Scottish Government and Devolved Administration

Summary

Mr C said that Transport Scotland had not properly investigated his complaint about a rail provider. Mr C originally complained to a rail provider when a member of station staff refused to issue him with a discounted ticket that he was entitled to under the terms and conditions of a new deal railcard. Mr C said he felt bullied and humiliated by the member of staff. Dissatisfied with the response to his complaint, Mr C escalated it to Transport Scotland who had responsibility for the franchise agreement with the rail company. He said that Transport Scotland unreasonably concluded that the rail company had properly investigated his complaints. He said that they had accepted, without reasonable investigation, the rail provider's claims that he had changed his route when in fact his start and destination stations had remained unchanged throughout and that there were suitable available alternatives for the purchase of discounted tickets. He also said that Transport Scotland had failed to establish whether his complaint had been escalated to the director of the rail provider.

We concluded, however, that Mr C's complaints had been reasonably investigated. Transport Scotland had questioned the rail provider when Mr C disputed the statements they made about the purchase of tickets. They had also investigated, as far as it was possible to do so, whether Mr C's complaint had been escalated to the director. They did not investigate the matter of Mr C having changed his destination stations, because Mr C had never made this point clearly to them. In terms of whether the rail provider had reasonably investigated Mr C's complaint, we concluded Transport Scotland had considered the matter appropriately. They had established how the complaint had been responded to and what actions had been taken to prevent recurrence. We could not find any fault or omission in the investigation process that would lead us to question Transport Scotland's decision.

Summary

Mr C complained that the Police Complaints Commissioner for Scotland (PCCS) (now the Police Investigations & Review Commissioner (PIRC)) unreasonably directed a police force not to deal with further correspondence from him in respect of his complaint. In addition, he believes that before the PCCS report on his case was issued, the Commissioner himself failed to personally read what Mr C believes to be the most important piece of evidence in relation to his case. He also complained that the PCCS unreasonably imposed their unacceptable actions policy on him.

We found that the decision of the PCCS to direct the police not to deal with any further correspondence from Mr C was a discretionary one granted to the PCCS under the terms of their legislation. The only way to challenge this decision was through judicial review. The information Mr C thought the Commissioner himself should have read was a short police report. On reviewing this issue, we found that the PCCS considered Mr C's complaint under their scheme of delegation and, as such, it was entirely appropriate that the investigation process was delegated to the Commissioner's staff. We found no evidence to suggest that the Commissioner was under any duty to personally review all aspects of the evidence. Finally we looked to see whether the PCCS decision to impose restrictions on Mr C's contact with their office, under their unacceptable actions policy, was reasonable. We found that there was no evidence to suggest that these restrictions were imposed incorrectly. Our investigation found no evidence to support Mr C's case and we did not uphold his complaints. We did, however, make a recommendation relating to their contact with Mr C, when this is reviewed.

Recommendations

We recommended that PIRC:

• when next reviewing their decision to restrict Mr C's contact with them, should write telling him when they will be carrying out the review, giving him an opportunity to comment; and on completion of the review, should write to Mr C setting out the reasons for their decision, when the decision will be reviewed and, if appropriate, the period to which any restriction relates.

Summary

Mr C complained on behalf of a local preservation trust about the actions of the Directorate for Planning and Environmental Appeals (DPEA). The trust had objected to an application to the local council for outline planning consent for a residential development. A planning officer recommended that the application should be granted conditional approval, but the application was refused. The developer appealed this decision to the DPEA. The council had told the DPEA that, should the DPEA's reporter be minded to grant consent, the conditions recommended by the council’s planning officer should be taken into account. Unfortunately, there was an error in the council officer’s report with reference to access to an adjoining field, in which the word ‘east’ had replaced ‘west’. The DPEA reporter visited the site and issued a letter with his intentions and proposed conditions. This included an incorrect reference to access being to the east. Six months later, after a legal agreement had been concluded, the DPEA reporter issued his decision granting conditional approval to the development. His decision repeated the error.

The error was brought to the DPEA’s attention more than six weeks after the appeal decision letter was issued. It was discussed with the reporter, who accepted the error, and sent a letter of correction to interested parties including Mr C. The letter confirmed that there had been a typographical error, substituted what the condition should have stated, and apologised for any confusion this might have caused. Mr C and an associate then pursued this with the DPEA over two years. Mr C first complained that it was inappropriate for the DPEA to have issued the letter of correction; and also that, when requested, they failed to notify all parties to the appeal that the correction letter had no legal status and did not change the original decision.

