessary. We also accepted that building standards would not have a role in this matter should the development lead to unexpected water run-off. While acknowledging that the council's Report of Handling contained inaccurate information, we concluded that the council acted appropriately and did not fail to carry out any actions they were obliged to. Therefore, we did not uphold this complaint.

Recommendations

What we asked the organisation to do in this case:

• Given the failings identified in both the council's stage 2 investigation and our investigation, consider whether it is expedient to revoke the planning permission granted for the application and require a new application to be submitted.

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

• Reflect on how this planning application was validated, handled and assessed. Consider whether there are any learning and improvement points that can be put in place.

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, an advocacy worker, complained to us on behalf of their client (A). A and their partner agreed to care for their partner's two younger siblings, after their parent became seriously unwell. The children were on the child protection register (a list of children who are considered to be at risk of significant harm and who are subject to a child protection plan) and they had additional support needs. During our investigation, we took independent advice from a social worker.

C complained that the council delayed in contacting A, after the children went to live with them. We found there was an unreasonable delay in the council contacting A to provide them with advice and to discuss plans for the children's immediate and longer term care.

C complained that the council failed to visit the children weekly. We found that the council should have ensured the children received weekly visits from social workers while they were on the child protection register and that did not happen. We found there was a failure to properly seek the children's views and include them in the child protection case conferences and associated paperwork. We noted that the council considered that the children were no longer at risk when they went to live with A. We found that the council failed to appropriately gather information to assess the risk to the children before they decided to remove them from the child protection register. We also found that, if the council considered that the children were no longer at risk, the council should have held a review child protection case conference within the timescales set out in the national child protection guidance.

C also complained that the council failed to help support the children with their special education needs. We found that the council's social worker, as the lead professional, should have taken steps to co-ordinate the education aspects of the children's care and ensure this aspect of the child's plan was progressing.

Finally, C complained that the council failed to carry out a kinship care assessment and A was not given financial support for the children. We noted that the council had made payments to A that were the equivalent sum to a kinship care payment. However, we found that the council's timescales for completing the kinship care assessment was considerably outwith the timescales in the statutory guidance. We also found that the council's record-keeping was unreasonable, as the information was blended and it was not in chronological order.

We upheld all aspects of C's complaint and while we recognised that the council had acknowledged some of the failings and reflected on this, we made a number of recommendations to address the failings we found. We also made recommendations in relation to the council's complaint handling.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for the failings identified. 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:

• Child protection should be delivered within the context of the Getting It Right For Every Child (GIRFEC) framework so the views of the children should be listened to, considered and recorded.
• If the council concluded the risk to the children had been removed, they should have held a review child protection case conference within 21 days, with the involvement of local social work services.
• In child protection matters, it is important that social work records are clear, transparent and easily understood.
• In making decisions regarding the care and wellbeing of children, appropriate steps should be taken to gather information that is relevant to the assessment of risk.
• Kinship care assessments should be completed within an appropriate timescale, in line with relevant guidance and legislation.
• When children are on the child protection register, it is the lead professional's responsibility to co-ordinate action to meet their education needs and ensure the child's plan is progressing.
• When children are on the child protection register, their carers should be visited promptly in order to safeguard the children's wellbeing, health and development.
• When children are on the child protection register, they should receive weekly visits from social workers.

In relation to complaints handling, we recommended:

• Complaint responses should include an apology where things have gone wrong. 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 ensure that accurate responses are issued to our enquiries, which are based on the records as well as the evidence gathered during their complaint investigation.

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 to us about the actions of the council in relation to a development near their home. They said that the council unreasonably accepted unreliable information from the applicant and failed to ensure that adequate investigations were carried out in relation to drainage from the site and ground water level. We took independent advice from a planning adviser. We found that the council acted reasonably in accepting advice on the matter from the Scottish Environment Protection Agency. They were entitled to reach the decision they did, given that advice. We did not uphold this complaint.

C also complained that the council unreasonably failed to enforce a planning condition in relation to the site entrance. We found that the planning officer had consulted roads officers on the details submitted to discharge the roads conditions. The council’s position in respect of there being no breach of consent was one that they were entitled to take. We did not uphold this complaint.

In addition, C complained that the council unreasonably failed to ensure that a remedial strategy for field drainage was submitted in line with a planning condition. We found that it was a matter for the council to decide what action it is appropriate to take in respect of enforcement, and whether or not information submitted is sufficient to discharge conditions. In this case, the decisions taken by the council were decisions they were entitled to take and we did not uphold the complaint.

