Local Government

Summary

C complained about the way that the council had handled a planning application related to a development of new homes adjacent to their home. In particular, C expressed concern about the position and proximity of one of the plots to their home and the detriment this would cause in terms of overshadowing and loss of daylight.

On first receiving C’s complaint, we considered that the council’s complaint response had not fully addressed the issues C had raised, and we therefore asked the council to write to C again at stage two of their complaint handling procedure. As C remained unhappy with the council’s response on the matters of overshadowing, and on their conservatory and kitchen/diner not being considered as habitable rooms when determining any loss of amenity, they returned their complaint to us for further review.

We took independent advice from a planning adviser. We found that the council had managed the planning application in keeping with the relevant guidance and we did not uphold this aspect of C’s complaint. However, we provided feedback to the council on the way in which the impact on amenity had been recorded in the Report of Handling, and in relation to retention of records, particularly when known objections had been raised. On the matter of complaint handling, we found that the council had unreasonably failed to respond to C’s original complaint on the planning application and we therefore, upheld this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to fully address the complaint of overshadowing in their complaint response, and of not ensuring the investigation was undertaken by someone with no prior involvement in the circumstances being complained about. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.

In relation to complaints handling, we recommended:

• The council should comply with their complaint handling procedure and ensure matters complained about are fully responded to.

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, a taxi driver, complained about the way the council had handled their medical examination which they were required to attend to determine their fitness to DVLA Group 2 medical standards (medical standards for driver licencing refer to two groups, with Group 2 licence holders usually requiring substantially higher medical standards).

C had passed the medical examination pending the results of an Exercise Tolerance Test (ETT). However the council did not follow up on the results of this test. As such, C was unaware until their next medical some years later that their ETT had met the threshold for referral to DVLA for further consideration of their fitness to drive. C had continued to work as a taxi driver throughout this time. On recognising this oversight, C’s taxi licence was suspended to be later re-instated after an assessment undertaken by an NHS cardiologist (heart specialist) was reviewed by the council’s occupational health provider and they were considered fit to drive. In complaining to the council, C was advised the matter would be investigated internally and no further response was received, despite their requests for further updates.

We found that the council’s administration of C’s medical examination was unreasonable, noting that the ETT results had not been followed up on as they should have been, and that this oversight had not been noticed until C’s next medical examination some years later. Therefore, we upheld C’s complaint.

We found failings with the council’s complaint handling, noting they had not fulfilled their duties in keeping with the Model Complaint Handling Procedure for local authorities. Therefore, we also upheld this complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to process their taxi driver licence application reasonably and for failing to reasonably respond to their complaint. 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:

• The council should ensure the status of driver licences pending further medical tests are checked to ensure they remain valid.

In relation to complaints handling, we recommended:

• Complaints should be accurately identified and dealt with through the complaints handling procedure.

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 raised a complaint on behalf of their advocacy partner (A). Following A’s arrest, C complained that A’s child (B) had been removed by social work services (SWS) from A’s care and placed with their non-custodial parent (D) without legal authority, against B’s express wishes and without taking account of A’s views. C also raised concerns that during B’s residency with D, SWS had not appropriately facilitated contact between A and B, had unreasonably requested A complete a parenting assessment and had failed to reasonably respond to A’s further concerns about B’s welfare.

In their response, the council explained that D had enacted their parental rights and responsibilities (PRR) and assumed care of B when A had been arrested which they had helped support. They said that a range of professionals had been actively involved and utilised different approaches in obtaining B’s views. They noted that contact between A and B had not been straightforward, and that the regularity of contact had been disrupted by decisions of both A and B. They said that the requirement that A complete a parenting assessment had been reasonable given the longstanding issues of concern and more recent issues involving A and that the concerns A had raised about B’s welfare while in D’s care had been treated seriously and resulted in prompt attention.

We took independent advice from two social work advisers. We found that there was a lack of recording of the discussions and the process by which the decision was taken to place B in D’s care and that there was a failure to convene a formal interagency referral discussion (IRD) to plan the approach on a multi-agency basis to assess the suitability of D as alternative care for B. We upheld the complaint as a result of the failings identified.

We found that once B had moved to D’s care, their conflicting and changing views should have prompted a referral to independent advocacy sooner. However, the council had taken reasonable steps to ensure B’s views were appropriately sought and taken regular account of. Therefore, on balance, we did not uphold this aspect of the complaint.

