Scottish Government and Devolved Administration

Summary

Mr C complained that a reference in a Transport Scotland document to an external agency’s guidance was misleading. Transport Scotland had developed noise level standards for assessing whether properties near a railway line would qualify for noise mitigation, and a document about this had been issued on their behalf in which this reference was made. In responding to Mr C’s complaint, Transport Scotland explained that the agency's guidance was not exhaustive and was open to interpretation. However, Mr C told us that his complaint centred around the way Transport Scotland referred to the guidance, not the status of the guidance itself.

We reviewed the document and the reference that was the subject of Mr C’s complaint. We considered that Transport Scotland's reference did not make it clear enough that they were referring to the external agency's guidance as a whole, as opposed to this being an actual, standalone guideline from them. However, although we took this into account, there was no evidence to indicate that this specific reference was linked to their development of the noise criteria. After the disputed reference, the document went on to explain that the noise criteria were principally based on separate considerations and so we did not uphold Mr C’s complaint.

Summary

In 2013 Mr C was an objector to a planning application. As part of his objections he asked the council to consult with the Scottish Environment Protection Agency (SEPA) about flood risk at the development site. During the planning process, Mr C discovered that SEPA employees were the agents for the planning application. SEPA had provided advice on the flood risk assessment (FRA) during a previous planning application in 2011. This application had been withdrawn and a later application in 2012 had been rejected. The council approved the 2013 application, subject to conditions, and Mr C was unhappy with SEPA’s involvement, and their response to the council’s consultation.

Mr C complained that staff failed to declare an interest before they provided advice in 2011. Mr C said that SEPA had unreasonably removed an allowance for climate change from the FRA and had not referred to Scottish planning policy in their advice to the council, despite both of these being a requirement in SEPA's guidelines. He also complained that SEPA should have required an updated FRA because the position of the site access road had changed.

Our investigation found that SEPA’s assessment of the conflict of interest was a matter excluded by our governing legislation, and was a discretionary decision on their part. Our investigation was restricted to considering whether they had followed their procedures and if these were appropriate. SEPA had investigated and found that there was a perceived conflict of interest, but no evidence of an actual conflict. We found that their investigation had been thorough, and that the decision they reached was supported by the evidence they gathered and in line with their employee code of conduct.

We also found that SEPA had conducted a thorough investigation of the advice given, with separate reviews of both the planning advice and the flood risk and hydrology advice they had provided. However, we found that SEPA's published guidance said that an allowance for climate change in calculations of flood risk was a requirement, it didn't mention that SEPA might exercise discretion on this. We, therefore, upheld Mr C's complaint about the removal of the allowance. However, because SEPA had already recognised the confusion the guidance had caused, and said they would develop consolidated operational guidance, we did not find it necessary to make a recommendation.

We took the view that the new route of the access road was a matter for the council. SEPA had explained that the question of safe access/egress referred to pedestrian access/egress in the event of a flood, rather than to the road in isolation. We found that the council had considered this and had sought advice from the flood prevention officer. We also took the view that it was for SEPA to decide whether to refer to Scottish planning policy.

Summary

Mr C complained to us about a number of issues surrounding his application to sublet his croft, as he felt that the application had been handled inappropriately. However, Mr C contacted us before we completed our investigation and asked to withdraw his complaint. In light of Mr C's request, we did not take the matter forward and so did not reach a decision on his complaint.

Summary

Mr C complained to the Care Inspectorate about a care provider used by his mother. He was not satisfied that they investigated his complaint effectively, as he said they had not responded to all his concerns. He also had ongoing correspondence with them after they completed their initial investigation and complained that they did not handle this reasonably.

Our investigation found that the Care Inspectorate had thoroughly investigated the issues Mr C raised in his complaints, and responded to each of them. They did not respond to every individual query that he brought to them, but we considered that they took a reasonable approach to their handling of his complaints.

We did, however, consider that after their initial investigation they were not clear enough in their correspondence with Mr C. The should have provided him with consistent information about his complaint and what to do when he was still not satisfied with the outcome.

Recommendations

We recommended that the Care Inspectorate:

• remind staff to explain to complainants at the outset the remit of an investigation, and clarify the ability to respond to any questions or concerns raised; and
• apologise to Mr C for the lack of clarity in their decisions and in correspondence with him in relation to the information he requested.

