Local Government

Summary

Mr C said that the council acted unreasonably when granting a planning application for two houses. He complained that in doing so they had acted contrary to the opinion of their own adviser and officers and against the wishes of the local community. He maintained that the permission granted was in conflict with the council's own structure and local plans.

We investigated Mr C's complaint, taking into account all the complaints correspondence, minutes of the relevant committee meetings and the relevant planning documentation. We also obtained independent planning advice on the matters involved.

Our investigation found that Mr C was correct, in that the council's own advisers had said that a previous planning permission had brought the area concerned to capacity, and planning officers had recommended that the new application be refused. A community plan adopted by the council to inform the decision making process was also against the award of planning permission. However, the independent advice we received confirmed that the council had discretion to determine applications by interpreting development plan policies in a particular way, or by giving whatever weight it wished to the material considerations (genuine planning considerations related to the purpose of planning legislation, which is to regulate the development and use of land in the public interest) that applied. Our adviser noted that development plans are not just for guidance, but also that they are not rigid instruments for determining planning applications. In this particular case, the adviser said, the council (via a delegated committee) had decided to approve the application and in doing so gave reasons why, together with their reasons for feeling that this was not a departure from the development plan. The adviser also went to explain that the community plan to which Mr C referred was non-statutory planning guidance, and the council had discretion as to the weight they gave it when making their decision.

Taking this advice into consideration we accepted that the council had acted in accordance with their discretion, and in awareness of all the relevant facts.

Summary

Mrs C was issued with a penalty charge notice (PCN) for parking in a restricted area and obstructing the road. She complained to us that the council failed to give her the right to appeal the PCN to the parking adjudicator. In considering her complaint, the council explained that they followed the correct process when dealing with the PCN, and had no records of Mrs C requesting an appeal.

Our investigation was unable to obtain evidence from either party to support Mrs C's position. As we could not find additional supporting evidence that she had requested an appeal, we were unable to uphold her complaint.

Summary

Mr C owns a tenement flat in Edinburgh but has not lived there since June 2008. He told us that at that time he arranged with the Royal Mail to re-direct his mail, contacted the council’s revenues services about the change in liability for council tax and provided a forwarding address. In June 2010 he had registered with the council as a landlord, and day-to-day property matters were in the hands of a local property management company.

In February 2009, after Mr C had left the property, the council sent a notice to him and other owners under Section 24 of the City of Edinburgh District Council Confirmation Order Act 1991, telling them that repairs were needed to the property. Mr C only learned of the existence of the notice in 2012 when, in arranging a new mobile phone contract, he was told that the council had obtained an inhibition order against him because he had not paid the bill for these repairs, which were ultimately arranged by the council. Mr C was unhappy that despite telling the council that he had moved and giving them his forwarding address, he had not received contact about the repairs notice or the subsequent bill for the work.

Our investigation established that the council’s property conservation section wrote three letters to Mr C at the flat, firstly to inform him of the need for the works. They then said that in light of lack of action from owners the council would arrange repairs, and then in November 2009 they said that a contractor had been instructed with a start date, and provided the duration and indicative cost of the contract. None of these letters were returned undelivered. Some five letters were sent to the flat after the works were completed, in pursuit of Mr C’s share of the costs. Mr C received none of these and none were returned to the council. The council then put the matter in the hands of debt recovery agents who pursued action in the courts, culminating in the inhibition order.

We noted that Mr C had had his letters forwarded to his new address for a long period after he left the flat, and that none had been returned to the council undelivered. Our investigation found that the council had done nothing wrong and we did not uphold the complaint. We did, however, make a recommendation about making earlier contact with an absent owner’s property agent.

Recommendations

We recommended that the council:

• explore whether, before the initial service of accounts for works carried out under statutory notice, a check should be made of the public record for landlord registration to establish whether a property is being let out, to establish the contact address chosen by the landlord for the day-to-day management of the property, and to ask that the landlord make contact.

Summary

Mr C owns, but does not live in, a flat which is in part of a tenement building. In the building there are 11 other flats occupied by a mixture of private owners and council tenants. One of the tenants on the top floor reported to the council that there was water coming in, and the council arranged an external inspection of the property. The inspection indicated that repairs were needed to prevent further water penetration.