Finally, C complained that the council unreasonably failed to ensure that the burial site visibility splay complied with their roads standards. We found that it was reasonable for the planning officer to have accepted advice from roads officers that the visibility splay had been inspected on site and determined to be acceptable, and to have discharged the condition accordingly. The council undertook the correct processes in determining the planning application and the discharge of the conditions, and therefore we did not uphold this complaint.

That said, we considered that the council should have published all of the information submitted to discharge the conditions and their responses at the appropriate time, so that interested parties were able to follow and understand the progress of the application. We provided feedback to the council in relation to this.

Summary

C was on a Compulsory Supervision Order (CSO) and in the care of their grandparents. When C became a care leaver, C complained to the council that they failed to provide the appropriate Throughcare and Aftercare. C said that the council wrongly advised that C was not entitled to any financial support and that they failed to implement a support system.

The council said that C did not always respond to social work contact, and following C’s complaint, they identified they had misunderstood the changes to their responsibilities with regards to financial assistance for care leavers.

We took independent social work advice. We found that the council incorrectly identified C’s status as not being an eligible young person in terms of Section 29 of the Children (Scotland) Act 1995 from the outset. This resulted in C not being provided with access to certain services. We also found there was a delay in putting in place a Pathway Plan. While the council did take steps to backdate a financial payment to C, we considered that they should have backdated the payment further to the point when C first contacted the service to ask for assistance. We upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to correctly assess the care leaver’s legal status and for failing to provide the appropriate Throughcare and Aftercare. 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 make the additional payment of Basic Living Allowance they proposed.

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

• Staff should be familiar with the relevant guidance and regulations and care leavers should receive clear information about the supports that are available to them.

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 lack of action in relation to reports of anti-social behaviour about a neighbour made by C and their family over a number of years.

The council had accepted in their complaint response to C that there had historically been a failure to appropriately record and take action on reports of anti-social behaviour, and we considered this failing to be unreasonable. We therefore upheld the complaint. We noted that following the case being taken over by a new officer and a new manager, the council had acted appropriately, including meeting with C and their family and taking action on the reports of anti-social behaviour. We considered that much of this, potentially, could have been done at an earlier point, however, we acknowledged that things now appeared to be being handled in line with relevant guidance and took this into account when making recommendations.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C and their family for failing to appropriately record and take action on reports of anti-social behaviour and the impact this had on them as a family. The apology should include an acknowledgement that, had appropriate recording taken place, this may have resulted in earlier action being taken. 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:

• Reports of anti-social behaviour should be recorded and acted on in line with the antisocial behaviour policy.

In relation to complaints handling, we recommended:

• Complaint responses should be transparent regarding the failings that have been identified in complaint investigations.

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 way the council handled their request for their child (A) to attend a specific secondary school. C considered that their request should have received priority over others as A had a sibling in the school. In order to determine catchment places for the school, the council conducted a ballot. A was not allocated a place during the ballot and was unable to attend the school. C remained dissatisfied with the council's handling of their complaint and brought the complaint to us.

We found that the council had followed their policy to allocate catchment places. We were satisfied that, throughout the process, the council kept C appropriately informed about what was happening. At the end of the process, the council also informed C of their right to make a placing request. We did not find that the council had treated C and A less favourably than other families in the same position. We did not uphold C's complaint.

During our consideration of complaint handling, we found that the council initially failed to correctly log C's correspondence as a complaint and handle it in line with their procedure. This resulted in the complaints process becoming unnecessarily prolonged by over two months. Therefore we made a recommendation under section 16G of the SPSO Act 2002, which requires the Ombudsman to monitor and promote best practice in relation to complaints handling.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to handle their complaint appropriately. 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

C complained to us about the council, who they had rented a garage from for years. C was concerned that the council had not informed them of the presence of asbestos in the garage, which C only became aware of after repair works were carried out to the roof.

We found that, although the council did not appear to have a legal duty to inform C, they had clear policies on asbestos which committed to '… doing all that is reasonably practicable to prevent exposure of its employees and others to airborne asbestos particulates.' Given this wide-ranging commitment, we considered that the council should have considered notifying C on sign-up, but there was no clear evidence of this.

We also found that there was insufficient record of the initial inspection carried out after C reported the repair required to the roof. This made it difficult to assess whether asbestos containing material had been damaged (which could potentially pose a risk). In the absence of clear evidence that no such material was disturbed, we consider that the council should have notified C of the presence of asbestos when the repair was reported. For these reasons, we upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to notify them of the presence of asbestos in their garage. 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:

• All inspections involving asbestos containing material should be adequately recorded and tenants should be warned if material is potentially disturbed or damaged.
• The council should consider notifying garage tenants of the existence of asbestos on sign-up.

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.