Scottish Government and Devolved Administration

Summary

Mr C was found guilty of a breach of discipline for refusing an order to return to his cell. He submitted a disciplinary appeal, claiming that he had refused to return to his cell as he was being bullied and victimised by other prisoners in the residential hall. He also submitted a complaint that his bullying allegation had not been adequately investigated. His appeal was barred by the Scottish Prison Service (SPS) as it was not submitted within 14 days of the decision, as per prison rule 118. The SPS responded to Mr C's complaint, noting that their investigation had found no evidence to substantiate his bullying allegation. Mr C was unhappy with this response and brought his complaint to us.

Mr C complained that the SPS failed to appropriately investigate his complaint. The SPS were unable to provide us with evidence that an appropriate investigation had been carried out. They said that the investigating officer had not produced a written report and had since left the organisation. They told us that they had since improved their process and it is now compulsory for investigating officers to provide a written investigation report. We upheld Mr C's complaint and asked the SPS to provide evidence of their new process.

Mr C also complained about the decision to time limit his disciplinary appeal. The SPS confirmed that they have no discretion to consider an appeal submitted later than 14 days from the date of the decision. They acknowledged that existing guidance and forms do not make this clear and confirmed plans were in place to revise these. As an interim measure, they proposed to issue a Governors  &  Managers Action Notice (GMA) and amend prisoner notices to highlight the 14 day time limit. While the SPS had made it clear to Mr C that they had time limited his appeal as it was outwith the 14 days, they subsequently entered into discussion with him regarding the circumstances he put forward for the late submission. This gave the impression that his late appeal could potentially have been considered had the SPS deemed his circumstances exceptional, when that was not the case. Therefore, we upheld Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for the lack of evidence of an appropriate investigation of his complaint having been carried out. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/leaflets-and-guidance.
• Re-investigate Mr C's complaint, ensuring that the findings are appropriately documented.

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

• Until the SPS are able to complete their review of the disciplinary appeal guidance and planned review of the relevant forms, the SPS should raise a GMA highlighting to staff the time limit set out in rule 118, and reminding them of the importance of making prisoners aware of this; and update the prisoner notices on disciplinary appeals to highlight the time limit set out in rule 118. In both instances, it should be made clear that appeals will not be considered outwith this time limit, irrespective of circumstances.

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

The Scottish Environment Protection Agency (SEPA) stopped Mr C's shipping container for inspection. Mr C complained about the amount of time it took SEPA to release the hold on the container and the amount of time it took SEPA to arrange a further inspection. Mr C also complained that SEPA did not communicate reasonably.

We found that, during the period that the hold was on the container, SEPA were undertaking investigations to establish if the container could be returned to Mr  C's load site, and to establish if it was safe for their staff to carry out a further inspection there. We found that the hold on the container was released 12 days before it was returned to Mr C's load site for inspection. We found that the container was not moved as soon as the hold was released because of a disagreement between Mr C and his shipping agent. We, therefore, did not uphold Mr C's complaint that SEPA took an unreasonable amount of time to release the hold on the container.

We also found that SEPA were in a position to carry out a further inspection of the container five days after the hold on the container was released. However, we found that they were not able to carry out this inspection because the container remained in port due to the disagreement between Mr C and the shipping agent. We did not uphold Mr C's complaint that SEPA took an unreasonable amount of time to arrange a further inspection of his container.

Regarding communication, we found that SEPA should have communicated to Mr C, or to his shipping agent, why there was a delay in releasing the hold on the container. We upheld this aspect of Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for failing to explain what investigations were taking place regarding the load site before the hold on the container could be released. 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:

• Any reasons for a delay in releasing a hold on a shipping container should be communicated to the shipping agent or to the shipper.

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

Mr C lives near a recycling centre, and complained about the way the Scottish  Environment Protection Agency (SEPA) dealt with complaints of noise and dust coming from there. He complained that SEPA had failed to take appropriate sanctions against the site operators, saying they had been responsible for increased pollution coming from the site for the last few years. SEPA said that they had engaged with Mr C through a number of processes in seeking to address his complaints and concerns. They said that they were actively working to modify the existing licence to include prescriptive noise limits and operator monitoring to demonstrate this.

We took independent advice from an environmental health adviser. They confirmed SEPA's obligations in the circumstances of this case, both as a regulator and a waste management licensing authority. The adviser noted that SEPA had not taken the opportunity to put prescriptive noise levels in the waste management licence at the outset, but had now taken steps to rectify this.

