Local Government

Summary

Mrs C complained that the council failed to follow appropriate policies and procedures after an incident involving her child in the playground at school.

We took independent advice from a social worker in relation to the council's handling of matters. We found that the council had acted appropriately immediately after the incident. However, we found that in the period that followed there had been significant failings in the way things were handled. Contrary to GIRFEC principles (Getting it Right for Every Child - the nationwide policy which puts the child at the centre of decision-making and ensures their views are heard), there was a clear failure to involve the child, or take account of their clearly stated views about what had happened to them. The child had written to the council with their concerns about what might happen next, and what would make them feel safe to return to school, and this letter went unacknowledged.

We also found failings in communication with Mrs C. In line with council policy, a Lead Professional should have been nominated when other agencies became involved. The Lead Professional would have been a single point of contact for Mrs C, and would have helped to ensure there was clearer communication and management of expectations. We found there was no clear communication or co-ordination between agencies, which would have heightened the family's anxiety.

In light of these failings, we upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mrs C and her family for failing to follow GIRFEC policy, by failing to take the child's views into account and by failing to ensure that the child was fully involved in decisions affecting them. Also apologise for the failings in communication with Mrs C, with regard to what steps were being taken to resolve matters and what could be expected in terms of timescales. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.
• An appropriate person from the council (probably the Headteacher) should respond to the child's letter, acknowledging the impact on them and providing an explanation for the original decision that they should not move class after the incident.

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

• Staff should be confident in applying GIRFEC policy to incidents such as this one. They should ensure that children are fully involved in decisions affecting them and their views taken into account. Clear records should be kept of communication between agencies, and staff should be aware of the importance of clarity in communication between agencies. Staff should be clear about the roles of Named Person and Lead Professional.
• Relevant staff should be clear about who will take the lead in situations such as this. Staff should be aware of the importance of clear and accurate communication about the steps being taken to resolve matters and what can be expected in terms of timescales.

In relation to complaints handling, we recommended:

• Complaint responses should be appropriately empathetic and include a recognition of impact.

Summary

Mrs C complained in her own right, and on behalf of four other parents, that a head teacher failed to follow relevant procedures after an incident involving scissors at a school, and about the council's handling of complaints about the incident.

We found that the council's Anti-Weapon/Knife Crime Policy stated that certain actions were to be taken on the day of an incident, including the weapon being confiscated and placed in a locked cabinet; the police being notified; and senior management and specific council staff being notified. The evidence showed that none of these actions were taken on the day of the incident.

We also found that the council's responses to the complaints did not reasonably reflect the findings of the council's investigation, and did not include an apology for the police not being notified on the day of the incident. In addition, the council's handling of the complaints was not completely in line with the complaints handling procedure.

We upheld Mrs C's complaints. We found that the council had already taken steps to remedy the failings identified and so we did not make any further recommendations.

Summary

Miss C's child (Child A) has additional needs and is a primary school pupil. Miss  C complained to the council about the school's handling of her concerns about a playground incident involving Child A and three older children. Miss C complained that the school failed to inform her of the incident and to record it. She also raised concerns about the school's general communication and stated that they failed to provide her partner with weekly updates about Child A as agreed.

We found that the school dealt with the playground incident in a proportionate and reasonable manner. When the headteacher was made aware of the incident, they promptly arranged a meeting with Child A's parents to discuss their concerns. We also found that the school maintained weekly contact with Miss  C's partner as agreed. We found that this only stopped when Miss C informed the school that Child A had received a diagnosis of autism (a  developmental disability that affects how a person communicates with, and relates to, other people) and the school felt it was more appropriate to arrange a formal meeting. We concluded that the school's decision was reasonable in the circumstances. We did not uphold the complaints.

Summary

Mr C complained about the council's handling of a planning application. In particular that the council had failed to consider their waterside development policy (policy Des 9), had failed to consult with the Scottish Environment Protection Agency (SEPA) and had unreasonably accepted that works for the planning application were initiated on time. Mr C also complained about the council's communication with him.

We took independent planning advice. We found that that policy Des 9 should have been referred to in the report of handling (a report containing information on a planning application). It was not possible to know whether this policy had been taken into consideration during the processing of the planning application, as was required. We also found that it was not possible to say whether consideration of policy Des 9 would have resulted in a different outcome. We upheld this aspect of the complaint.

