Local Government

Summary

Mr C made nine complaints about a wind turbine. Because of the distance between the turbine and his property, he had not received neighbour notification about the development, which was determined by council officers under delegated powers. Mr C said that the council ignored current guidance in assessing the noise impact; the officers’ report of handling (a document about the application) unreasonably failed to make a clear distinction about whether the separation distance was from the wind turbine to his property or to his house and contained a number of other defects. He also said that the assessment and report of handling were flawed in failing to take into account the impact of disruption to him from ancillary works, and unreasonably failed to address how the wind turbine would connect to the grid. He further complained that the council had not imposed an upper limit in the grant of planning permission and had unreasonably failed to handle his complaint in compliance with their published service standards.

After obtaining detailed independent advice on this complaint from one of our planning advisers, we did not uphold Mr C's complaints. The adviser said that the council had taken into account current advice on noise impact; that the report of handling was not defective in respect of the matters raised by Mr C and that provision for the ancillary works had been made in the planning consent conditions. We founds that the other matters raised constituted permitted development (development that does not need planning permission). Finally we found that the council had handled the complaint reasonably and without delay.

Summary

Mr C corresponded with and complained to the council about their maintenance of a park. He was dissatisfied at the end of the complaints procedure and raised his complaints with us, including that they had not responded appropriately to his complaints.

We found that there was evidence that the council had reasonably maintained the park during the period concerned. However, we also found that the council had not responded reasonably to Mr C's complaints because they did not provide full responses to the issues he raised, and on one occasion provided inaccurate information.

Recommendations

We recommended that the council:

• apologise to Mr C for the complaints handling issues identified; and
• ensure all staff are reminded of the need to provide full responses to complaints.

Summary

Mr C lives with his partner (Ms B), who has a disability. He complained about the council’s handling of the couple's request for a mutual exchange of council properties. He said the council unreasonably refused permission for this on the basis that the property that Mr C and Ms B were hoping to move into could not be fully adapted to Ms B’s potential future requirements. Mr C said the council told him that if he wished to go against their decision and proceed with the exchange he would have to sign a disclaimer saying that he accepted that the council would not be responsible for any future adaptations, and that he would have to fund these himself. Mr C said the council later changed their policy and agreed the exchange, but he also complained that they then failed to carry out a property condition check before the exchange took place.

Our investigation found that the council’s written policy on mutual exchanges at the time did not say that properties had to be fully adaptable. When we asked them for information, they explained they had based their decision on an unwritten policy about this, which they said meant that the mutual exchange could not be granted. We upheld Mr C's complaint, as we found that it was not appropriate for the council to rely on an unapproved, unwritten policy when determining whether a mutual exchange could be granted. As there was nothing in their procedure on mutual exchanges to indicate that the exchange should not be approved, we considered that they unreasonably refused permission. It was also clear that the council’s policy did not require tenants to sign disclaimers in situations such as this. Again, it appeared that the council were operating an unwritten policy on completion of disclaimers in respect of future adaptations. We did not uphold the complaint about the property check, as the council provided us with evidence that they inspected the property before the mutual exchange.

We noted that the council had apologised for some of their failings and had taken some remedial action, but we made recommendations as we considered that further remedial action was required.

Recommendations

We recommended that the council:

• provide Mr C and Ms B with a written apology for unreasonably refusing permission for their mutual exchange;
• feed back to the staff involved our decision about their refusal of the mutual exchange;
• revise their mutual exchange policy to include information on the adaptability of properties; and
• provide the Ombudsman with documentary evidence of the feedback previously given to staff about this complaint and the refresher training they received.

Summary

After his circumstances changed, Mr C felt that he could no longer remain in his privately rented accommodation. He was finding his situation very stressful due to mental health problems. He approached the council for assistance but he complained that the way they processed his housing application was unreasonable. He also said that they failed to follow proper processes, delayed in allowing him access to their web-based portal service and wrongly said that he had failed to obtain permission to tape a meeting. He said that the council's handling of his complaint to them about this was inadequate.

When investigating the complaint, we considered the complaints correspondence, details of Mr C's housing application, copies of the council's internal records and the council's housing allocations policy. We also contacted Mr C's community psychiatric nurse. Our investigation found that the council followed their procedures when dealing with Mr C's application and that taking his health problems into account they had, with his agreement, made arrangements for him to stay longer in his privately rented accommodation. Although Mr C was clear that he had requested the council's permission to tape a meeting he had with their officer, we found no written evidence of this. We did not uphold either of these complaints, but we did uphold the other three. There was clear evidence that the council's communication with Mr C was poor. The council acknowledged this and had apologised. There was also evidence that there was delay in allowing Mr C access to their portal helpline service, and in responding to his complaint.