In terms of SEPA's role as regulator, we considered that they generally complied with their obligations in relation to having a policy and framework for enforcement. However, we noted that noise monitoring was not carried out sufficiently and promptly by the regulator. With regard to enforcement, the adviser said that regulators have a duty to act when breaches of regulations or licence conditions are found. We considered that SEPA had met many of their obligations, however, noted that SEPA did not take the opportunity to serve notice for repeated non-compliance. We also found that SEPA took enforcement action of providing advice and guidance to limit noise and dust emissions from the centre; however, they did not serve an enforcement notice to limit noise and dust emissions to an acceptable level. Therefore, we upheld Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for failing to take appropriate steps following notifications of noise and dust arising from the recycling centre. The apology should meet the standards set out in the SPSO guidelines on apology available at www.spso.org.uk/leaflets-and-guidance.
• SEPA should reconsider the appropriateness of the enforcement action they have taken following notifications of noise and dust arising from the recycling centre, having regard to their policy and procedures, and all the circumstances of this case. Consideration should be given to the current situation, when deciding on what further action to take (if any).

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

• Staff should be clear on the principles underpinning their enforcement policy, and should be confident in identifying instances of non-compliance in which formal enforcement action would be proportionate.

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

Mrs C complained to the Commissioner for Ethical Standards in Public Life in Scotland (CESPLS) about a member of a public body. CESPLS decided not to investigate, and she complained to us about their handling of her complaint.

CESPLS have broad discretion under the Ethical Standards in Public Life etc. (Scotland) Act 2000 to decide whether, when and how to carry out an investigation.

We found that CESPLS' investigation procedures allowed them to carry out an initial assessment to decide if a complaint was relevant and admissible. In Mrs  C's case, CESPLS decided that her complaint was neither relevant nor admissible. CESPLS' communication with Mrs C explained their intentions and decisions clearly. We considered that CESPLS acted in line with their investigation procedures, and we did not uphold Mrs C's complaint.

Summary

Mr C contacted the commission to raise concerns about the care and treatment his late mother (Mrs A) received while in hospital. Mrs A had advanced dementia and was elderly and frail. Mr C complained that the commission did not appropriately investigate his concerns about the care and treatment his mother received and also the circumstances of her death. He also complained that they failed to handle his complaint appropriately.

The commission advised Mr C that they visited Mrs A on two occasions, consulted with various professionals involved in Mrs A's care, and reviewed her records. The commission confirmed that they did not have any grounds to investigate Mr C's concerns any further and they referred him to the NHS complaints procedure. Mr C then brought his complaint to us.

We found that the commission took the appropriate steps to investigate Mr C's concerns by visiting Mrs A on two occasions and making various enquiries. The commission considered that the NHS decisions relating to Mrs A's care were based on thorough assessments and, therefore, we considered that it was reasonable for the Commission to conclude they had insufficient grounds to investigate further. As the care and treatment was found to be reasonable, it was also appropriate for the commission to decide they had no grounds to investigate the circumstances of Mrs A's death. We did not uphold this part of Mr C's complaint.

However, we did find that the commission failed to respond to an email of complaint sent by Mr C and that they failed to refer Mr C to our office in the correspondence which they later said was their final response. We upheld this part of Mr C's complaint. We noted that the commission have since attended complaints handling training, and we therefore made no further recommendations.

Summary

Mr C wanted to progress from his current prison to the open estate (OE), with a view to getting parole and being released. His prison's risk management ream (RMT) decided that Mr C should first progress to the national top end (NTE - accommodation for low-supervision prisoners nearing the end of medium to long sentences). Mr C felt that the decision to not approve his application for the OE was unreasonable and he brought his complaint to us.

Mr C felt that he was ready for progression to the OE and that he was not given a chance to prove he had changed. We found that the RMT did not doubt the sincerity of Mr C's belief that he was ready. However, in considering all the information available to them, the RMT decided that Mr C would be progressed to the NTE where he would be given a chance to prove he had changed. The reasoning for this was that the NTE was a structured and supportive environment in which Mr C could practice appropriate coping and problem solving strategies. If successful in the NTE, Mr C would improve his chance of getting parole. We did not find evidence that the prison's actions in progressing Mr C to the NTE rather than the OE were unreasonable. Therefore, we did not uphold Mr C's complaint.

Summary

Mr C complained that the pornographic magazines stocked by the prion's supplier were aimed at heterosexual men. Mr C asked for access to equivalent homosexual pornographic magazines. The prison said that magazines were subject to the stock held by the supplier and that the supplier could not accommodate one-off requests. Mr C then submitted an Equality and Diversity Form and complained that this was not acknowledged by the prison.

We found that the prison had recently changed its policy to now allow prisoners to purchase pornographic magazines through the sundry purchases process. This decision was a matter of discretion for the Governor. Our office has no role in determining what policy the prison should have on this issue.

However, we were concerned that the prison had not carried out an Equality Impact Assessment before changing their policy on access to pornographic magazines. The prison did not have an objection to Mr C receiving homosexual pornographic magazines, however, their suggested possible solutions would not give Mr C the same access privileges that prisoners purchasing heterosexual pornographic magazines had.

