Local Government

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.

Summary

C, a representative of an organisation that provides support to planning application objectors, complained on behalf of an objecting neighbour (A). C raised a number of concerns about the council’s handling of a retrospective planning application. An unauthorised development had been reported to the council’s planning enforcement team. The retrospective planning application was approved, subject to conditions. C complained that the council failed to reasonably assess the risk of flooding at the site, that they failed to follow correct procedure for the scale of the development and failed to take into account an objection submitted by the Scottish Environment Protection Agency (SEPA).

We reviewed the relevant planning documents and sought independent advice from a planning adviser. We found that there was a failure to seek a flood risk assessment, particularly in light of the concerns raised by SEPA, the fact the development was on a listed flood plain and the Planning Officer had identified a risk of flooding as a reason for recommending refusal of the application. As such, we upheld complaint C’s complaint about the failure to request a flood risk assessment.

In respect of C’s concerns about the council’s consideration of SEPA’s consultation response, we found that the content of SEPA’s response was accurately summarised in the Planning Officer’s report to the Planning Committee. We did not uphold this aspect of C’s complaint.

Our final consideration was whether the council failed to refer the planning application to Scottish Ministers. We concluded that the council should have treated SEPA’s response as an objection to the planning application and that this should have led to the application being referred to Scottish Ministers. We upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to A for the issues highlighted in this decision. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/information-leaflets.
• That the council offer to meet with A to discuss ways of establishing to what extent the development may have contributed to an increase in flooding on their property and what action the council can take to mitigate this.

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

• The council should review their standard working practice of not requiring technical assessments in cases where they anticipate refusing an application due to the cost that would be incurred by the applicant.

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.

C's neighbour was granted planning consent for an outbuilding in their garden. C noted that this space was to be used for commercial activities and complained that the council failed to comply with their own adopted and emerging Local Development Plan policies when reaching the decision to approve the application. C did not consider that their concerns in this regard had been addressed in the report of handling.

C raised further concerns as to how the approved development would impact the neighbouring properties and the local area. C contended that the council failed to appropriately notify all of the affected neighbours.

When objecting to the development, and in their subsequent complaint to the council, C noted that approving the application would allow the developer, or future owners of the residential property, to conduct other activities that could be disruptive. C did not consider that the council had taken adequate steps to consider this eventuality, or to limit the activities to those listed by the applicant. C raised a complaint with the council, but did not feel that all of their concerns were addressed.

We took independent advice from a planning specialist. We found that the council were largely able to demonstrate that the planning application had been handled reasonably. Therefore, we did not uphold this complaint. However, the report of handling failed to address C's concerns about the potential for other activities taking place at the site in the future. Whilst we were satisfied that the council were entitled to reach the decision that they had, we were critical of them for failing to demonstrate that this issue had been considered prior to consent being granted and we made a recommendation in this regard. We also found that the council failed to address this, and another issue, in their responses to C's complaint. This was particularly concerning given how central these two issues were to C's complaints about their handling of the planning application. Therefore, we upheld this aspect of C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the failure to handle their complaint reasonably. 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 share this decision with their planning staff.

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 to the council about various aspects of Social Work Services (SWS) involvement with their children. C complained that SWS failed to invite C to a 72-hour Looked After Child (a looked after child is a child under the care of the council) review. C further complained that at the review, SWS had not given appropriate consideration to the children's care planning, and had failed to correctly follow the Section 25 Children (Scotland) Act 1995 in placing their children with a family member.

We took independent advice from a social work adviser. We found that SWS had made reasonable attempts to contact C to advise them of the review meeting. Therefore, we did not uphold this aspect of the complaint. We found that information presented at the meeting was lacking in respect of the children's own views, and SWS had failed to fully document their discussions with one of C's children. However, we considered that appropriate consideration had been given to care planning for the children. Therefore on balance, we did not uphold this aspect of the complaint but provided feedback to the council about the importance of ensuring accurate recording of social work activities, including seeking views, to inform care planning.

We also found that although C was in disagreement with the placement, and the views of the children themselves had been lacking, C's estranged partner had authority under section 25 of the Children (Scotland) Act 1995 to agree to the voluntary arrangement. We found SWS had followed best practice in ensuring C's estranged partner was appropriately supported in their decision-making regarding the children's care planning, and although there had been a delay in signing the section 25 paperwork, the placement had been valid. Therefore on balance, we did not uphold this aspect of the complaint.

C further complained that SWS had unreasonably presented at their home during COVID-19 restrictions. We found that SWS had failed to follow their own COVID-19 guidance relating to home visits by not exploring the option of a remote meeting with C. We also found SWS had not provided C with a copy of the relevant guidance; had not made enquiries as to the status of C's health; and had not confirmed what PPE would be required to support the visit in advance. We upheld this aspect of C's complaint to the extent that SWS had failed to follow its own guidance, but not to the extent there had been a breach of public health guidance for which this office has no jurisdiction.

C also disagreed with the council's responses to their complaints and the manner in which these had been handled. We did not find any concerns with the manner in which the council had handled C's complaints, all of which were responded to in line with the Model Complaint Handling Procedure and good complaint handling principles.

Recommendations

What we asked the organisation to do in this case:

• Apologise to C for the failings identified. 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:

• Feedback the findings of this investigation to relevant staff for reflection and learning, and to inform future practice.

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 a financial assessment carried out in respect of their parent (A)'s, care costs. C complained that the council wrongly determined that in transferring the title to A's property to C three years previously, A had intentionally deprived themselves of capital to avoid paying residential care costs. C disagreed with the council’s decision to treat the value of the property as notional capital when calculating the costs that A owed.

There followed extensive communication between the council, C and C's solicitor. According to C, A had no expectation of going into care when they transferred the property, or at any point in the future. C said that A was a very active, intelligent and healthy individual who had every intention of remaining in the same home for the rest of their life. Nor, as far as C was aware, had A had any thoughts of disposing of some of their assets to avoid paying for care in the future.