Scottish Government and Devolved Administration

Summary
Ms C, a childminder, complained about the Care Inspectorate’s decision to uphold a complaint that she did not have a safety net on a trampoline used by the children in her care. She said that this had not been pointed out on previous inspections.

The law says that we cannot question discretionary decisions reached by an organisation where there is no evidence of administrative error. We found no evidence of administrative fault or service failure by the Care Inspectorate in reaching the decision to uphold this complaint. We were, therefore, unable to question the decision. We also considered that it was appropriate for officers from the Care Inspectorate to raise any legitimate concerns that came to their attention that had not been picked up on previous inspections.

Ms C also complained that the Care Inspectorate ignored documentation she provided from the parents of all the children she minded. This indicated that they had always been aware that the trampoline did not have a safety net and were still happy for their children to use it. We found that the Care Inspectorate had considered this documentation. It was for them to decide how much importance it should be given.

However, we found that the Care Inspectorate had failed to respond to all of the points in Ms C’s complaint about their handling of the matter. They had also delayed in responding to this letter. They had, however, since issued a response that we considered appropriate and had apologised for the omission, so we did not make any recommendations about this.

Summary
Mr C's son failed the essay component of his Higher history exam as the Scottish Qualifications Authority (SQA) deemed the title of his essay invalid. Mr C was unhappy as the school had advised his son on the title, and the school remained of the view that it was valid. Because of the difference of opinion between the SQA and the school, Mr C complained that the SQA failed to have adequate processes in place for communicating their guidelines to schools.

In responding to our enquiries, the SQA confirmed that they have processes in place for communicating their guidance. This includes detailed information on their website, annual update letters to schools and the availability of bespoke training services. In response to Mr C's concerns that there was no real-time validation process in place for essay titles, the SQA said that, due to the high number of candidates presenting to them, this was neither practical nor appropriate. We considered this reasonable and did not uphold the complaint.

Summary
Mr C, an MSP, complained on behalf of his constituent Mr A about the Scottish Government's (SG) Sea Eagle Management Scheme. He said that it failed to allow Mr A to adequately protect livestock from sea and/or golden eagles and to compensate for lost stock.

Our investigation found that the scheme (operated on behalf of the SG by Scottish Natural Heritage (SNH)) provides grants for measures to protect livestock from predation from sea eagles where there is known to be a nest site for a breeding pair of sea eagles within five kilometres of a croft, farm or other land used for livestock. Grants are paid in arrears for certain relevant work. Individuals or groups can make an application for funding and the money is paid on completion of the work. The scheme does not provide compensation for lost livestock.

Evidence provided by the SG showed that SNH did not have evidence of a nest site within qualifying distance of Mr A's croft. The nearest known nest site was some ten to eleven kilometres away. Mr A had suggested that there might be nests on platforms set up on private or Forestry Commission Scotland land nearer to Mr A's croft but SNH were not aware of any such sites. They had asked Mr A to provide them with information about any nests that he knew of but he did not appear to have done so.

SNH said that there were known to be two successfully breeding pairs of golden eagles within five kilometres of Mr A's croft but that the scheme did not cover these birds. SNH had offered to send a vet, at no cost to Mr A, to examine any carcasses to try to establish if the predation was from sea or golden eagles or other predators such as foxes or ravens but he had declined. They had also offered to send an officer to advise Mr A on the measures he could take to protect his livestock but again he declined. We found, therefore, that the SG had made reasonable efforts to assist Mr A and that they had acted appropriately. We did not find any evidence of maladministration or service failure.

We found that it was clear that the scheme does not provide compensation for lost livestock. It is for the SG to decide whether or not a compensation scheme should be available, and we are not an appeal body for their decisions. We were not able to reach a decision on this aspect of the complaint.

Summary
Mr C complained about the procedures adopted by Scottish Enterprise to investigate his complaints about what happened when, some time ago, a Scottish Enterprise regional office was involved with Mr C and his companies in an advisory capacity. He made serious allegations of conflict of interest against former employees of the regional office. Because of the nature of the allegations, a senior officer was appointed to investigate. The officer met with Mr C at the start of the investigation.