We also found that SEPA should have been consulted and we upheld this aspect of the complaint.

We did not find any evidence that the council had unreasonably accepted that works for the planning application were initiated on time and we did not uphold this part of the complaint.

Regarding communication, we found that some of the issues raised by Mr C had been not been adequately addressed, however, other issues raised by him had been reasonably clarified. We were concerned that a further response letter had had to be issued to Mr C. The council had accepted that there had been a delay in responding and that Mr C should not have had to submit a formal complaint to prompt a full response to his enquiries. We upheld this aspect of the complaint.

Recommendations

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

• Development plan policies relevant to the processing of any particular application should be referenced in the report of handling.
• Where a statutory consultation appears to be required as part of the processing of a planning application, but has not taken place, this should be explained in the report of handling.

Summary

Mr C submitted a housing application to the council, which was refused. Mr C complained that the council responded to his request unreasonably. The council said that allowing Mr C's request would have meant that the housing waiting list was effectively bypassed, and that there was a high demand in that area for the type of housing Mr C had requested.

We reviewed the relevant information and legislation. We found that the housing legislation gives the council discretion to consider what are reasonable grounds for refusing an application. It also allows for the council to refuse permission due to others waiting for housing who may have a greater need. We found that the explanation provided by the council was in line with the council's policies and with housing legislation. We did not uphold the complaint.

Summary

Mr C raised a number of concerns about the council's handling of a planning application. In particular that they failed to ensure a public consultation was carried out to a certain standard, they failed to describe the development appropriately, there was a flaw in a report, they had breached a condition of planning permission and that they failed to act when notified of wilful destruction of wildlife. Mr C also complained that the council inaccurately described their internal complaints procedure as independent.

We took independent advice from a planning adviser. In all instances, we considered that the council had acted reasonably and appropriately. We did not uphold any of Mr C's complaints. However, we did note that in reference to the public consultation, there were inconsistencies in the terminology used to describe the proposed development and the pre-application advert could have been clearer. We made a recommendation to the council in light of this finding.

Recommendations

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

• Pre-application descriptions and materials should be clear and materials used at consultation events should be obtained by the council to ensure the consultation is appropriate.

Summary

Mr C complained about construction site noise at a development near to his property. In particular, that there was a lack of notification about out-of-hours noisy works, the necessity of working so late and the lack of alternative/mitigating measures used by the developer, and noisy work being carried out before 8.00am or outwith recommended times at weekends. He also asked the council to consider his complaint within the context of the statutory noise nuisance legislation contained in the Environmental Protection Act (the EPA).

The council had stated that there was not a statutory obligation to notify residents of out-of-hours noisy work but that it was good practice for the developer to do this. They highlighted that they had asked the developer to provide notifications to Mr C's address after he originally did not receive one. The council also stated that they had provided consent for out-of-hours noisy work to take pace. In addition to this, they discussed alternative/mitigating measures with the developer but it was decided that these would not be practical at this particular site. Finally, the council advised that the Control of Pollution Act 1974 (the COPA) applies to construction site noise and it is not appropriate to use provisions under the EPA in cases like this. Mr C was unhappy with this response and brought his complaint to us.

We found the council's explanation for why they did not consider the noise complaints under the EPA to be reasonable. We did not consider that the EPA could not apply to construction site noise but we accepted the council's reasoning for this. We also considered the actions taken by the council were reasonable and in line with their obligations. Therefore, we did not uphold Mr C's complaint.

Summary

Mr C raised a number of concerns about the council's handling of his planning application.

Firstly, he complained that the council granted and then withdrew planning permission. The council had acknowledged that they had made an error when issuing his listed building consent, by using the template for planning consent rather than the correct listed buildings consent template. They were of the view that this was an administrative error and that, as such, the planning consent had not been legally granted. We were critical that the council had issued a decision on the wrong template, and we highlighted to the council that this could give the impression that plannng consent had been granted. As a result of this failure, and the failure to promptly and clearly clarify why the mistake was made and what would be done to correct the error, we upheld this aspect of the complaint.