We also found that once B had moved to D’s care, SWS’ approach to facilitating contact between A and B had been in line with national guidance and social work practice at that time, that SWS were justified in their decision to request that A complete a parenting assessment given the long-standing concerns regarding A’s parenting capacity and history caring for B and that SWS had responded reasonably to the welfare concerns A had raised. We did not uphold these aspects of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A, Band C for the failings identified. Theapology should meet the standards set out in the SPSO guidelines on apologyavailable at www.spso.org.uk/information-leaflets.

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

• Ensure the findings of this investigation have been reflected on, and learning is shared, with the relevant department and externally with Police partners to ensure effective future practice.
• In child protection matters, it is important that all multi-agency decisions and discussions with those affected, and their views, are clearly recorded.

Summary

C submitted objections to an application for the erection of a house close to the boundary of their property on the grounds of overlooking. The council produced a report of handling which included their responses to C’s concerns. The application was approved subject to conditions including a condition relating to the interests of C’s residential amenity. When the development was begun, C was concerned that the overlooking issue remained. C contacted the council advising of their concerns and the council requested the relevant condition to require a fence to be erected along part of the boundary line. C raised complaints with the council highlighting specific concerns with the report. The council responded advising that they considered the report had given reasonable consideration to the matters raised.

We took independent advice from a planning adviser. C complained that the report contained material errors and grossly understated the extent to which their property would be overlooked. We found that certain key information was not included in the council’s assessment of the potential for overlooking, that insufficient attention was given to the height difference between the two properties and the close proximity of C’s property to the proposed house, and that the assessment of the existing vegetation and trees was inaccurate and that these could be considered a material error in the report. We found that available evidence should have highlighted to the council that there would be significant overlooking from the proposed house and that measures should have been taken to mitigate this either through conditions to retain the natural screening, or changes to the positioning of the proposed house. We also found that the requirement to build a fence was unlikely to address all of the overlooking issues. We found that overlooking from the proposed house was foreseeable and that the report failed to recognise this or to include measures to mitigate the impact on C’s residential amenity. We upheld C’s complaints.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C that the Report of Handling contained material errors and failed to recognise the extent to which the proposed house would overlook C’s property. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• Contact C with a view to discussing and implementing further measures to mitigate the overlooking from the proposed house.

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

• That the council review this case with their planning service and consider ways of improving the scrutiny of reports prior to their sign off.

Summary

C complained that the council failed to respond reasonably to their enquiries. A planning application was submitted by a business located close to C’s home. C contacted the council’s planning service asking a number of questions in relation to the proposed development. There followed a protracted correspondence during which C tried to obtain answers to their questions. The council treated some of C’s questions as objections to the planning application and C was advised that they would receive no response to these points. Some of C’s outstanding questions were eventually answered after C involved their local councillor, but a number remained unanswered.

Generally, we did not consider that C’s enquiries could be viewed as objections to the planning application. We noted the council’s comments about resourcing and the need to focus on core business but found no reasonable explanation as to why the enquiries could not have been dealt with sooner. We considered there to have been a clear and unreasonable delay to their response to C’s enquiries. Therefore, we upheld this part of C’s complaint.

With regard to the procedural aspects of the complaint handling, we found that the council had responded to C’s complaint reasonably. Therefore, we did not uphold this part of C’s complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to reasonably respond to enquiries made by C regarding the planning process. The apology should meet the standards set out in the SPSO guidelines on apology at www.spso.org.uk/information-leaflets.
• Invite C to submit any outstanding questions they may have with a view to investigating these and providing C with a written response.

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

• The council should review how they handle enquiries from members of the public to ensure that general enquiries are responded to, or that individuals are appropriately signposted to relevant national guidance in good time.

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 social work failed to reasonably assess A’s needs following a hospital admission, in relation to whether they required 24-hour care, and C’s concerns that social work ignored clinical opinions.

We took independent advice from a social worker. We considered that it was reasonable for social work to have concluded initially that A did not technically meet the criteria for residential care and was functionally fit to be discharged home with a support package. While we noted that the opinions of others were taken into account in arriving at this conclusion, we considered that there was a failure to fully examine the emotional impact on A of potentially being discharged. The council had already acknowledged that there could have been more detailed discussion with A’s GP and further exploration of the views of a specialist nurse from the psychiatry team, which we agreed with. We also considered that some wording used in the social work assessment to describe A’s reactions could have been perceived to lack empathy and compassion. We upheld this complaint.