We did not uphold Mr C's complaints. Our investigation found that, although recent planning legislation has introduced procedures to correct errors made by or on behalf of Scottish Ministers, this was not in place at the time of these events. The DPEA did not regard the error as significant, and on that basis issued the letter of correction. We found that issuing the letter was a proportionate and timely response and was in accordance with DPEA practice. On the second complaint, we found that such decisions can be referred to the Court of Session within six weeks. However, as the error was pointed out to the DPEA more than six weeks after the decision, that course of action was no longer available. We took the view that in the circumstances the legal status of the correction letter was a matter for those who received it and that there was no need for the DPEA to issue a further letter.

Summary

Mrs C's mother purchased parts of a property a few weeks before her death. The application to transfer title was, however, incorrectly submitted and Mrs C's mother was registered as proprietor of the whole property, rather than only parts of it. Mrs C's mother's solicitors realised the error when they received the Land Certificate, by which point Mrs C's mother had passed away. They asked Registers of Scotland (RoS) how this could be corrected. RoS explained that this would be a two-part process. Firstly the title would be restored to the former proprietor and then, on receipt of the correct forms and information, the relevant parts would be registered to Mrs C's late mother. The first part was undertaken by RoS, who then awaited receipt of the correct forms and information. Although they sent several reminders, RoS never received the these, so title to the property has remained with the previous proprietor.

Mrs C complained to RoS that one of their officers inaccurately said that the reversion of title to the previous proprietor had been done in conjunction with Mrs C's mother's solicitors. RoS explained that they had begun the two-part process to correct the incorrect registration as a direct response to a request from Mrs C's mother's solicitors. Mrs C was dissatisfied with this response and raised her complaints with us.

In our investigation we carefully considered this complaint and the relevant papers. We decided that the response had made it clear that the actions to begin the process of altering the title deeds had been a direct response to the solicitors' request for information about this process, and that RoS had the right to take this forward. We did not uphold the complaint.

Summary

Mr C complained that Highlands and Islands Enterprise (HIE) unreasonably stated that they had an interest in an area of amenity land they were considering selling when, in his opinion, this was not the case. He was of the view that they claimed this in order to put the land on the open market and increase the value. He also felt that HIE unreasonably sold the land to a developer and so failed to protect the future amenity value of the land for the community.

We found that there was interest in the land from other parties and, as a result, HIE were correct in what they said. We also noted that the designation of land is a responsibility of the council and not HIE. We found that a decision not to attempt to try and control future use of the land through a no-development clause in the sale agreements was reasonable. As the actions take by HIE were reasonable, and as we found no evidence of administrative failure in the way they dealt with this matter, we did not uphold Mr C's complaint.

Summary

Mr C phoned Forestry Commission Scotland (FCS) in June 2007 to complain about unauthorised tree felling. He complained that, at the time, the officer concerned failed to make appropriate follow-up enquiries, and that, although correct information eventually became available in August 2007, the officer failed to report the matter to the procurator fiscal.

Our investigation found that when the officer spoke to the tree fellers, he was led to believe that they were working on behalf of Scottish Power. He understood that they were working within their remit and so a tree felling licence was not necessary.

The same officer later became involved in the investigation of a further incident and, in November 2007, Scottish Power confirmed that they had not been engaged in any tree felling in June 2007. (Mr C had told us that he believed that this information in fact came to light in August 2007. Our investigation into the documentary evidence, however, revealed that an email sent from Scottish Power included a date that had been written in American formatting - ie with the month preceding the day.) The officer discussed the changed circumstances with his manager, and decided that, due to the passage of time and the fact that they were unlikely to be able to establish the amount of wood involved, they should instead focus on pursuing the most recent allegation of unauthorised felling. This more recent incident was ultimately reported to the procurator fiscal.

Ultimately, Mr C was unhappy with FCS's decision. Taking into account the information provided by both parties and the relevant legislation, we concluded that this was a discretionary decision that FCS was entitled to take. We cannot look at such decisions if there is no evidence that something has gone wrong when taking them and, as we found no evidence of failure in that respect, we did not uphold this complaint.