As a co-owner, the council issued a notice of repair to all other current occupiers under the terms of the Tenements (Scotland) Act 2004. This explained the broad legal position about repairs and offered three options for carrying these out. An estimate for the works was enclosed. It was made clear that there had to be a majority decision to proceed or a statutory notice for essential repairs might be needed.

Mr C said that he did not receive the council’s notices, and he complained to the council that they did not deal with the matter in accordance with their tenement management scheme. He also complained that he was unreasonably pressed by the council into making payment, despite his request for the matter to be put on hold while it was under investigation.

Our investigation found that the council had acted in accordance with the relevant legislation and their own procedures and, while it was accepted that Mr C did not receive the notices, we also accepted that these were posted to him, which completed the council’s obligations. Through their own investigation, the council had identified that there were some improvements that could be undertaken (for example, it was accepted that the description of the work contained in the statutory notices was not sufficiently accurate and they would be revising their processes in the future).

On looking into the issue of putting on pressure to make payment, we found that the legislation provided that once a majority decision was reached, it was binding on the owners and could be enforced by any owner against another. Accordingly, we did not uphold this complaint.

Summary

Mr C complained that the council would not provide a suitable alternative to the National Entitlement Card in order for him to access the travel concession he was entitled to. Mr C had objections to the nature of the National Entitlement Card, which he described as an identity card. He sent the card back to the council on two different occasions requesting that an alternative, single use for travel card be made available. However, the council did not provide this. Mr C subsequently submitted a formal complaint, and thereafter complained to us about the way the council had handled his complaint.

We did not uphold the complaint that the council failed to respond appropriately to Mr C's request for an alternative card. We noted the scheme was nationally run and managed and it was not for the council to provide alternative versions of access to travel concession. We found evidence that they had contacted the national office to seek advice about Mr C's request. We did, however, note that the council could have told Mr C they had done this, which would have given him more confidence in the process.

We upheld Mr C's complaint about the council's complaints handling. We found this to be poor in a number of ways, including the fact that two of their responses did not reach Mr C, that Mr C had to contact the council to chase up responses, and that some parts of the responses suggested that they had misunderstood the complaints. We noted the council had committed to complying with the new model complaints handling procedure being implemented by the SPSO's Complaints Standards Authority in early 2013.

Recommendations

We recommended that the council:

• issue Mr C with a full apology for the failings identified in relation to the handling of his complaint.

Summary

Mr C complained on behalf of Mr A, whose mother (Mrs A) required permanent residential care. The council had assessed Mrs A's finances and decided that she was able to fund her own care. Mr A complained to the council about their handling of the financial assessment and, dissatisfied with their response, took the matter to a social work complaints review committee (CRC). Based on the evidence submitted to them, the CRC ruled that Mrs A should be self-funding. Mr C complained that the information the council submitted to the CRC was incomplete and misleading. Furthermore, he did not consider that there was any evidence that the CRC took into account relevant guidance and legislation when reaching their decision. Mr C also raised concerns about the information that was made available to Mr A before and after the CRC hearing, and that the CRC chairman failed to disclose a conflict of interest.

Our investigation found that the information provided to Mr A before and after the CRC hearing was complete and in line with the published CRC procedure. The council's submission to the CRC referred to the relevant guidance and legislation, but we noted that it misquoted a key part of the legislation and paraphrased other sections without providing a full copy of them. Although we recognised that it was for the council to submit information in support of their position on the case, we found no evidence of the CRC having scrutinised the evidence submitted to them or having sought out copies of the guidance and legislation. We considered their report to be poor in that it did not give any detail of the reasoning behind their decision. We felt this was important as the report was to be passed to the relevant council committe for consideration of the recommendations being proposed by the CRC. We found that the chairman had known Mr A's wife in the past. We accepted, however, that there was no way that he could have identified this potential conflict of interest before the hearing, and there was no suggestion that he did not carry out his duties impartially. However, we considered that he could, and should, have made this known on the day to ensure transparency.

Recommendations

We recommended that the council:

• arrange for Mrs A's case to be reconsidered by a CRC, with specific consideration given to the legitimacy of the department's decision in terms of relevant legislation and guidance;
• take steps to ensure CRCs record the reasoning behind their decisions; and
• remind CRC panel members that they should declare any potential conflicts of interest.