We also found that the prison had failed to progress Mr C's Equality and Diversity Form. We noted that the purpose of these forms and who is responsible for processing them is not clear. Therefore, we upheld Mr C's complaints.

Recommendations

What we asked the organisation to do in this case:

• Following the review of the policy (recommended below) the prison service should review Mr C's specific situation.

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

• The prison service should now carry out an Equality Impact Assessment. Following that, they should review their policy in light of the Equality Impact Assessment.
• The prison service should review the use and purpose of the Equality and Diversity Form.

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

Mr C lives near the site of a former opencast mine where works were taking place. He accesses his home via a road running adjacent to the site. Mr C complained that the Scottish Environment Protection Agency (SEPA) failed to properly consider an application he made to them. He was also unhappy that SEPA had accepted the local authority's view that the works involved had permitted development status. Mr C said that, as a result of SEPA dealing incorrectly with the application he made to them, his access to his home was sometimes impeded by flood water.

We took environmental health advice. We found that, with regards to the application, the developer had made an explicit statement that planning consent for the site was not required, and that this statement had been confirmed by the local planning authority. We found that SEPA, as a licencing authority, had no capacity in the matter of flood risk that Mr C had complained about, and that this was a matter for the planning authority. As such, we did not uphold the complaint.

Mr C also complained that SEPA had not dealt reasonably with his complaint. We found that there had been delays in SEPA handling Mr C's complaint, and that it had not been dealt with in accordance with the stated complaints handling process. We upheld this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for the delay in responding to his complaint. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.

In relation to complaints handling, we recommended:

• Complaints should be dealt with in accordance with the stated 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

Ms C complained about the Scottish Qualifications Authority (SQA)'s marking of a handwritten exam script for her daughter (Miss A). Miss A's script was considered to be illegible when it was initially marked and this resulted in her not receiving the mark she had hoped for in that subject. Miss A had two places at universities that were conditional upon her receiving a higher award than she achieved in that subject. Miss A applied for a place at a university elsewhere and accepted that place the day after receiving her exam results. Miss A's school later submitted a marking review request for her, and she was awarded a higher grade. However, this was too late for her to take up one of the conditional university places she had previously been offered. Ms C complained that pre-certification quality assurance checks had not established an issue with Miss A's script and that the SQA had unreasonably failed to provide information at the time the results were issued to advise that a priority marking review could secure a conditional university place. Ms C was also concerned that the SQA had not handled her complaint reasonably.

After considering the available evidence, we did not uphold Ms C's complaint about quality assurance checking. We found that the initial marker followed the proper process when they considered that the script was illegible and escalated the matter appropriately. The script was then reviewed by a more senior assessor, who agreed that it was illegible. Although a higher award was given following the marking review request, we found that this was as a result of a subject specialist being asked to decipher the handwriting, and so we did not consider that the initial marker and the senior assessor had acted unreasonably.

We also did not uphold Ms C's complaint regarding the information available on priority marking reviews. We found evidence that this information on priority marking reviews was available from a number of different sources and was provided to all candidates ahead of the exam period starting. This included information that this process, rather than a standard marking review request, should be used to ensure deadlines for conditional university places were met.

We upheld Ms C 's concerns about how her complaint was handled as we found that the SQA's response did not address all of the key issues raised. The SQA acknowledged this in their response to our enquiries and we made two recommendations in this connection.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Ms C for failing to address all of her concerns in their response to her complaint. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.

In relation to complaints handling, we recommended:

• Complaint responses should address the issues raised, in line with 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

We investigated a complaint about the audit of a further education college and an associated report. We found that there had been a change in the scope of the audit on the basis of legal advice but that a record of this advice had not been maintained. We also found that after the scope of the audit changed, a person who was previously advised they would be interviewed was not advised that this would no longer go ahead. Consequently, they were unaware of the progress of the audit until they were sent a copy of the report the day before publication. Audit Scotland acknowledged the issues with communication and there being no record of the legal advice during their own consideration of the case. Audit Scotland concluded that the person should have been informed at an earlier stage as this would have allowed them the opportunity to submit evidence for consideration. Audit Scotland also advised that as a result of their review of this case, they were considering their approach in engaging with people who have a clear interest in their work but are no longer employed by the organisation being audited. Our investigation highlighted some issues with complaints handling and found that in relation to one point, information Audit Scotland provided was misleading. We did not identify any other failings in Audit Scotland's approach in this case. We made a number of recommendations to address the issues highlighted.

Recommendations

What we asked the organisation to do in this case:

Apologise for the failings highlighted in this investigation, including providing inaccurate information. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.

In relation to complaints handling, we recommended:

Complaints within correspondence should be identified and recorded as quickly as possible. If complaints are so closely linked to other concerns that they are to be dealt with together, the rationale should be explained to the complainant from the outset.

Complaint responses should be accurate and unambiguous.

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.