Secondly, Mr C raised concern that the council unreasonably disputed that his planning application included an access through a wall into a council car park. We took independent planning advice and concluded that the council had not disputed that access arrangements were included in the application. We did not uphold this aspect of the complaint.

Lastly, Mr C complained that the council unreasonably withdrew permission for him to form the access in the wall, despite having granted others access. He said that the council failed to take account of information he provided them with, which he considers proves his right of access. We were satisfied that the council had taken Mr C's evidence into account. Who has title or right of access is not something that we can determine, and this issue would need to be pursued through legal channels. We did not uphold this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Write to Mr C to apologise for failing to promptly notice the error regarding the template, which gave the impression that planning consent had been granted. Also apologise for failing to provide Mr C with a reasonable explanation for what happened, and why, and for failing to provide an appropriate apology for their errors at that time. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.

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

• The public should be confident that when a formal notice is issued by the council, the notice is correct and can be relied upon. Any incorrectly issued notices should be identified promptly and steps should be taken to put right any errors, an investigation should be carried out in order to identify why the errors occurred and steps should be taken to ensure that the errors will not re-occur.

Summary

Mrs C submitted a request to withdraw her children from primary school with the intention of home educating them. Around two weeks after Mrs C submitted her request, an incident occurred with one of her children and a playground assistant which Mrs C reported to the police. Following this, a concern was raised about Mrs C's wish to home educate her children. A referral was made to the Children's Reporter (CR) and as a result, consent to withdraw the children from the school roll was withheld for some six months. The CR concluded that grounds for referral were not met and consent to withdraw the children from school to home educate them was eventually granted.

Mrs C complained that the depute head teacher failed to follow the appropriate policy and procedures in respect of the recording of physical intervention, after the incident involving the playground assistant. The council's policy on physical intervention states that this should be used only as a last resort when all other strategies have been exhausted. It may be used to de-escalate or prevent a violent or potentially violent situation but must not be used to enforce discipline or compliance. We found that the use of physical intervention was not justified in terms of the policy, and the council should have recorded the incident. We upheld this aspect of Mrs C's complaint.

Mrs C also complained about the referral to the CR. She was referred on care and protection grounds, namely that her children were absent from school without reasonable excuse. Mrs C said that the council pursued non-attendance even though national guidance states that in most cases it would be inappropriate to initiate or pursue non-attendance procedures in respect of a child awaiting consent to be withdrawn from school. It was unclear from the evidence whether the referral to the CR came from police or the council (as both were involved), but there was evidence that the council encouraged the police to make a referral on the grounds of the children being absent from school without reasonable excuse, despite what the guidance said in this regard. The council were aware of Mrs C's reasons for keeping the children away from school after the incident with the playground assistant. We considered that the council's referral to the CR (or their involvement in the referral) was unreasonable given that it was made in the knowledge that Mrs C had a legitimate reason for the children not attending school. We upheld this aspect of Mrs C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mrs C for failing to follow their policy in respect of the use of physical intervention, and in particular for failing to record the incident. The apology should meet the standards set out in the SPSO's Guidance on Apology https://www.spso.org.uk/leaflets-and-guidance.
• Apologise to Mrs C for their role in the referral to the CR, given she had a reasonable excuse for the children not attending school because she intended to home educate them, and there were no child protection concerns. The apology should meet the standards set out in the SPSO's Guidance on Apology https://www.spso.org.uk/leaflets-and-guidance.

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

• Staff at the school should understand the policy and know reporting requirements in relation to the use of physical intervention and restraint.
• The council should have a working knowledge of the terms of their policy in relation to home education. They should be clear about the procedures in place for sharing information about families.

Summary

Mr C complained about the council's response to his report of a breach of planning control. He also complained that the council failed to respond reasonably to his complaint.

We took independent advice from a planning adviser. We found that the council had provided a reasonable explanation about the actions they had taken in response to the alleged breach of planning. The council responded to the alleged breach within the appropriate timescales and had discretion to consider what the most appropriate response was. We did not uphold this part of Mr C's complaint.

Regarding complaints handling, we did find that the council's response to Mr C's complaint was outwith timescales. However, the response was thorough and provided a clear explanation of the actions taken. On balance, we did not uphold this aspect of the complaint.