Local Government

Summary

Mrs C complained about the council's handling of her complaints about noise from a nearby factory, in particular their handling of her concerns about night-time noise. Mrs C was also concerned about how they dealt with her complaint about their handling of the matter.

During our investigation we received evidence of the council's investigations in response to the complaints of noise nuisance, including carrying out noise measurements inside Mrs C's property. The council explained that, while they recognised that the noise disturbed Mrs C, they were unable to take any formal action as they were unable to establish that a statutory noise nuisance existed. The council had worked with the owner of the factory to carry out works on a voluntary basis but unfortunately these had not helped.

On balance, we upheld the complaint about the council's complaints handling, as we found that they failed to handle Mrs C's initial concerns in line with their complaints procedure. We noted, however, that their later handling of the complaint was in line with their procedure, and we were satisfied that they responded reasonably to the issues she raised, so we did not find it necessary to make any recommendations about this.

Summary

Mr C complained that the council had failed to acknowledge and respond to his online complaints about water drainage in his street.

During our investigation, we looked at information provided by Mr C, and at the council’s records. We found that the council took practical steps to resolve the issue underlying the complaints, in terms of trying to deal with the drainage problem. However, their records, to some extent, gave a confusing picture of how Mr C’s complaints were handled. We upheld his complaint, as we took the view that the council should have been aware that Mr C’s complaints required a formal answer, which they failed to provide.

Recommendations

We recommended that the council:

• apologise to Mr C for failing to respond formally to his resubmitted complaints; and
• review how this matter has been dealt with, in order to learn lessons.

Summary

Mr C complained that the council had failed to uphold a public right of way, following works by a landowner. These works meant that a channel of water that could previously be crossed on foot had been deepened. Although the council had provided details of an alternative route, Mr C complained that they had failed to uphold the right of way. He also complained that the alternative route was blocked by various fences and so was impassable.

When we reviewed the correspondence, we found that Mr C had not complained to the council about the fences that he alleged blocked the alternative route. The law does not normally permit us to investigate a complaint until it has fully completed the council’s complaints procedure (unless we do not consider it reasonable to expect this). As we considered this to be a serious allegation, we felt that it would be appropriate and reasonable for the council to firstly have a chance to respond. Although we did not consider that point further in determining Mr C’s complaint, we made a recommendation that they should do so.

When we considered the rest of Mr C's complaint, we found that the fundamental issue he was complaining about related to the council’s legal obligations under the Land Reform (Scotland) Act 2003. We can only look at what happened in terms of administration and cannot rule on legality, which is a matter for the courts. We reviewed the information that the council gave Mr C about possible alternative access, and on balance, did not consider that there had been an administrative failing on their part. Although we did not uphold Mr C’s complaint, we made a further related recommendation.

Recommendations

We recommended that the council:

• respond to Mr C's allegation that the alternative access is impassable; and
• confirm to the Ombudsman that they have, as detailed in a letter to Mr C, contacted the property owner to remind them of their obligations.

Summary

Mr C complained about the council’s handling of three planning applications. He said that the applicant had originally claimed that a number of people, including Mr C, supported all three applications. Mr C, however, said that he had supported only one (smaller) application. The police were still conducting an investigation into this when the council granted planning permission. Mr C questioned the transparency of the council’s decision.

Our investigation found that the information about the level of support for the applications came to light after the planning reports were prepared and they had to be amended. However, the copies on the council’s website were not updated properly and so Mr C questioned whether or not the committee, when they decided to grant permission, had considered the accurate reports. The council acknowledged that their website was out of date and said that this was an administrative error. They said that this did not mean that the committee had considered out of date information and explained that the matter was specifically brought to the chair’s attention at the start of the meeting. They also explained that they had taken legal advice and were told that, on the basis of 'innocent until proven guilty', the applications should be decided despite the ongoing police investigation.

Although the council provided the original and updated paperwork, there was no documentary evidence that could confirm exactly what papers the committee had considered. In addition, the legal advice had been given verbally, so there was no documentary record of what had been said. Although we upheld Mr C’s complaint that incorrect information was made available online, we did not find that the council had unreasonably determined the applications. They had taken legal advice and, from an administrative perspective, took a decision that they were entitled to take (although we did recommend that they keep records of such advice in future).

Recommendations

We recommended that the council:

• consider making contemporaneous records of verbal legal advice to ensure a clear audit trail; and
• update their website to reflect the accurate reports considered by the committee (in both the planning and committee sections).

Summary

Mr C complained that the council had not reasonably investigated and responded to his concerns about what he considered to be discriminatory treatment of his child by a teacher. He complained that the school had allowed the practice to continue and also believed that incidents and meetings/contact with school staff to discuss his concerns were not logged or recorded.

We upheld part of Mr C's complaint. Our investigation found that the council had carried out a reasonable investigation, considered all available evidence and responded to the issues raised. We also found, however, that the school had not recorded incidents and contacts in the appropriate way.

Recommendations

We recommended that the council:

• apologise for not ensuring adequate record-keeping; and
• emphasise to the school the importance of adequate record-keeping.

Summary

Mr and Mrs C’s child was diagnosed with autism. Their child was placed in a primary school, as they had wished, and received 25 hours learning assistance support a week, in the primary two year. There were, however, problems in managing the child's behaviour in class. As the primary three class would be larger, a meeting was held at the primary school during the summer, attended by Mr and Mrs C, their advocate, and various professionals. They discussed the child's imminent transfer and issues that school staff were having with managing the child's behaviour.

