The Local Government Act 2000 introduced a new regime:

• a new model code of conduct for members;

• each council must adopt its own code (the model code as it stands, or
  with additions); and

• the Standards Board for England will consider complaints about breaches
  of the code.

The model code was approved by Parliament on 27 November 2001. Councils had six months from that date to adopt their code. Until that point the existing National Code of Local Government Conduct continued to apply.

So the starting date for complaints to the Standards Board varied depending on the area. Complaints cannot be retrospective. They must be about an action allegedly in breach of the Code after the council has adopted it.

The jurisdiction of the Local Government Ombudsman is not changed. So some people may, and perhaps in some cases should, make a complaint both to the Standards Board and to the Ombudsman. Much will depend on what the aggrieved person wants. If the desired outcome is a sanction against the offending member, the complaint must go to the Board. If there is a claim of personal injustice and a remedy is sought, the complaint must go to the Ombudsman (because the Board cannot give a remedy to the individual).

A strong working relationship is seen by the Board and the Ombudsman as essential. A Memorandum of Understanding to lay the foundation for such co-operation has been agreed. The text is produced below.

See the Standards Board's website at www.standardsboard.co.uk

MEMORANDUM OF UNDERSTANDING

between

COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND AND THE STANDARDS BOARD FOR ENGLAND

1. INTRODUCTION

The work and areas of responsibility of the Commission for Local Administration in England and the Standards Board for England (the Standards Board) are related. So they need to cooperate in order to ensure that their respective roles can be fulfilled effectively and efficiently. This Memorandum of Understanding has been agreed by the Commission and the Standards Board to lay the foundation for such cooperation.

More particularly, the Memorandum sets out the respective roles and responsibilities of the parties in order to:

• Provide guidance to staff about the nature of complaints which will be of
  interest to each party, how such complaints should be handled and the advice
  that should be given to complainants;

• Assist members of the public to identify the appropriate body to which to
  make a complaint;

• Assist advice agencies to direct complainants to the appropriate body; and,

• Be available for local authorities and members of those authorities for their information.

2. DEFINITIONS

Commission for Local Administration in England

The Commission as established under the Local Government Act 1974 and responsible for the Local Government Ombudsman service.

Local Government Ombudsman

A Local Commissioner as defined in the Local Government Act 1974.

Standards Board for England

The Board as established under the Local Government Act 2000.

Parties

Means the Commission for Local Administration in England, the Local Government Ombudsmen and the Standards Board for England.

3. STATUTORY FRAMEWORK

3.1 Roles

Commission for Local Administration

The Commission was set up under the Local Government Act 1974 and is responsible for the Local Government Ombudsman service. There are three Ombudsmen who investigate complaints from the public of injustice suffered as a consequence of maladministration by a local authority . The Ombudsmen can recommend a suitable remedy (which can include financial compensation) for complainants if they have been caused injustice as a result of maladministration by an authority. The Ombudsmen cannot recommend any sanctions against a member who has breached a code of conduct.

Standards Board for England

The Standards Board was set up under the Local Government Act 2000 to investigate complaints of breaches by members and co-opted members of their authority's code of conduct. Investigations are the responsibility of Ethical Standards Officers (ESOs), who are employees of the Board, but are independent in their investigating role. After investigation, an ESO can refer a matter to an Adjudication Panel. The Panel can impose sanctions, including up to a five year disqualification from office, for members who are found to have breached a local authority's code of conduct. However, neither the Standards Board nor the Adjudication Panel can provide or recommend a remedy for a complainant.

3.2 Who Can Make a Complaint

Anyone can make a complaint to the Standards Board, not just members of the public. Moreover, members of an authority will be required to make a complaint if they become aware of a breach of a code of conduct by another member of the authority. Complaints, however, cannot be retrospective, ie cannot be made about the conduct of a member which occurred before the authority adopted its code of conduct.

A complaint to the Ombudsman may only be made by, or on behalf of, a member of the public or a body of persons other than a local authority or other public service body. Members of the authority concerned cannot normally make a complaint to the Ombudsman. Members may only do so if acting as members of the public, eg in relation to matters affecting them as tenants of the authority.

Throughout this Memorandum those persons/bodies able to make complaints are defined as 'complainants'.

3.3 Coverage of Agreement

This Memorandum concerns all dealings between the parties in respect of the following English authorities:

• County councils;
• District councils;
• Borough councils;
• City councils;
• The Greater London Authority;
• Fire authorities;
• The Common Council of the City of London;
• The Council of the Isles of Scilly;
• Police authorities;
• Joint authorities;
• The Broads authority; and,
• National Park authorities.

There are some authorities where one party has jurisdiction but the other does not. A significant example is town and parish councils. These are not within the jurisdiction of the Ombudsman so they are not listed here.

3.4 Changes due to the Local Government Act 2000

The jurisdiction of the Ombudsman is not changed by the Local Government Act 2000. However, one of the duties of an Ombudsman will be removed by the Act's provisions. That is the duty, if finding maladministration because of a breach of the previous National Code of Local Government Conduct, to name the member concerned in his or her report, unless satisfied that it would be unjust to do so. This provision ceased to have effect in respect of members when authorities adopt their individual codes of conduct in accordance with section 51 of the 2000 Act.