Summary

Ms C is the head of care at a service providing education and care for young people with additional support needs. A council who placed young people there complained to the Care Inspectorate (the Inspectorate) about the service. The council was unhappy with the outcome of the Inspectorate's investigation, on the basis that a number of key individuals had not been interviewed, and requested a review. The Inspectorate received another complaint from a former service user at this time, which was investigated alongside the review. The outcome of the review was that all of the council's complaints were upheld. Most of the former service user's complaints were also upheld.

Ms C then complained to the Inspectorate about the way in which they handled both investigations. She felt that in their review the Inspectorate went beyond the remit of the original investigation, by interviewing staff not relevant to the council's original complaint, and that they took irrelevant information as fact. She was also dissatisfied that one of her colleagues was not interviewed, despite allegations being made against him. Ms C also said that when she was interviewed, the Inspectorate failed to complete their paperwork in line with their procedures. The Inspectorate partially upheld two of Ms C's complaints. They apologised for some inaccuracies and said that their outcome letters could have been clearer. Although they did not consider that this affected their overall findings, they amended both outcome letters. Ms C was unhappy with the way in which they investigated both her complaints and complained to us.

We considered that the Inspectorate had broad discretion about who they interviewed and the judgements they made on evidence obtained from their investigations. We considered that the individuals interviewed were appropriate and related to the matters under investigation. We also found no evidence to show that the Inspectorate did not consider information put forward by the service. We noted that they had intended to interview one of Ms C's colleagues, but were unable to do so. They had, however, obtained information about him from other staff and had examined incident reports. In terms of natural justice, we considered that it would have been reasonable to have sought the individual's views, and we drew this to the attention of the Inspectorate. However, it appeared that the information Ms C had given about the member of staff was in any case likely to have covered the relevant issues. We found that Ms C's statement had not been signed and dated by her or the interviewing officers, but also that Ms C had not specifically raised a concern about inaccuracies in it. We concluded that these shortcomings did not have a material effect on the outcomes the Inspectorate reached and that they had taken appropriate action.

Summary

Organisation C complained to the Commissioner about the actions of a councillor who chaired a public design competition initiated by the council. Two members of the organisation were council employees at the time of the competition, and the organisation said that there had been attempts to coerce them to inappropriately influence the competition process. The organisation also alleged the councillor had acted inappropriately in relation to the competition. The Commissioner investigated and made a finding that there had been no breach of the code of conduct for councillors (the code).

Organisation C complained to us that the decision was wrong because the Commissioner's view that there was a gap in the evidence for the first allegation and that the second allegation was out of jurisdiction did not justify the conclusions made. They were also concerned about how the evidence of whistleblowers was treated.

We did not uphold the first complaint, as the decisions outlined in the Commissioner’s letter were sufficient to justify his view that there had been no breach of the code. However, we were concerned that the note of the decision contained significant additional comments that seemed to make judgements on the actions of the councillor, and on the actions of the council itself. It was not clear what standards the Commissioner was using to judge this, as the actions of the council were clearly not covered by the code and, in the case of the actions of the councillor, the Commissioner had said they were not. We explained that this was confusing and made a recommendation on this point.

On the complaint about the way whistleblowing evidence had been handled, we found no evidence that the Commissioner had made errors in his assessment of what weight to put on the evidence or fact-finding. However, we were concerned that staff were named in a public report. This appeared to have been out of line with the Commissioner's standard practice and we were not persuaded by the explanations he gave us about this. The naming of witnesses in such an unusual way led to a perception that the witnesses had not been dealt with appropriately and, on this basis, we upheld this complaint and made a further recommendation.

Recommendations

We recommended that the Commissioner:

• reflects on the note on the Commissioner's decision, and the difficulties that the confusion and lack of clarity about the status of statements within it has caused; and
• develops a policy for the naming of individuals in future cases, to ensure consistency, which should take particular account of the position of individuals being asked to give evidence about their employers.

Summary

Ms C complained that the Care Inspectorate unreasonably delayed in dealing with her complaint, which was related to her late brother sustaining a serious injury whilst receiving 24-hour care. Ms C was unhappy that they did not explain why there had been a delay, and that they failed to explain what matters were outwith their jurisdiction and why.