Mr and Mrs C’s child started primary three in a mainstream class but the following month the head teacher decided that the child's schoolday should be reduced to five hours, with two learning assistants supporting the child together. During the year, following further incidents, the head teacher excluded the child, and called Mr and Mrs C in for a meeting. Mrs C attended and after discussing matters with her husband, told the head teacher that they would not accept the terms set out for readmittance. Their child did not return to the primary school, and Mr and Mrs C appealed to an exclusion appeals committee. After the committee met, Mr and Mrs C were offered ,and eventually accepted, a place elsewhere.

Our investigation upheld Mr and Mrs C’s complaints that the council failed to take the appropriate steps in following their exclusion process and, in particular, that an out-of-date leaflet had been issued and that the council failed to keep adequate records. We did not uphold their complaints that the council failed to follow a clear plan for their child's inclusion, that staff had unreasonably restrained their child, and that the council had unreasonably pressured Mr and Mrs C into sending a placing request.

Recommendations

We recommended that the council:

• review its children and families department's current procedures for convening meetings similar to that held in Mr and Mrs C's case, to ensure that adequate notice is given, the agenda specified, the duration estimated and appropriate caveats given about the scope of note taking; and
• provide confirmation that steps have been taken to ensure that all obsolete information sheets on the process of appeal against exclusion have been destroyed and replaced with the current document.

Summary

Mr C said that the council had not reasonably consulted with him over the timing of major improvement works at his home. Mr C told us that he is a shift worker and often needs to sleep through the day. He said that tradesmen turned up at his home unannounced one Saturday in spite of a prior agreement that work would start the following Monday. The tradesman made noise that woke Mr C up, and he told us that he could not finish his shift later that night. Mr C complained to the council, as he understood that they should have asked his permission before sending tradesmen at a weekend. More tradesmen arrived at Mr C's property the following Saturday. He said that he was not given enough notice of this visit, as a card was only put through the door late on the Friday. Mr C's wife had contacted the council and said she was assured that the work would not go ahead, but the tradesmen still turned up next day. Mr C was also unhappy that workers came after 17:00 to remove scaffolding, and he was repeatedly asked to move his vehicle from the driveway whilst he was having his dinner. He said that when he refused, the scaffolders used lifting equipment to carry the scaffolding over his vehicle.

We upheld Mr C's complaint because tradesmen should not have attended Mr C's property at a time other than had been mutually agreed. We also found that the council missed opportunities to clarify their position in respect of weekend working when they reached an agreement with Mr C about the timing of the work and on receipt of his complaint. However, we did not find it necessary to make any recommendations. We did not find fault in respect of the visit after 17:00, as there was no evidence that Mr C had been advised that work on site would stop after this, and it appeared to have been an assumption on his part.

Summary

Mr C complained that the council had told him they would not deal with his complaint about their insurance third party administrator. We found that the council had not clearly explained to Mr C that they would accept complaints about administrative matters, but not about the decision-making of the administrator. However, we found it reasonable that they did not consider his complaints about the decision-making as this was open to challenge through the courts, and which Mr C subsequently successfully pursued.

Recommendations

We recommended that the council:

• ensure that all staff are aware that they can accept complaints about organisations acting on behalf of the council, and can accept complaints about the administrative handling of any insurance claim.

Summary

Mrs C complained on behalf of a family member (Mrs A) about the council's actions in relation to pre-school contact with Mrs A's son, who has special educational needs. Mrs C complained that the pre-school home visiting service did not reasonably attempt to contact Mrs A after a referral from a speech and language therapist, and that the educational psychology service did not undertake actions in line with an agreement with Mrs A.

Following investigation we did not uphold the complaint about contact as we found evidence that they did try to contact Mrs A. We did uphold the complaint about the educational psychology service, as we found significant differences between a handwritten agreement provided by Mrs A and the typed version that was subsequently referred to by the council, as well as more general issues around communication.

Recommendations

We recommended that the council:

• apologise to Mrs A that the educational psychology service did not provide a reasonable service in relation to the early years assessment process for her son; and
• revise relevant procedures and guidance to ensure that unsuccessful attempts at contact are recorded, that cover letters are provided with copies of reports or assessments sent to parents as part of the early years assessment and that there is consistency in all records made of discussions with parents.

Summary

Mr and Mrs C complained that the council did not follow the correct procedure when making their decision on a school planning application, which included a biomass boiler. They had concerns about the health implications, and said that the council did not appropriately take account of relevant guidance and material planning considerations. They also complained about the handling of their complaint.

There were environmental issues relating to this planning application, and the council explained that assessment of the application involved two key material considerations – the impact on the amenity of the area and local residents, in particular the visual impact, and the extent to which the facility complied with the guidance and regulations governing the operation and function of biomass boilers and associated emissions. The council also took into account the impact on residential amenity by reason of noise. The council explained that appropriate conditions were included on the planning permission and separate legislation is available to monitor emissions and noise.

In investigating this complaint we took independent advice from one of our planning advisers. He was satisfied that there were no procedural irregularities, with the exception of an oversight over the stack height. He pointed out, however, that a further assessment makes it clear the proposal falls well within the tolerances for control of emissions from such a stack. He confirmed that there are no grounds under planning policy and procedure for rejecting the biomass plant and stack application on health grounds. Health protection is not a material planning consideration unless there is specific planning guidance on the matter, especially where there are other regulatory frameworks in place to deal with the health impacts. He also noted that the council have policies for the use of biomass as a heating source for schools and that it is clear that the health consequences are not something they would take lightly.

We did not uphold the complaint about the planning decision as we were satisfied that the council took account of relevant guidance and material planning considerations in making their decision, and that they considered the concerns raised. We saw no evidence of anything wrong in the process, and we were satisfied they provided a detailed response to the complaint. However, while we noted that the council were moving between complaint processes at the time, we upheld the complaint about complaints handling as there were delays, a lack of information about what was happening, and a failure to signpost Mr and Mrs C to the next stage. As the council had already recognised these failings, apologised and taken steps to address them, we made no recommendations.