Over a year later, Mr C was provided with a copy of the investigator's report. Mr C complained that the written statement to the investigating officer was not reasonably considered during the investigation, that the final report did not acknowledge his views, and that the time taken to investigate and to provide a final response was unreasonable. We did not uphold Mr C's first complaint as we found no evidence that his statement was not reasonably considered. We upheld the other complaints, however, as we found that Mr C was not given the opportunity to comment on issues of fact before the end of the investigation, and that the length of time taken was unreasonable.

Recommendation
We recommended that Scottish Enterprise:
• seek to agree with Mr C a set of points he believes to be outstanding and to answer those points within a timescale of three months

Summary
Mr C complained about Scottish Natural Heritage's (SNH) handling of an application for funding and a license to disturb a protected species on moorland. SNH were a partner in the moorland development project, which aimed to increase the numbers of red grouse on the moor, allowing grouse shooting whilst conserving the local hen harrier population. Hen harriers are a protected species and, as such, the moor is designated as a Special Protection Area (SPA).

Mr C complained that SNH inappropriately granted funding and licenses to the project without ensuring that a Habitat Regulation Appraisal (HRA) was carried out. He considered that this would result in disturbance to the hen harriers, contrary to the European Union Habitats Directive, which states that significant disturbance to protected species must be avoided.

We accepted SNH's position that an HRA was not required for the project as a whole, as the project had no statutory basis. However, certain activities proposed as part of the project required a license to disturb the protected hen harriers. As such, an Appropriate Assessment (formal assessment of the impacts of a plan or project in a protected or conservation area) was required under the HRA process before the license could be approved.

SNH told us that consideration was given to the impact that the project would have on the hen harriers before the license was issued. However, they failed to document this in a formal Appropriate Assessment. This was completed after Mr C complained.

Although we were satisfied that the decision to issue the license was not unreasonable or contrary to regulations or legislation, we did not consider it enough just to consider the potential impact on a protected species. Given SNH's position as a partner in the project, we took the view that they should have been able to demonstrate that the potential impact was properly considered through completion of the Appropriate Assessment.

With regard to the potential disturbance to the local hen harrier population, we did not find that the Habitats Regulations prohibited activities that may disturb. Rather, consent can be given if it can be shown that the integrity of the protected site will be maintained following Appropriate Assessment and consideration of the impact on the site. One of the project's aims was to establish whether certain activities would have a detrimental impact on the hen harrier population. As such, the extent of any impact could not be known until the experiment was carried out. Based on the evidence we saw, we were satisfied that SNH had a process of monitoring in place to record the impact on the hen harriers. We also found that they reached their conclusion that the integrity of the protected site would be maintained after assessing appropriate factors and with reference to existing scientific research.

Summary
Mr C rears cattle. He complained about the actions of an officer working on behalf of the Animal Health and Veterinary Laboratories Agency (AHVLA) (an executive agency of the Department for Environment, Food and Rural Affairs, working partly on behalf of the Scottish Government). He also complained about the AHVLA's handling of his complaints.

Mr C complained that the officer had been aware of the location of some of his cattle, yet had written asking for clarification of their whereabouts. Mr C said that one of the officer's colleagues had told the officer where the cattle were. We did not , however, uphold this complaint as there was no evidence available to suggest that the officer was in fact aware of the location of the cattle. Although there appeared to have been some misunderstanding during the correspondence between the officer and Mr C, it was clear that the movements of the cattle were complex and we considered it reasonable for the officer to seek clarification of their whereabouts.

Mr C also complained that the officer had unreasonably requested that Mr C present his cattle for testing, when the officer had not done anything about the situation for over two years. Our investigation established there were a number of sound reasons why he had not made contact with Mr C during that time. These included that Mr C had made a complaint about the officer to the Royal College of Veterinary Surgeons; there were ongoing criminal proceedings against Mr C in relation to the Tuberculosis Order 2007; and the Rural Payments and Inspections Directorate were trying to complete inspections of the cattle. The officer had, therefore, been advised to await the conclusion of all of these before contacting Mr C again about tuberculosis testing, which is why the delay occurred. On that basis we did not uphold this complaint.

