Scottish Government and Devolved Administration

Summary

Mr C's complaint concerns an application he made to the government's Rural Payments and Inspections Division for payments under the Basic Payment Scheme (a European Union farming subsidy scheme). Mr C told us that he had inadvertently failed to apply for a top up he was entitled to because he found the government's guidance on applications to be misleading. He had attempted to appeal this decision but the government refused to consider his appeal, as they did not consider they had made a relevant decision under The Rural Payments (Appeals) (Scotland) Regulations 2015. In response to Mr C's complaint, the government accepted that the section of the guidance Mr C had referred to was insufficiently detailed, as it did not mention the top ups in question, but they did not consider it to be inaccurate or misleading.

On reviewing the guidance in place at the time Mr C made his application, we agreed with the government's position. The statement in question failed to mention the top ups, as Mr C had explained. However, this was only part of the introduction to what was extensive guidance on a complex system. When read in full, we considered the guidance clearly explained the top ups and how to apply for these.

We also considered the government's position on Mr C's appeal to be reasonable, although stressed that we could not definitively conclude that it was correct in law, as this was something that could only be confirmed by the courts. For this reason, we did not uphold these complaints.

Summary

Mr C raised a number concerns about the way that the Scottish Environment Protection Agency (SEPA) regulated a site. As part of the regulations, the site was required to maintain records of the waste materials that were being transferred to and used on the site. Mr C complained that SEPA had failed to ensure that the site maintained appropriate records in accordance with the regulations.

We found that SEPA had been aware of the record-keeping issues at a site inspection and it had been recorded that this should be followed up at the next inspection. We did not find evidence that this had happened at the next inspection and we were critical that SEPA did not take timely action. We also noted that SEPA had written to the site annually to request waste data. We found that when the site operator did not provide this information over a period of consecutive years, SEPA did not take any action to ensure it received the information requested. We upheld the complaint and made a recommendation.

Mr C was also unhappy about the way SEPA investigated his complaint that staff at the site were burying tree bark, which he said was not in accordance with the terms of the site's registration. In response to Mr C's complaint, SEPA said that the volume of buried bark was unlikely to be significant and said that it did not present a risk to health or the environment. For these reasons, SEPA did not consider that it would be appropriate to conduct intrusive site investigations to establish the volume of buried bark or to require the removal of any buried bark. We found that SEPA officers had visited the site after Mr C raised concern about this matter, and we were satisfied that SEPA took appropriate steps to investigate the concern. We did not uphold this complaint.

Recommendations

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

• Where SEPA becomes aware of an establishment's failure to meet the record-keeping obligations of a registered exemption, comply with regulations, and/ or a failure to provide waste returns as required, this should be followed up to ensure that the terms of the registered exemption are being met.

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 had a decree granted against him at court for a debt. The court sent a notification of this to the organisation that maintains the register of decrees. Mr C paid the debt, and was told that his name was taken off the register. However, some time later, it became apparent to Mr C that his name had not been taken off the register. Mr C complained to the registry organisation, who explained that his name had been entered on the register twice, as the court had sent them a duplicate record of the decree. Mr C complained that the Scottish Courts and Tribunals Service (SCTS) unreasonably sent a duplicate record to the registry organisation. He also complained about SCTS' handling of his complaint.

We looked at a copy of the information that the court sent to the registry organisation, which showed that SCTS had sent a duplicate record. We found that there was a responsibility on SCTS not to send a duplicate record, and so we upheld this aspect of Mr C's complaint.

Regarding complaints handling, we found that SCTS had mistakenly treated Mr C's complaint as if he were making a claim for financial compensation, rather than as a complaint about an administrative matter. SCTS acknowledged that they did not keep Mr C updated with the progress of his complaint, and that there had been a breakdown in communication between the court and SCTS headquarters. SCTS said that they would address this problem, and we asked them for evidence that they have done this. We upheld this part of Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Provide Mr C with a written apology for sending a duplicate record to the registry organisation. The apology should comply with SPSO guidelines on making an apology, available at www.spso.org.uk/leaflets-and-guidance.
• Provide Mr C with a written apology for failing to handle his complaint reasonably. This apology should comply with SPSO guidelines on making an apology, available at www.spso.org.uk/leaflets-and-guidance.