Summary

Mr C is the manager of a facility catering for young people which is subject to regular inspection, initially by the Care Commission and, since 1 April 2011, by the Care Inspectorate. His complaint related to an incident that occurred during an inspection by Care Commission officers when he queried the lead officer's authorisation to inspect documents relating to one of his employees. As a result of the inspection, Mr C's facility was given what he considered to be ridiculously low gradings. Mr C complained that the Care Commission's inspection and subsequent report into his facility had been inadequate and that the Care Commission and Care Inspectorate failed to adequately handle his complaints.

Our investigation found that the Care Commission had followed their normal inspection process and the process of sharing their draft inspection report. We found no evidence of inadequacy in the handling of Mr C's complaint by the Care Commission or the review of complaint handling by the Care Inspectorate.

Summary

Mr C was owed a significant sum of money by a builder who had been declared bankrupt. In June 2005, the builder moved assets into his mother's name. The Office of the Accountant in Bankruptcy (AiB) successfully challenged this in court and raised an action against the builder. Mr C complained about the length of time that it took for the AiB to recover money from the builder and to pay creditors.

We found that the sequestration of the builder's estate was complex and was always going to take time. Ultimately it took more than seven years to pay creditors, and we did not consider this reasonable. Whilst there is no target timescale for the sequestration process and the relevant legislation allows unlimited extensions, our investigation found that the AiB themselves had caused at least fifteen months' worth of avoidable delays. We considered that the individual actions taken to sequestrate the estate were reasonable, but they were carried out in a very linear way and we felt that some tasks could have been completed concurrently rather than waiting for another task to be completed first. Furthermore, midway through the process the builder questioned the amount that Mr C was claiming. This led to the AiB reinvestigating the claim over several months in anticipation of a possible formal challenge. We considered that challenges should be anticipated as a matter of course and that the additional investigation should have either taken place at the start of the claim process, or upon submission of a formal challenge from the debtor.

Recommendations

We recommended that the AiB:

• apologise to Mr C for the delays to the completion of his claim;
• review Mr C's claim and their procedures with a view to identifying tasks that can be completed concurrently, or other opportunities to minimise delays to the completion of claims; and
• consider conducting a review of how and when they investigate creditors' claims in anticipation of challenges from debtors.

Summary

Mrs C is a landowner who owns a stretch of river close to a fish farm. She complained that when Highlands and Islands Enterprise (HIE) approved a grant for expansion of the fish farm, they did so without conducting sufficiently robust environmental checks and did not reasonably investigate the probable environmental impact.

Our investigation, which included taking independent advice from one of our advisers, found that HIE had used a reasonable scrutiny process and had applied it properly. We did, however, find that some of the information about how the fish farm was complying with the environmental regulations was supplied by the applicants themselves. Our adviser said that, while this complied with the process in place at the time, it would be more robust if such information was obtained from a third party, such as the relevant regulatory body. In this case the Scottish Environment Protection Agency (SEPA) was the regulatory body involved. The fish farm had provided HIE with copies of licences issued by SEPA and HIE had made some further enquiries to ensure that the licences were current and that SEPA were working with the fish farm to ensure on-going compliance. HIE have since reviewed their procedures and are in the process of issuing revised guidance to staff. The new procedures mean that in future any information on compliance with environmental regulations and requirements will be obtained from the regulatory body rather than the applicant.

Overall, we were satisfied that it is not HIE's role to monitor or police compliance. In this case the application documentation was correctly scrutinised, assessed and evaluated, and we also satisfied that in future the system will be even more robust.

Summary

Mr C was cited as a witness in a trial. He attended court on that date, only to be told that his attendance was not necessary as the accused had pled guilty. Mr C complained to the Crown Office and Procurator Fiscal Service (COPFS) that, because he was not told that his attendance was no longer required, he had suffered financial loss and unnecessary upset, anxiety and inconvenience.

COPFS explained that this had happened because there were administrative errors in their process for advising witnesses that they need not attend court. They apologised to Mr C for this and invited him to submit an expenses claim, which they paid as they would have, had the trial gone ahead.

In relation to the upset and inconvenience caused, COPFS advised Mr C that such concerns are addressed through witness support services such as Victim Support Scotland and their witness service, but that they do not provide compensation for upset, anxiety or inconvenience. Given that COPFS accepted that administrative errors on their part had led to Mr C attending court unnecessarily we upheld his complaint, but as they had already taken action to address what had gone wrong, we did not find it necessary to make any recommendations.