We considered that taking a year to investigate Ms C's complaint was unreasonable even although the Care Inspectorate had experienced difficulties in agreeing all of the issues to be investigated. We upheld the complaint, although we did find that after this they conducted a thorough review of how they had handled Ms C's complaint, to ensure that they adopted a more cohesive and coordinated approach towards future complaints. They also identified a number of factors that impacted on the time taken to respond. Whilst the Care Inspectorate had acknowledged that there was a delay in progressing their investigation, we also found that Ms C was not told about this or the reasons for it until she contacted them. We were critical that it then took a further four months for them to clearly explain that they were unable to look into an aspect of her complaint.

Recommendations

We recommended that the Care Inspectorate:

• provide the Ombudsman with evidence that action has been taken to address the failings identified in the review they conducted;
• ensure timely investigations are conducted into complaints that have been agreed, whilst giving prompt consideration to those complaints that require further agreement prior to investigation;
• ensure that complainants are notified about delays and given clear reasons for the delays in a timely manner; and
• provide a written apology to Ms C for the failings identified.

Summary

Mr C and Mr D appealed to Scottish Ministers because the council had not determined their application for the removal of a planning condition on a property within the time set out for this. When the inquiry reporter did not grant consent for their application, Mr C and Mr D complained to us that the Directorate of Planning and Environmental Appeals (DPEA) had not acted reasonably in determining their appeal.

We took independent advice on this from one of our planning advisers, who said that there were procedural errors in the reporter's decision letter. These included not addressing under what section of the relevant legislation she was considering the appeal, and not warning Mr C and Mr D about an issue that had the potential to determine the case, but which had not been addressed before. The DPEA had accepted these failings when Mr C and Mr D complained to them. They had apologised, discussed the failings with the reporter concerned and also addressed these at a professional seminar with other reporters. On balance, we upheld the complaint but in view of the action the DPEA had already taken, we did not find it necessary to make any recommendations.

Summary

Mr C complained that the Scottish Children's Reporter Administration (SCRA) unreasonably restricted his contact with one of their offices, after some phone calls in which they felt Mr C was abusive and hostile towards staff. They wrote to him, explaining that he could only contact that office by email, although he could still phone their head office.

Our investigation found that although SCRA wrote to Mr C promptly to tell him about the restriction, there was no documentary evidence of his calls. There was only an internal email confirming the decision, and the recollection of a staff member. As there were no records, and as the staff member was not at work for a period afterwards, this had contributed to a delay in SCRA considering Mr C's complaint about the restriction.

SCRA are entitled to decide to restrict contact in appropriate circumstances, and we did not comment on their decision to do so in this case. In addition, we noted that phone contact was effectively restored some three months later when SCRA provided a named point of contact for Mr C. However, we were concerned that when they initially restricted Mr C's contact, they did not appear to make him aware that this decision could be reviewed or tell him the duration of the restriction, as their policy said they should. We upheld his complaint, as we considered that this, coupled with the lack of record-keeping and failure to document the reasoning behind the decision, meant that SCRA's administrative handling of the matter fell below a reasonable standard.

Recommendations

We recommended that the SCRA:

• ensure that people are advised of the review process and duration of any restriction of contact; and
• consider making notes of phone calls – particularly where restricting contact is a possibility – to ensure a clear, demonstrable audit trail.

Summary

Mrs C, who is an advocate for carers, complained to us on behalf of her client (Mrs A), who had complained to a care provider about the support provided to her late brother. Mrs A was unhappy with the care provider’s response, and complained to the Care Inspectorate about the provider. She was not happy with their response either, and asked Mrs C to complain to us that the Inspectorate unreasonably failed to follow their investigation procedure in dealing with her complaint.

We looked at the information provided by Mrs C and Mrs A, as well as the Inspectorate’s records of their investigation. Mrs A disagreed with the outcome of the investigation, but that was not evidence that they had done anything wrong. We found evidence of a well-planned and structured investigation, with specific questions asked and evidence obtained from Mrs A and the care provider. We also found that the Inspectorate considered the evidence but could not establish the facts that gave rise to Mrs A’s complaint. Having reviewed the investigation, and compared it with their procedures, we found no evidence that the Inspectorate failed to follow the procedures.