A suffered a stroke three days after the initial social work assessment was concluded. They were in temporary accommodation at the time, awaiting further assessment. It was subsequently agreed that A required 24-hour care. They remained in the temporary facility until their transfer to a care home, but died a month later. C complained that a delay in social work re-assessing A delayed their transfer to a care home, which meant the transfer took place during lockdown when the family were unable to support A with the move. The council advised that A was re-assessed in a timely manner once a care home vacancy became available. We considered that it was reasonable for the assessment to be updated once a vacancy arose and were satisfied that the delay was due to a lack of available places and not due to a failing on the part of social work. We did not uphold this complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for failing to give enough weight to the emotional impact on A of potentially being discharged and for the wording used to describe A’s reactions. 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:

• Appropriate weight should be given to the emotional impact of discharge on clients. Social workers should be aware of the impact of language used and where it may be perceived to lack empathy and compassion.

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 an incident in which their late parent (A) fell from their wheelchair prior to being assisted into bed by two home carers employed by the council. Following the fall, the carers assisted A from the floor and proceeded with the transfer into bed. However, A was later taken to hospital where it was discovered they had sustained a fractured femur as a result of the fall. C considered that the fall had been caused by the carers’ failure to check A was safely secured in the wheelchair by failing to ensure A’s lap belt was fastened, the footrests were in the correct position and a glide and lock sheet was in place. C also complained that the carers had failed to obtain medical assistance following the fall despite A being in pain.

The council’s position was that A had been safely secured in their wheelchair and the fall had occurred when the carers were preparing to move A with the use of a hoist, at which point it was discovered that a lock and glide sheet had not been inserted into A’s wheelchair. The council also stated that the carers had proceeded to move A into bed after checking whether A had suffered any injury and required medical assistance, which A had declined.

We took independent advice from an occupational therapy adviser. We found that it was not possible to say how A’s fall had occurred given the differing versions of events. We noted that, based on A’s risk assessments, A had not required the use of a lock and glide sheet and that the carers would not have been responsible for ensuring it had been placed into A’s wheelchair. In any case, this may not have prevented the fall from occurring. Additionally, we noted that lap belts were not considered a measure of restraint and it was normal practice for this to be removed by carers when attending to a service user, unless otherwise specified. We also considered that it had been appropriate for the carers to have moved A after the fall given the evidence suggested that they had checked whether any injury had been sustained and assistance was required.

Therefore, we did not uphold the complaint. However, we identified that the council had failed to adequately investigate the incident involving A and accordingly made recommendations 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 the failure to carry out a fact finding investigation in relation to the incident involving A despite advising this had been commissioned in the complaint response and the lack of certainty as to the correct date on which A had been admitted to hospital in the council’s complaint response. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/information-leaflets.

In relation to complaints handling, we recommended:

• Incidents like this should be reviewed and/or overseen by senior management to identify the root causes of the incident and whether any learning can be taken forward.
• The council should ensure that information provided in response to complaints is factually accurate.

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 on behalf of their client (A). Following an incident at A’s home, A agreed with the council's Child Protection Team that their two children should be placed in the care of a relative. This was a voluntary placement under the Children (Scotland) Act 1995. C emailed the council’s social work team to inform them that A would withdraw their consent to the placement if no progress was made in their case.

A attended their youngest child’s school and attempted to take custody of their child, but was prevented from doing so by social workers and the child left in the custody of relatives. Later that day, A attended their relatives’ house and A was prevented from taking custody of the child. Social workers were not present, but police attended and then refused to intervene after speaking to the social workers.

A then agreed to the voluntary placement again. C advised A that they should withdraw their youngest child from the placement and attend their school to collect them and C informed the social workers of this advice. In response, social workers obtained a Child Protection Order (CPO). C complained to the council that they had failed to respond to A’s wishes regarding the placement. The council did not identify any substantive failings.

C complained that the council’s response was inadequate and inaccurate and that the council had failed to obtain a CPO timeously. We took independent advice from a children's social work adviser. We found that A had tried to end the voluntary placement twice and that A had been prevented from exercising their parental rights. We found that the council had failed to obtain a CPO timeously and that they had failed to adequately investigate or respond to C’s complaint. We upheld C’s complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for their failure to take A’s parental rights into consideration and their failure to administer the placement of A’s children adequately. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/information-leaflets.
• Apologise to C for their failure to investigate and respond adequately to C’s complaint. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/information-leaflets.