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 Registers of Scotland (RoS) had included part of his property on his neighbour's title deeds on the Land Register. This came to light when, a number of years later, Mr C tried to register his own title deeds on the Land Register. RoS rejected Mr C's application as it partially overlapped with the neighbouring property that was already on the Land Register. This meant that Mr C had to arrange for his lawyer to transfer part of the land registered in his neighbour's name to him, even although Mr C and his neighbour understood the land to have been Mr C's. This cost Mr C money and he did not think that this was fair.

RoS explained that, when Mr C's neighbour had historically registered his titles on the Land Register, the plan used included the piece of ground in question. At that time, no surrounding property had been registered on the Land Register and so nothing had alerted RoS to a possible issue. That only happened when Mr C tried to register his title several years later. As RoS had reflected the information that had been submitted to them historically, they said that they had not made an error and would not be able to reimburse the additional charges Mr C had incurred.

Our role was to consider whether the evidence pointed to an administrative failing by RoS. Our investigation confirmed that, in circumstances of this case, they would not have rejected Mr C's neighbour's historical application. It was also similarly clear that they would, however, reject Mr C's application and that it would be for him to instruct the conveyancing necessary to fix the situation. Whilst we recognised why Mr C felt that it was unfair that he had to bear the cost of the additional steps needed, the evidence indicated that this was not due to a fault on the part of RoS. We did not uphold this complaint.

Summary

Mr C contacted Revenue Scotland (RS) for clarification on whether Additional Dwelling Supplement (ADS) (a tax supplement on most purchases of additional residential properties in Scotland) would apply to him when purchasing a property. RS's initial response was that it did not apply. When Mr C was in the final stages of purchasing a property, he discovered that ADS did apply and that he would have to pay it. Mr C complained to us that RS failed to advise him of their opinion request process at the point of his first enquiry, that they failed to provide him with correct advice about the application of ADS in his situation, and that they failed to handle his complaint appropriately.

We found that RS mentioned the opinion request service to Mr C when they responded to his complaint, but that they did not inform him about it when he first contacted them asking for advice. Had they done so, he would have been able to request an opinion on the application of ADS at an earlier stage in the conveyancing procedure. We upheld this aspect of Mr C's complaint.

RS said that they do not provide advice on individual tax liability. However it was clear to us that, on this occasion, that RS had done this. Their response to Mr C's first enquiry clearly stated that ADS did not apply to him. This response to Mr C did not ask him for any further detail, did not indicate that Mr C could not rely on the accuracy of this response, did not ask him for any further detail, and did not signpost him to the opinion request service or refer him to his solicitors. As such, we found that RS had provided Mr C with inaccurate advice, and we upheld this aspect of his complaint.

We found that RS's response to Mr C's complaint did not adequately address the financial implications that their failure to give correct advice had had on him. Whilst organisations are entitled to reach their own conclusions on complaints following consideration of the available evidence, the conclusions should be reasonably supported by the evidence. In this case, we found that it was not reasonable for RS to conclude that the evidence did not support Mr C's complaint, at least in part. We upheld this aspect of Mr C's complaint.

We noted that RS had already taken action to ensure that the opinion request service is now referenced in all responses sent out, and that they had undertaken work with their staff to ensure that their responses to enquiries are now consistent with the position that they do not provide advice on individual tax liability. We also found that RS had apologised to Mr C more than once for their failings. As such, we did not make any further recommendations with regards to these aspects of Mr C's complaint.

RS told us that they have no discretion over whether to charge ADS, and that there is no legal mechanism under which they can waive or repay tax which is legally due. We accept this is the case. However, given that Mr C suffered financial detriment because of the inaccurate advice they provided to him, we made a recommendation to address this point.