Summary

Mr C complained about the way in which Strathclyde Partnership for Transport (SPT) handled the tendering arrangements for a passenger ferry service. Mr C complained that SPT failed to consult appropriately before deciding to award a new contract, issued a misleading statement in their minute of a meeting, and failed to handle Mr C's complaints appropriately.

Our investigation did not find evidence to uphold Mr C’s complaints. We found that Mr C had not identified any specific duty on SPT to consult, and there appeared to be no obligation for them to do so before the tendering exercise, although they had surveyed passenger numbers and usages of services. Mr C had told us that he was also aware that in answer to an information request, SPT had said that there had been no consultation. He said that this contradicted a minuted statement by a councillor at SPT's March 2012 operations committee meeting. However, we found that the statement was not in fact made by a member of the committee but by a councillor of a local authority that the ferry served, who had been invited to address the committee. Finally, on the complaints handling matter, we found that in pursuing his complaint Mr C had asked for a prompt response. The chief executive had, therefore, intervened - he had provided a prompt response, thus cutting short the published complaints procedure. The reply was informative, and although it was not to Mr C’s satisfaction, we did not find it inappropriate and it did not disadvantage him.

Summary

Mr C complained that the council had not taken into account his mother’'s (Mrs A's) views and wishes when they decided to defer her application for sheltered housing for six months. We found that the social work department took this decision reasonably based on Mrs A's poor health, the fact that the decision would be subject to constant review given Mrs A was in hospital and thereafter in a nursing home, and that the application could be immediately reactivated should Mrs A's health improve. There was also evidence that Mrs A was assessed by a medical officer and a social worker, and had been found not to be able to make decisions about her own welfare at that time. We noted, however, that the council had sent a letter to Mrs A's home address referring to 'her' recent request to defer the application. This was inaccurate, as Mrs A had not made the request, and we asked the council to ensure that in future their correspondence was accurate.

Mr C also complained that the lock on his mother's council house had been changed against her wishes. The council explained they had changed the lock on instructions of a family member holding Mrs A's power of attorney. (A power of attorney is a legal document that appoints someone to act or make certain decisions on behalf of the person who has granted permission for this.) The council had been provided with the power of attorney documentation, and had accepted that that person was acting on Mrs A's behalf. They also provided different documentation which showed that Mrs A had asked the council to correspond with only that family member in relation to her affairs. On this basis, we found the council's actions in following the instructions of the power of attorney to be reasonable, and did not uphold the complaint.

Summary

Ms C entered into a tenancy agreement, but almost immediately there were problems with the property and the landlord. These were made worse when a technical fault meant that her housing benefit was delayed. Ms C considered that the council had not been helpful to her when she approached them and that they had inappropriately given information to her landlord. She complained to them about this. The council investigated, accepted that her concerns had not been referred to the correct department as early as they should have been and took steps to ensure there could be no repetition of this. Ms C was dissatisfied and complained to us.

We agreed that the council had not referred her concerns to the correct department as early as they should have and noted that the same issue had arisen in dealing with her complaints. We, therefore, upheld her complaint, but as the council had taken action to change this for the future, we made no recommendations.

Summary

Mrs C complained about the way the council investigated complaints of antisocial behaviour made against her and her family, and also about the way the council investigated complaints that she and her family made about their neighbours. We did not uphold Mrs C's complaint that the council had unreasonably instructed her neighbours to make complaints against her family, as we found that the council followed their own procedures by issuing incident diaries to neighbours who had made complaints. We also did not find any evidence that the council had encouraged complaint making in the way Mrs C alleged.

We did uphold the complaint that the council unreasonably issued letters about starting antisocial behaviour investigations into Mrs C and her adult children. We found that the council had not done this within in a reasonable time frame, considering the date the last complaint was made and the date the letters were issued. We did not, however, uphold the complaint that that the council had failed to investigate complaints of antisocial behaviour made by Mrs C and her family. We found evidence that the council recorded these, carried out investigations, and wrote to Mrs C and her husband explaining the results of the investigations.

Recommendations

We recommended that the council:

• apologise to Mrs C and her children for sending letters about an antisocial behaviour investigation at the stage that they did.