Recommendations

We recommended that the council:

• apologise for their failure in this matter; and
• emphasise to helpline staff the importance of a timely reply.

Summary

Ms C, who is a solicitor, complained on behalf of her clients (Mr and Mrs A) that the council did not reasonably investigate reports of antisocial behaviour by a neighbour, who is a council tenant, and about whom there had been many other complaints. Ms C wrote to the council several times, then contact stopped for a year, by the end of which Mr and Mrs A had moved. When Ms C first contacted us over a year after that, we told her that she would first need to complain through the council’s complaints procedures. She did so, and then complained again to us. We suspended our consideration of the complaint to allow further information to be supplied, explaining to Ms C that we could normally only look at a complaint about something that had happened, or that she had found out about, within the last twelve months. When we re-opened her complaint, we found we were effectively restricted to looking into matters for about a seven month period, until before Mr and Mrs A moved out. We considered the council’s actions during that period, and found that they had issued a final warning to the tenant. Our investigation did not find this unreasonable.

Summary

Mr C purchased a property, which proved to have significant structural problems in an extension completed by the previous owner. Mr C made a number of complaints about the completion certificate process, and said that the council had failed to ensure that the local authority building surveyor who verified the certificate had carried out his role properly. He was also unhappy with the council's complaints handling.

Mr C said that the building warrant for the property had expired, and no extension had been sought before the certificate of completion was granted. He believed that this meant that the building regulations in force at the time of the inspection should have applied to the property. He said that this would have required a different type of electrical certificate to that presented to the surveyor, and would have resulted in significant problems with the electrics being identified. Mr C thought that the council would not then have approved the completion certificate, and he would not have purchased the property.

Our investigation found that the local authority did not have responsibility to carry out anything more than a non-disruptive survey, and that responsibility for ensuring that work on the property matched that described on the building warrant lay with the individual submitting the completion certificate. We also found that the grounds for refusing an extension to a building warrant only apply where little or no construction has taken place. In this case the building was completed within the timeframe of the warrant and the completion certificate applied for, so there would have been no grounds for refusal.

We also found that the extent of a non-disruptive survey was a matter of professional judgement for the building surveyor. Although Mr C disputed the professionalism of his work, this was not a matter that we could consider. We also found that the surveyor was only required to carry out a 'reasonable enquiry' with regard to specialist matters such as electrical certification.

On the complaints handling, although we found that the council's first response to Mr C lacked empathy, given the difficult and distressing situation in which he found himself, their overall handling of his complaint was reasonable.

Summary

A firm of solicitors complained on behalf of their clients (Mr and Mrs A) that the council did not act reasonably and correctly when they withdrew school transport. The council had introduced a revised home to school travel policy, in line with national guidelines, which meant that Mr and Mrs A's children no longer qualified for free transport to school. They also said that proper procedures had not been followed when the council dealt with the case and the appeal. Mr and Mrs A were told they could not complain as the decision of the sub-committee was final.

Our investigation found that the appeal sub-committee that took the decision did not have full, accurate and relevant information about the route in question. Additionally, as there was no statutory right of appeal, Mr and Mrs A should have been signposted to us, as they were entitled to an independent review of their concerns. We upheld both complaints and made recommendations.

Recommendations

We recommended that the council:

• review their decision about the provision of transport in this case;
• review their policy wording to reflect advice on signposting for internal appeals procedures; and
• apologise for not signposting to SPSO at the end of the appeal process in this case.

Following a review, this report was changed on 25 February 2015. The full revised version of the report is available below.

Case:              201303605: Comhairle nan Eilean Siar

Sector:           local government

Subject:         school transport

Outcome:       some upheld, recommendations

Summary

A firm of solicitors complained on behalf of their clients (Mr and Mrs A) that the council did not act reasonably and correctly when they withdrew school transport. The council had introduced a revised home to school travel policy, in line with national guidelines, which meant that Mr and Mrs A's children no longer qualified for free transport to school. They also said that proper procedures had not been followed when the council dealt with the case and the appeal. Mr and Mrs A were told they could not complain as the decision of the sub-committee was final.

Our investigation found that the appeal sub-committee applied the revised policy correctly in considering Mr and Mrs A's appeal. We did not uphold the first complaint although we made two recommendations about how the clarity of the process could be improved. However, as there was no statutory right of appeal, Mr and Mrs A should have been signposted to us, as they were entitled to an independent review of their concerns and we upheld the complaint that the council failed to follow proper procedures in dealing with the case and subsequent appeal and made recommendations.