Recommendations

What we asked the organisation to do in this case:

• Make a payment to Mr C as redress for the unanticipated financial loss he suffered as a result of their incorrect advice. The payment should be made by the date we have indicated. If payment is not made by that date, interest should be paid at the standard interest rate applied by the courts from that date to the date of payment.

In relation to complaints handling, we recommended:

• Complaint investigation decisions should be supported by, and make reference to, the available relevant evidence.

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 about Disclosure Scotland after they issued a disclosure certificate showing him to have a criminal conviction. He complained that Disclosure Scotland unreasonably associated his details with those of another person with a conviction.

Disclosure Scotland apologised and rectified the certificate, but the error had resulted in Mr C losing his job and struggling to find employment. They maintained that they had followed their procedures correctly and had not made any error in processing his application.

We found that Disclosure Scotland had correctly checked the information provided by Mr C against the Police National Computer, and that his details had been correctly associated with someone with a criminal conviction. Their disputes process is set out in the Police Act 1997, and requires applicants to provide fingerprints to dissociate themselves from the person with a conviction where there is a dispute regarding identity. Mr C refused to provide his fingerprints, which meant the dispute was unnecessarily protracted.

We found there had been no maladministration by Disclosure Scotland and did not uphold the complaints.

Summary

Ms C complained on behalf of Mrs A, who is the director of a company. Ms C complained about the way the Scottish Government had handled a complaint about wages from a former employee of the company. Whilst working for the company, the former employee had contacted the Government in relation to the underpayment of agricultural wages. As part of their statutory investigation function in relation to agricultural wages, the Government inspected the employee's payslips and calculated that there had been underpayments of wages relative to the legislation that fixed the minimum rates of pay. The company disputed this finding and corresponded with the Government over the following months. In concluding their consideration of the case, the Government maintained that the former employee had been underpaid, but decided it was not in the public interest to take enforcement action in this case.

Ms C identified arithmetical errors in some of the calculations, and noted that the method the Government had used to calculate the underpayment of overtime pay in this case was not consistent with the method they had used in a previous case. Ms C complained that the Government had not explained the inconsistency in the handling of the two cases, or why the method they now adopted was correct. In response to Ms C's complaint, the Government apologised for the inconsistency and also identified a number of service improvements to ensure that calculations were correct in the future. In response to our enquiries, the Government provided us with further comments on the inconsistency and an explanation in relation to the legislation that they had taken into account when reaching their decision. We were satisfied with the explanation provided to us. However, we were critical that the Government did not provide this explanation to the company in the course of their handling of the former employee's case. We upheld this aspect of the complaint.

Ms C also complained that the Government had not provided an explanation in relation to the method they had used to calculate the holiday pay in the former employee's case. We did not find evidence that the Government had provided a reasonable explanation to the company. We considered that they should have explained what legislation they had taken into account in reaching their method of calculation. We upheld this aspect of the complaint.

In the course of our investigation, we found a number of instances where the Government did not follow their complaints procedure. In view of this, we made a recommendation for learning and improvement.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Ms C and Mrs A for failing to provide reasonable explanations in relation to their calculations. This apology should comply with the SPSO guidelines on making an apology, available at www.spso.org.uk/leaflets-and-guidance.
• Provide Ms C with an explanation of the legislation that was taken into account when the decision was made that, for the purposes of calculating overtime, hours taken as holiday count towards total hours worked.

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

• Officers should provide full and informative explanations of their decisions, including, as appropriate, details of the legislation under which they have calculated underpayments.

