Local Government

Summary

Mr C complained that the council failed to maintain an area of the road near his property. He also complained that a nearby sewer was deteriorating, meaning that it was potentially dangerous for people using the area. Mr C brought his complaint to us as he said the council had not addressed either issue, although he had been in correspondence with them for some time.

We reviewed the correspondence and found that the council had explained to Mr C that it was unclear whether they had adopted that part of the road or whether it remained a nearby housing association's responsibility. They said that their solicitors were working to clarify this and provided details of another nearby area where they were carrying out maintenance work, to try to reassure Mr C that they maintained areas for which they were responsible. They also explained that they would write to the housing association and Scottish Water about the sewer, although they explained that it was not the council's responsibility to maintain it.

We reviewed the correspondence and found no evidence to indicate any underlying administrative failure by the council. We did, however, consider that there had been shortcomings in the correspondence, which had caused confusion as to how matters were being progressed and so, while we did not uphold Mr C's complaints, we made a recommendation.

Recommendations

We recommended that the council:

• contact Scottish Water again to request an investigation into the collapsed sewer near Mr C's home.

Summary

Mr C complained that the council failed to properly investigate his complaint about the welfare power of attorney (person named in a legal document which appoints them to act or make certain decisions on behalf of the person who has granted permission for this) who was acting for a member of his family.

We took independent advice on this complaint from a social work adviser. The code of practice for local authorities exercising functions under the Adults with Incapacity Act (Scotland) 2000 sets out how a local authority should investigate a complaint about a welfare power of attorney. We found that the council's investigation was not carried out in accordance with the guidance in that code. There was no evidence that they had obtained relevant information and the views of other interested parties before completing their investigation, or that they had asked to see the welfare power of attorney's records.

The council had also received advice that there was no requirement for a welfare power of attorney to abide by the code of practice for continuing and welfare attorneys, and in view of this, they had not assessed the person's actions against this code. We did not consider that it was reasonable for them to disregard the code on this basis, as it sets out good practice, interpretation of the relevant legislation and a standard against which to assess the actions and suitability of an attorney. There was also no evidence that they then used anything else against which to assess the actions of the person Mr C had complained about, and we upheld his complaint about their investigation. We also found that the council delayed in responding to his complaints about their investigation and upheld his complaint about this too.

Recommendations

We recommended that the council:

• issue a written apology to Mr C for the failure to investigate his complaint about the welfare power of attorney appropriately;
• take steps to ensure that the issues he raised have been investigated appropriately; and
• make staff involved in investigating complaints against welfare power of attorneys aware of our findings on the complaint.

Summary

Mr C said that during gale force winds the boundary wall between a council building and his home collapsed. The debris fell into his garden, damaging his property, and he made a compensation claim to the council. The company who handled this on the council's behalf turned the claim down, and Mr C complained to us that in doing so they followed an unreasonable process. He said that they did not consider all relevant evidence, failed to clearly and consistently explain the reasons for their decision and delayed unreasonably in processing his claim.

Although we found that the company's record-keeping was lacking at some points, we found no evidence that they failed to consider all the evidence required to process the claim. Neither did we find the timescales in processing his claim unreasonable, although they should have written with an update during the early stages. They responded to Mr C's remaining enquiries quite promptly.

The documentation confirmed, however, that the company changed the rationale behind their decision during the course of the correspondence. This would not have been unreasonable if new evidence had come to light. However, we could see no clear reason for the differing explanations. The company made no further enquiries and did not obtain new evidence after issuing their second decision letter, but continued with the change in their reasoning. They also failed to respond to one of Mr C's main arguments in support of his claim, although they had information about this from the council. There was no clear record of the company's actions in response to each of Mr C's communications, or of how this affected their decision-making.

We were also critical because the council did not deal with this under their complaints procedure. The determination of liability would be a matter for the courts. However, a complaint about the administrative handling of a claim falls within the remit of the council's complaints procedure and should have been dealt with through that. Overall, we upheld Mr C's complaint and made recommendations.

Recommendations

We recommended that the council:

• feed back our decision to the staff involved to ensure that such failings do not occur in future;
• ensure that the company record all key actions/communications on their handling of future claims; and
• provide Mr C with a written apology for the failings identified.