Recommendations

We recommended that the council:

• review their policy wording to reflect advice on signposting for internal appeals procedures;
• apologise for not signposting to SPSO at the end of the appeal process in this case;
• amend the appeal application form to include a section for parents to complete detailing why they are not able to act as an accompanying adult/meet the parental responsibilities outlined at Paragraph 6.1 of the home to school transport policy; and
• give consideration to giving clearer guidance around the statement in the school transport guide for parents that pupils should be accompanied 'until they can confidently and safely walk the route'.

Summary

Mr C had a complaint about a building company who were members of the council's 'buy with confidence' scheme. Mr C contacted council officers about his complaint and they took action in relation to it. He complained to the council that the company had been allowed to join the scheme contrary to its conditions, that the council unreasonably refused to implement conditions of the scheme in regard to his complaint and that officers had not responded reasonably to his correspondence. The council's final position was that some of his correspondence could have been responded to more quickly but that they had otherwise acted reasonably. Mr C was dissatisfied with this response and with other aspects of complaints handling and complained to us.

We upheld Mr C's complaints because there was no evidence that the company had complied with the conditions of membership of the scheme at the time of their joining. We also found that the council had not sought Mr C's agreement to use an arbitration scheme in relation to his complaint against the company, and had not responded reasonably to his correspondence or complaints.

Recommendations

We recommended that the council:

• review the application audits of all members of their 'buy with confidence' scheme, identify any application audits that were not reasonably completed and re-audit those applications (members whose applications are found not to have met the conditions for membership should then be removed from the scheme pending re-application);
• provide refresher training to all officers who undertake audits of applications for membership of the scheme;
• apologise to Mr C for not implementing a condition of the scheme;
• remind relevant officers of the conditions of the scheme and the steps that require to be taken in dealing with complaints about members of it;
• seek the agreement of Mr C and the company for the use of an arbitration scheme in relation to any outstanding complaints; and
• apologise to Mr C that they did not respond reasonably to correspondence.

Summary

Mr and Ms C complained because the council decided to transfer their child to a composite school class (a class in which there are pupils from two or more year groups). Mr and Ms C said that this was done without any proper prior notice or discussion. They also said they learned this three days before the end of term and suspected that this was intentional. Mr and Ms C also complained that their child was being discriminated against in terms of age and questioned whether the council had followed their stated policy.

When investigating the complaint, we took into account all the relevant information, including the complaints correspondence, phone notes, emails and the policy concerned. We did not uphold the complaint, as our investigation found that the council had taken action under the policy to inform parents (through newsletters and the parent council) about what was happening. Council documents also showed that it had not been possible to tell Mr and Ms C earlier, as the school did not know its final roll until near the end of term, and further changes to the roll could have led to further restructuring. Although Mr and Ms C also believed that their complaint had not been handled correctly, the evidence showed that they had been advised of a delay and the reasons for it, and that they had said they were happy with this.

Summary

Mr C, who is a solicitor, complained on behalf of a client (Mr A) that the council acted unreasonably when they included a note on planning permission issued in response to Mr A's planning application. The note said that the building referred to in the application was not a dwelling house. Our investigation found that, in stating an opinion on a legal interpretation, the note went further than normal informative notes. Although this was a view that the council were entitled to hold, we found that it was not appropriate to communicate it in such a note, and we found that they had acted unreasonably in doing so.

Mr A's representatives subsequently discussed the note with the council. Mr C said that they were told that the note could not be removed. Mr C then wrote to the council and said that he had been instructed to raise proceedings for judicial review. The council obtained legal advice from their solicitors. After considering the legal advice, the council removed the note. However, Mr C complained to us that the council had failed to engage with Mr A's representatives properly, which meant that they had to raise proceedings for judicial review before the council agreed to remove the note. Mr C said that they had incurred costs of over £8,000 and wanted the council to reimburse them. We did not, however, uphold this complaint. We found that under the planning regulations there were remedies available to remove the note, of which Mr A's professional advisers would have been aware. They could have pursued these rather than applying for judicial review. We also considered that the council had not been given a proper opportunity to consider the matter before the judicial review proceedings were started.

Recommendations

We recommended that the council:

• issue a written apology to Mr A for inappropriately including the note in the planning permission; and
• confirm to the Ombudsman that they have learned lessons from this case and will ensure that in the future, notes of this nature will not be included in planning permission.