In relation to complaints handling, we recommended:

• Complaints should be recognised effectively. They should be logged, acknowledged and responded to appropriately, and in accordance with the Government's 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

Mr C complained that he was not fully informed about the process for his court case to be heard in his absence. Mr C called the court to advise that his wife would be unable to attend the hearing due to ill health. He said that he was told that as paperwork had been submitted, the case could be heard on the basis of those papers in his absence. The paperwork had not actually been submitted via the correct legal process and therefore, the case was dismissed as there were no attendees and no paperwork to determine the case. Mr C complained to the court service about this, but was informed that they do not record phone calls and therefore did not have evidence of what was discussed when he phoned to advise his wife would not be in attendance. The court service were satisfied that Mr C had not followed the correct process and said it was appropriate that the case was dismissed.

Mr C asked us to investigate the case and we gathered additional information from the court. We noted that they provided content from a 'remarks' field on their case management system which summarised Mr C's call following the hearing and when he wanted to make a complaint. We established that these fields are not used frequently but that information could have been recorded when Mr C called prior to the hearing. We also established that while the court website explained about the process involved in this type of case, Mr C had had his paperwork returned from the court with no indication that he needed to have this served and re-submit. On balance, we concluded this was unreasonable as without any information about the process, it was unclear to Mr C that his paperwork had not been accepted by the court. The content of his call could not be clarified as it was not documented or recorded despite the court having the facility to do so. We upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr C for failing to fully inform him of the process to have his case heard. This apology should comply with SPSO guidance on making an apology, available at www.spso.org.uk/leaflets-and-guidance.

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

• Applicants should be notified that paperwork needs to be served before being re-submitted prior to the hearing, and that they may wish to seek legal advice in this regard.
• The 'remarks' field should be routinely used to document a brief summary of phone calls when calls relate to matters such as attendance at hearings or the submission of paperwork.

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 that the MySQA service provided to her daughter (Ms A) was unreasonable. This was because, in Mrs C's opinion, SQA should have emailed Ms A's amended results directly to her via the MySQA service, and updated Ms A's MySQA page on the date the amended results were issued.

We found that information published by SQA stated that, at the time of the main national release of results in early August, they would be issued directly to candidates. However, individual results amended after a priority marking review would be issued to schools in late August. The SQA information did not say that amended results would be issued directly to candidates, or that MySQA pages would be updated on the date the amended results were issued. It appeared Mrs C's complaint was based on her assumptions and preferences about what should happen, which were contrary to SQA's published information. It would not be reasonable to hold SQA responsible for Mrs C's assumptions, or reasonable to expect SQA to state what their service would not do, when they stated what their service would do. We did not uphold Mrs C's complaint.

Summary

Mr C complained that the Scottish Qualification Authority (SQA)'s handling of his complaint was unreasonable, as he felt there was a lack of transparency in their response to him.

Mr C’s son’s school were meant to put in place reasonable adjustments for Mr C's son to complete an exam, but failed to do so. The school submitted an exceptional circumstances consideration request to the SQA because of the exam circumstances their failure had created. The SQA considered the request and determined that Mr C’s son would not have passed the exam. Mr C complained to the SQA that they had given contradictory information to the school about the request process, that the SQA had not followed their own procedures in considering the request, and that they did not use appropriate academic evidence to assess his son's ability.

We found that the school were bound by the SQA’s procedures on submitting a request, and the procedures were clear that it was the school’s responsibility to submit to the SQA all available alternative academic evidence for consideration. The school failed to do this and submitted only selected evidence. The SQA could only assess Mr C's son’s ability based on the evidence provided by the school. We did not see any evidence that the SQA failed to follow their procedures. It would be unreasonable to hold the SQA responsible for the school’s failings, including the school’s failure to support Mr C’s son.

We concluded that, although the SQA’s response to Mr C’s complaint could have provided some additional information, such as the greater level of detail they provided to us in responding to our enquiry, the response was an accurate reflection of their responsibilities as set out in their policies.

Whilst we appreciated the impact that the school’s repeated failings had on Mr C’s son, and that Mr C was unhappy that the SQA were unable to remedy the situation created by the school, we did not find that the SQA’s handling of Mr C’s complaint was unreasonable. As such, we did not uphold the complaint.