3.5 Disclosure of Information

Section 67 of the Local Government Act 2000 provides for an ESO and an Ombudsman to consult if either of them believes that a complaint is likely to be of interest to the other party. In particular, the Act provides a dispensation to allow the Standards Board to disclose information to the Ombudsman . Similarly, the 2000 Act amends the Local Government Act 1974 to remove restrictions that would otherwise prevent the disclosure of information to the Standards Board by the Ombudsman . Both the Ombudsman and the Standards Board are therefore able to share information where this would allow the other to fulfil their function. However, there is no compulsion under legislation for either party to do so.

3.6 Summary of Jurisdictions

The basic jurisdictions of the parties are as follows.

4. LIAISON AND COOPERATION

Neither of the Board nor the Ombudsman has a statutory obligation to consult or cooperate with the other. Further, neither party needs to rely on the findings of the other in order to consider a complaint. However, since the work of the parties is related, it is appropriate for measures to be taken to ensure that both parties deal with related complaints in an appropriate, effective and efficient manner.

It is important to note that each party intends to deal with complaints as speedily as possible. It is unlikely that there will be many circumstances, though there will be some, where it is sensible for one party to delay investigation of a complaint pending the outcome of investigation by the other party. The question of appropriate timing should always be considered and, if it is decided to delay investigation, the complainant should be informed.

Complaints may have some common features, without being exactly the same. For example, a complaint to the Ombudsman may allege administrative fault in a number of respects, only one of which is an allegation of a breach of the authority's code of conduct by a member.

Each party will need to consider a complaint made to it in the normal way in accordance with its own jurisdiction and procedures. This may result in an early decision by one or other party.

For example, the Standards Board may decide at an early stage that a complaint should not be investigated.

As far as the Ombudsman is concerned there could be an early decision for example:

• If the authority has not had an adequate opportunity to consider the complaint
  and the Ombudsman determines the complaint as 'premature' and refers it
  to the authority for consideration;

• If the Ombudsman considers that, even if there was an administrative fault
  there was no injustice to the person complaining and therefore exercises
  discretion not to investigate the complaint; or,

• If the authority takes early action to provide a 'local settlement' which the Ombudsman considers a satisfactory resolution of the complaint.

But inevitably there will be some complaints made to both parties that require extensive consideration by both.

4.1 Principles

In dealing with complaints the parties agree to apply the following principles:

• Each party will have due regard to the work of the other;

• Each party will not impede the work of the other;

• Each party has the right to commission an investigation independently of the other; and,

• Each party will disclose information where appropriate to assist the other to
  carry out its functions.

4.2 Types of Complaints

Seven types of complaint can be identified as a focus for this Memorandum. These are:

• Those that are only for the Standards Board;

• Those that are only for the Ombudsman;

• Those that are made to the wrong party;

• Those that are made to one party, but could also be made to the other;

• Those that are made to both parties;

• Those where the position is unclear; and,

• Those that are for neither party.

4.3 How Complaints are Handled

Complaints within the Standards Board's jurisdiction only

The Standards Board will follow its own procedures where it receives complaints that clearly fall solely within its own jurisdiction, eg complaints relating to members of town or parish councils.

Complaints within the Ombudsman's jurisdiction only

The Ombudsmen will follow their normal procedures where they receive a complaint that clearly falls solely within their jurisdiction, eg complaints that members have acted with maladministration, but not in breach of a code of conduct.

Complaints that are made to the wrong party

The Standards Board and the Ombudsmen will have due regard to the wishes of the complainant when they receive complaints that should be made to the other party. Where either party receives complaints that should have been made to the other party, complainants will be advised that such complaints are outside jurisdiction, but that they could make a complaint to the other party.

Complaints made to one party, but could also be made to the other

The Standards Board and the Ombudsmen will have due regard to the wishes of the complainant when complaints are received by one body, but could also be made to the other. Where either party receives complaints that are within jurisdiction but could also be made to the other party, complainants will be advised that they can also make a complaint to the other party.

Complaints sent to both parties

The Ombudsmen and ESOs will liaise on a case-by-case basis where a complaint is sent to both parties and either or both parties have been informed that this is the case. Contact will be made as soon as practical after it is known that a complaint has been made to both parties.

Those where the position is unclear

One party may receive a complaint and it may seem possible, but not certain, that a complaint has been made to the other. In such circumstances, enquiries will be made of the complainant and/or the other party in order to clarify the position.

Complaints that are for neither party

These will be dealt with according to each party's own arrangements. Where it is known that the complaint could potentially be considered by some other body, the person complaining will be informed of any other possible avenues for the complaint.

4.4 Operational Matters

Contact on operational matters will be made between ESOs and the Ombudsmen, or members of staff authorised to act on their behalf.

The following operational matters will be decided on a case-by-case basis:

The detail and type of information to be disclosed to the other party;

Arrangements for regular review of case progress;

Any other issues that may be relevant to each body's ability to investigate
the complaint; and,

Any other issues that may be relevant to the complaint.

4.5 Guidance

Arrangements will be made for communicating the provisions of this Memorandum within the Standards Board and the Commission.

Each body will, where appropriate, send enquirers a copy of the other body's general information leaflet.

The Standards Board and the Commission will ensure that the provisions of this Memorandum are followed by each party and that the Memorandum is clear to the public, local authorities and advisory bodies.

The Standards Board and the Commission will regularly review this Memorandum so as to ensure that developments and changes in the practices and working relationships of both bodies are adequately reflected.

The Standards Board and the Commission will regularly convene meetings to discuss other matters of common interest.