We upheld Mr C's complaint about the AHVLA's complaints handling, as we found that they did not respond fully to all aspects of Mr C's complaint letter.

Recommendation
We recommended that Scottish Government:
• review their complaints handling procedure to ensure complainants receive full responses to complaints.

Summary
Mr C and Mr B, who are both crofters, applied to the Crofters Commission (now the Crofting Commission) to apportion four areas in two common grazings. (Apportionment is where the commission may allow an individual who holds a right in common grazing land to have exclusive use of an area of the grazing.)

They complained that the commission delayed in determining the applications; used inadequate procedures and provided misleading advice; failed to take appropriate account of a conflict of interest on the part of one of the grazings committee; breached their Code of Conduct by commissioning a report on the matter from Mr C's line manager; failed to take action on an assurance they gave about township accounting; and failed to respond appropriately to Mr C's complaints.

Our investigation found that there were avoidable delays in processing the applications, but as the chief executive had apologised directly to Mr B for this, we made no recommendations. We did not uphold Mr C's other complaints.

We found that procedures in apportionment applications differ from other crofting applications, and a local public meeting had been followed by a properly convened meeting of Commissioners. The public meeting allowed dissenting members of the grazings committee to put their views forward and the matter of a conflict of interest in the commissioning of the report was a matter for Mr C's employer. There was conflicting information about whether the assurance about township accounting had been kept and, in the absence of relevant evidence, we were unable to determine what actually happened, so could not uphold the complaint. We found that Mr C's complaint was dealt with appropriately.

Summary
After she was admitted to a private care home, Mr C had concerns about his mother's care and treatment there. He complained to the care home and then to the Care Commission (this organisation is now called the Care Inspectorate). The Care Commission responded to six separate complaints over an eight-month period. They upheld most of them, and made recommendations for improvement.

While Mr C awaited the outcome of the last of the six complaints investigated by the Care Commission the care home was the subject of a themed inspection by Care Commission officers (as part of that body's regulatory function).

Mr C had taken issue with the Care Commission's previous overall grading of the care home as ‘good’. He believed that this grading should not have been maintained after a more recent inspection and sought to have this investigated as a complaint. However, the Care Commission and then the Care Inspectorate told him that this could not be dealt with through the complaints procedure. When Mr C persisted, the Care Inspectorate told him that they intended to apply to him part of that procedure relating to persistent and vexatious complainants.

Mr C then complained to the SPSO that this procedure was incorrectly applied. We did not uphold this, however, as we found that Mr C had inappropriately persisted in pressing the matter as a complaint, despite having had it clearly explained to him that the complaints procedures excluded complaints about the inspection process.

Summary
Mr C complained to the Crown Office and Procurator Fiscal Service (COPFS) after a charge of assault against him was dropped during a trial. He was unhappy with COPFS's response, and made a complaint to us about the way his complaint was handled.

We upheld one of Mr C's complaints relating to delay at Stage 3 of the complaints process. However, we took a number of matters into account – COPFS' explanation for this, the fact that Mr C had not written to the appropriate person identified in the complaints procedure nor requested escalation of his complaint and that COPFS had apologised to Mr C. We, therefore, made no recommendations.
 

Summary
Mr C's daughter was a candidate for the SQA Higher physics examination in May 2010. Previously, she obtained a B grade pass in the preliminary school Higher physics examination earlier that year and had targeted a B grade pass in the final Higher examination.

Mr C’s daughter attained a C grade pass in the final Higher examination in May. The school submitted an appeal on behalf of Mr C’s daughter and another student in August 2010.

Both appeals were dismissed and both students' results stood. In returning the appeals, the SQA provided two reasons for their decision, both relating to the validity of the school’s preliminary examination.

Mr C submitted subsequent complaints against the SQA and the council (as education authority). He complained that the SQA had failed to provide a reasonable explanation of why they considered the school's preliminary examination was not sufficiently robust to support a successful appeal.

We did not uphold Mr C’s complaint. The SQA had provided feedback to the school on why they had dismissed the appeals.