Decision : Closed after initial enquiries
Decision date : 28 Mar 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint. He is unlikely to find fault in the way the Council dealt with his code of conduct complaint about a councillor and the actions of the monitoring officer.
- Mr X complains about the way the Council decided that a councillor did not breach its code of conduct.
- He also complains the Council failed to investigate his complaint about the actions of the monitoring officer.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- the injustice is not significant enough to justify our involvement
- it is unlikely further investigation will lead to a different outcome
(Local Government Act 1974, section 24A (6), as amended)
How I considered this complaint
- I considered the information provided by Mr X and the Council. This includes the Council’s response to his complaint and the monitoring officer’s final report. Mr X also commented on the draft version of this decision.
What I found
- The Council’s rules for dealing with code of conduct complaints say:
“If the Chair of the Standards Committee or the Monitoring Officer decided that a complaint merits formal investigation, he/she will appoint an Investigating Officer who will be the Deputy Monitoring Officer or other senior Council lawyer.”
“The investigating officer would normally write to the Member against whom you have complained and provide him/her with a copy of your complaint, and ask the Member concerned, to give you both an opportunity to identify any matter in that draft report which you disagree with or which you consider requires more consideration.”
“The Standards Committee Chair will review the investigating officer’s report and, if satisfied that the investigating officer’s report is sufficient, the Monitoring Officer will write to you, to the Member concerned and to his/her political group leader notifying that the Committee is satisfied that no further action is required and enclose a copy of the investigation officer’s final report.”
- In January, Mr X sent in a complaint form to the Council. In it he complained that a councillor had breached the code of conduct. In March, he asked if the Council had received his complaint. The monitoring officer confirmed it had, and that a member of her team would contact him in due course.
- In May, Mr X emailed the monitoring officer asking, “can I have an update please”. He did not include any information about his complaint. The monitoring officer replied saying she did not know what he wanted an update on, as he had not included any identifying information.
- The deputy monitoring officer (DMO) sent Mr X an email. He apologised for the failure keep him updated on the progress of his complaint. He advised there had been a delay due to limits on Council activities during the period leading up to the local elections. However, he assured Mr X the investigation into his complaint was progressing and he would contact him again.
- The following day the DMO told Mr X he was drafting a report for the independent chair of the standards committee. The draft report was sent to Mr X who confirmed he would be commenting on it. Mr X also complained about the monitoring officer’s failure to acknowledge an email he sent her. And because she had advised she did not know what he was referring to when he had asked her for an update in May.
- The DMO explained to Mr X that the monitoring officer would not necessarily have any knowledge of his complaint as she was not involved in the investigation. This had been carried out by a senior Council lawyer according to the procedure for dealing with code of conduct complaints.
- Mr X then commented on the draft report. The DMO confirms he considered Mr X’s comments, made further enquiries and discussed case with two independent members. Having completed this process, the DMO issued a final report on Mr X’s complaint. He concluded the councillor had not breached the code of conduct.
- The Ombudsman has no jurisdiction to consider the actions of councillors where they are, as in this case, acting as ward councillors and not as representatives of the Council. He cannot therefore, investigate Mr X’s complaint about the councillor’s actions. Neither can he demand that a councillor be removed from office. He can consider how the Council responded to Mr X’s complaint about a breach of the code of conduct. But, if the Council has properly considered the issue, he cannot question the merits of its final decision.
- Mr X says the Council did not investigate his complaint properly. And it did not ask him for copies of emails etc. However, it is not for the Ombudsman to dictate how a Council’s investigates a complaint. In this case the Council considered Mr X’s complaint and consulted the independent person. The DMO considered Mr X’s comments and sought further information from third parties before deciding the councillor had not breached the code of conduct. This is in accordance with its published procedure on dealing with code of conduct complaints. The Council is entitled to make this decision.
- Mr X also complains about the way the Council dealt with his complaint about the failure of the monitoring officer to:
- acknowledge his email
- realise what he had contacted her about; and
- the delay in keeping him updated.
I do not intend to investigate this part of Mr X’s complaint. This is because I do not consider Mr X has suffered personal injustice resulting from of any failings in the complaints process alone to warrant our involvement.
- I will not investigate this complaint. This is because I have not seen any evidence of fault in the process the Council followed when it considered Mr X’s complaint that a councillor had breached the code of conduct. Also, I do not consider that Mr X has suffered a significant personal injustice because of the way the Council responded to his complaint about the actions of the monitoring officer. Therefore, I will not investigate this part of his complaint as it does not warrant the Ombudsman’s involvement.
Investigator's decision on behalf of the Ombudsman