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

• Council staff should be aware of and take into account relevant guidance and legislation in a situation like this including parental rights and carrying out timeous checks of voluntary placements of children under section 25 of the Act.
• Staff dealing with complaints should be familiar with the council’s Complaint Handling Procedure, understanding the importance of communication and the need to demonstrate thorough investigation of the points raised.

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 in which the council discharged a planning condition. C told us that planning permission for a development of new properties located next to a busy road, included a condition which required the installation of a close boarded fence and/or earth bund at least 1.5 metres tall and enhanced glazing for rooms facing the busy road to mitigate noise. The developer was required to provide detailed plans in advance which would be subject to written approval. C also complained that the council failed to refer the issue to their Enforcement Team, which C believed to be contrary to the enforcement charter.

We took independent advice from a planning adviser. We found that the process to discharge a condition should be transparent, properly recorded, and easily accessible as part of the public record. There had been failings in the way in which the decision was reached as the council failed to keep adequate records. We concluded that whilst the council appear to have considered the location and height of the fence when discharging the condition, they do not appear to have considered the quality. When new information came to light (about the quality of the fence and questioning whether the height of the fence was adequate) the council should have reviewed the evidence and reconsidered the adequacy of the information that they used to discharge the condition.

In light of the evidence, we found that there was maladministration in the way in which the council made the decision to discharge the planning condition, which was unreasonable. We also found that the council unreasonably failed to investigate C’s concerns about the quality of the fencing. As such, we upheld C’s complaints.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the way in which the decision was made to discharge planning condition 9, and particularly that the decision was not transparent or easily accessible to the public. Apologise to C for failing to reasonably investigate their concerns about the quality of the fencing and apologise to C for failing to ensure the developer carried out the agreed remedial works. 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:

• Complaints of suspected planning breaches should be investigated in line with the planning enforcement charter and all new evidence should be given reasonable consideration. Enforcement action should be considered if and when appropriate.
• Decisions to discharge planning conditions should be transparent, properly recorded and easily accessible as part of the public record.
• Agreed actions should be monitored with sufficient follow-up to ensure compliance.

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 handling of a planning application. Planning consent was approved for a development that was contrary to the Local Development Plan. Whilst C acknowledged that the Planning Committee were entitled to approve the development, they considered that, in doing so, the Committee failed to explain what material considerations had contributed to the decision to go against the Local Development Plan and approve the application. C also complained that a pre-determination hearing should have been held, but was not.

C raised their concerns in a complaint to the council. They said that it took many months of repeated attempts to obtain a response from the council and, when the council did respond, C did not consider that their concerns had been addressed.

We took independent advice from a planning specialist. There was no question that the Planning Committee had the authority to approve developments that were contrary to the Local Development Plan, as long as there were relevant material considerations, or justifiable reasons for doing so. We acknowledged the council’s position that the report of handling for the application set out the material considerations that had to be taken into account when determining the application and that this information was available to the Planning Committee when reaching their decision. However, the report of handling presented the material considerations with reference to the Local Development Plan and explained in detail why the Planning Officer considered the proposed development went against the Local Development Plan and why they recommended the application be refused. We found that there was a clear unexplained “leap” from the Planning Officer’s recommendation to refuse, to the Committee’s decision to approve. We considered that there should have been a clear record of the reasons for approving the planning application in the minutes of the Committee meeting and in the decision notice. We were critical of the council for failing to record the reasoning behind the Planning Committee’s decision. Therefore, we upheld this aspect of C's complaint.

We were satisfied that the decision on whether to hold a pre-determination hearing was a discretionary decision for the council to make. We found no evidence to suggest that their decision not to hold a pre-determination hearing was unreasonable. Therefore, we did not uphold this aspect of C's complaint.

With regard to the council’s handling of C’s complaint, we found that there were excessive delays to the council’s response, despite C chasing them on a number of occasions. We were critical of the council’s delays and their failure to consider C’s correspondence through their complaints procedure. We were also critical of the fact that, when the council issued their response, they failed to address the main points of C’s complaint. We upheld this aspect of C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the poor handling of their complaint and provide a full response to their initial enquiry as to the Planning Committee’s reasons for approving the application contrary to the Planning Officer’s recommendation. 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:

• That the council consider how they may take steps to clarify complaints to ensure that they are progressed through the correct channel.
• That the council share this decision with members of the Planning Committee and remind them of the need to properly document the reasons for their decisions.

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.