Summary

Mr C's elderly mother (Mrs A) suffers from vascular dementia (a common form of dementia, caused by problems in the supply of blood to the brain). Mrs A was in receipt of a meals service provided to her at home. The council had contracted with a company (the contractor) for the meals service, and the contractor had then sub-contracted this to a meals service provider (the provider). Mr C believed that his mother might have made unreceipted cash payments to the provider's delivery driver. Mr C complained that the council did not assess the risk of doorstep cash payments for users of the meals service.

Mr C said that both the council and the provider had refused to allow him to pay by direct debit, while allowing users of the service to pay by cash on the doorstep. He complained that the council had failed to reasonably assess the risks of doorstep payments, particularly in the case of elderly and vulnerable service users. He pointed out that without receipts it was not possible to verify what payments were made. The council said that all appropriate capability and risk assessments, including security checks, were carried out and that their actions in respect of Mrs A had complied with their equality duties. They said they had not refused to allow direct debit payments - rather the provider did not have the facility for this. Following their investigation of Mr C's complaint, they said that the delivery driver now gave the recipient of the service a written receipt for cash and cheque payments. In Mrs A's case, the council also agreed to meet the full cost of the meals service with the provider and then recharge Mrs A for this.

We were satisfied that it was a matter for the council, in consultation with the contractor and the provider, to create policies and procedures for the provision and operation of the service, including payment methods. However, we upheld Mr C's complaint as, although the council had carried out various assessments in respect of users of the service, we were not persuaded that these addressed the risk issues of cash payments, particularly for vulnerable service users such as Mrs A. We also considered that the system that was in place did not have sufficient safeguards to properly evidence what, if any, payment was made when the meal was delivered, and we made a recommendation about this. We saw no evidence that the council had previously refused to allow payment by direct debit, and accepted that the system in place at the time did not allow for this.

Recommendations

We recommended that the council:

• issue Mr C with an apology for the failings identified in this complaint; and
• discuss with the contractor and the provider obtaining a duplicate receipt for all cash and cheque payments.

Summary

Mr C, who is an MSP, complained on behalf of his constituent (Mrs A) that the council were not doing enough to prevent water seeping into her garden and pooling on her path where it met the public pavement. He explained that this caused problems in winter when the water froze, and increased Mrs A's risk of falling. He said that the water was coming from council land, so they should put in additional drains to minimise the seepage.

In responding to the complaint, the council inspected the drains from the property and found no problems. They also inspected the council-owned area of grass beside Mrs A's home and installed a soakaway (a gravel-filled channel or pit that helps manage surface water), although they did not think that very much water was coming into her property from there. The council said they thought that the problem she was experiencing was due to groundwater (water found underground in the cracks and spaces in soil, sand and rock), and pointed out that property owners are responsible for protecting their own property from flooding and for draining their land. They provided advice on what Mrs A could do to improve drainage, and also resurfaced the pavement to reduce the risk of pooling at the entrance to the path. They said, however, that the remaining pooling related to paving slabs on the path itself, and was Mrs A's responsibility.

We checked the council's statutory responsibilities under roads and flooding legislation. Our investigation found that this makes it clear that the home owner is responsible for water collecting in their own property. Having considered the council's responsibilities, and the actions they had already taken to try and improve the situation for Mrs A, we found no evidence of administrative failure in how they handled this.

Summary

Mr C complained that the council had not taken appropriate action to address a number of concerns he had about a neighbouring development. He said that the boundary fence was unsafe because a large number of nails protruded from it into his property and that there were excavations beside the fence that the developer had not completely filled in. He also complained that the developer failed to properly connect drains to the drainage system of the neighbouring private road.

The council had explained to Mr C that their planning department were satisfied that the fence complied with the approved plans and that the finish of the fence was a private legal matter. They also said that the drainage problem was a matter between residents and the developer, as the road was private.

We fully considered the information from the council and Mr C, and agreed that the issues Mr C raised were essentially private legal matters. We were satisfied that the council's planning and building control team had taken appropriate steps to try and address his concerns, and as we found no evidence of administrative failure in the way the council dealt with this, we did not uphold the complaint.

