Scottish Government and Devolved Administration

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.

Summary

Mr C complained that he had been unreasonably denied unescorted day release from prison. We found that Mr C's community access plan which was in place at the time of his request did not allow for unescorted community access. Therefore, we concluded that the decision to reject his request was reasonable. We did not uphold the complaint.

Summary

Mrs C was in receipt of a public pension and the administration of her pension was taken over by the Scottish Public Pensions Agency (SPPA). On P60s issued to members at the end of the tax year, the figure in the red box marked 'Figures shown here should be used for your tax return, if you get one' showed only the amount paid since SPPA took over administration of the fund. Another figure on the P60 showed the amount paid by the previous pension administrators. SPPA were aware of this but did not inform members, as the correct tax was being deducted on a monthly basis and paid to HM Revenue and Customs (HMRC). Mrs C followed the instructions on the P60 and, as a result of having included the figure in the red box on her tax return, received a tax refund from HMRC. HMRC then investigated the matter as there were discrepancies between her tax return and the information received from SPPA. Mrs C had to repay the tax refund, with interest. She was unable to pay it back straight away, so interest accrued.

When she complained to SPPA, they said it was her responsibility to provide HMRC with the correct information about her income. Mrs C then complained to us that SPPA had unreasonably failed to provide her with clear guidance regarding the information displayed on her P60. We accepted that the P60 form itself could not be changed. However, we thought that SPPA could have included a covering letter highlighting the issue with the P60 for clarification. Given the clear instruction on the P60 to use the figure in the red box on her tax return, we thought it reasonable that Mrs C had done that. We considered it unreasonable for SPPA not to have provided clear guidance regarding the information displayed on the P60. We recommended that SPPA apologise and reimburse Mrs C for the interest she had been charged on the overpaid tax refund.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mrs C for providing confusing information on the P60, without any accompanying guidance.
• Reimburse Mrs C for the interest charged by HMRC on her overpaid tax refund, on receipt of proof of interest charges paid by her.

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.