Summary

Mrs C raised a number of issues about the council's handling of a planning application to build a temporary building in the school next door. She said that they had not provided accurate information about the application, and that although she had been told that the structure would not be higher than her boundary wall, it turned out to be higher than it when built. She also said that the structure affected her privacy and the amount of daylight she received, and that the council had not addressed her concerns about what was being built, or about damage to the boundary wall and the impact on her property. Finally Mrs C said that the council had failed to address her concern that the local councillor was given conflicting information about an offer of compensation.

After taking advice from one of our planning advisers, we did not uphold Mrs C's complaints. Our investigation found no evidence that the council failed to follow the appropriate process to let neighbours know about the application, and there was no clear evidence about what they told Mrs C about the height of the structure relative to the boundary wall. We were also satisfied that the council had addressed her concerns about what was being built on site, although there was some uncertainty about whether the building had been built in accordance with the plans as far as the relative height to the wall was concerned. We were also satisfied that they had responded to Mrs C's concerns about the impact of the structure on her property, and about the boundary wall. The council had explained that the wall had been inspected. We found no evidence of conflicting information in relation to compensation.

Recommendations

We recommended that the council:

• draw this case to the attention of the officers involved, for them to consider whether any lessons can be learnt from the handling of this case.

Summary

Mr C and Mr D own a listed country house hotel with substantial grounds. They had obtained conditional planning consent to build holiday cottages in the grounds. One condition said that the cottages should only be used for seasonal lets, but contained an ambiguous sentence. Mr C and Mr D interpreted this as implying that they could write and ask the planning authority to set aside that condition. When they then decided to sell one of the cottages, they engaged in an extensive pre-application discussion with the council. The council told them that they would require a planning application, which was submitted. Council officers prepared a report indicating that they would be prepared to recommend approval of the proposal, subject to completion of a section 75 agreement (a legal agreement that covers financial contributions to meet the services and infrastructure needs of the local community associated with the new development). A draft agreement was provided and agreed in principle by Mr C and Mr D. However, the council did not issue their decision within the required time period, and Mr C and Mr D submitted a notice of review to the local review body. The review body met, but while awaiting their decision Mr C and Mr D appealed to Scottish Ministers on grounds of non-determination of the original application. The local review board issued a notice of intention some days later, but this was negated by the appeal.

Mr C and Mr D complained to us about the council's handling of this, including how they described the application. They also complained that the council failed to assess the application against relevant planning policies, that they unreasonably required the section 75 agreement without considering other options and that the local review body did not follow due process. Mr C and Mr D also said that the council failed to provide a reasonable response to their complaints. In the light of independent advice from one of our planning advisers, we did not uphold the first four complaints as we did not find evidence of maladministration or service failure, although we did make one recommendation. In terms of the complaints handling, we found that although the council's response to their complaint was concise, it was not unreasonable. Our decision took into account that the issues had by that time been rehearsed with the planning officer, at the local review body and in the appeal to Scottish Ministers against non-determination by the local review body.

Recommendations

We recommended that the council:

• review their procedures for recording Section 75 agreements to ensure that the wording reflects Scottish Government advice.

Summary

Mr C complained that the council had unreasonably failed to maintain and repair a section of road near his home in line with their obligations. He also said that when he reported pot holes to the council, they failed to carry out repairs within the required timescales.

The council said that they met their responsibilities in terms of roads inspection and maintenance and that when Mr C reported problems to them they took action to repair them within an appropriate timescale.

We obtained the council's records which showed that they had inspected the road, as required by their code of practice, and where defects were identified, they had carried out repairs. They also provided records showing that they had responded to Mr C's reports of pot holes and had carried out necessary repairs the following day. As the council had met their responsibilities in terms of the inspection and repairs, we did not uphold Mr C's complaint.

Summary

The council put up a fence dividing the area that Mr C and his neighbours used as a driveway, causing them difficulty in accessing the area with vehicles. Mr C complained to the council about this and then, when he was dissatisfied with their responses, he complained to us.

We found inconsistencies in the council's responses, and that they did not respond at all to one of his letters, and so we upheld his complaint.

Recommendations

We recommended that the council:

• apologise to Mr C for their failure to reasonably respond to his complaints; and
• reconsider their response to Mr C's complaints and provide him with a clear and consistent response.