Decision : Upheld
Decision date : 30 Jul 2018
The Ombudsman's final decision:
Summary: The investigation process followed by the Independent Investigator of Mr X’s complaint about the conduct of Councillor Y did not involve fault. But the Council delayed in completing its consideration of that Investigator’s draft report. The report included contradictory conclusions but the Council did not identify this, and the Council failed to send the final version to Mr X. These faults led to avoidable use of Mr X’s time, and caused unnecessary stress, trouble, confusion and uncertainty to him. These injustices require a remedy.
- Mr X complains the Council:
- did not investigate properly his complaint about the conduct of Councillor Y;
- has failed to act on its findings from that investigation;
- did not deal properly with his complaint.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- issued two draft decisions, inviting comments from Mr X and the Council, and considered replies received.
What I found
- In Member conduct matters, it is not the Ombudsman’s role to reconsider or reinvestigate the Member. The Ombudsman does not have powers to investigate the conduct of elected Members. The Ombudsman’s remit is limited to investigating whether a council has followed its own policy and process when doing its own Member conduct investigation.
Investigation of Councillor Y
- It was the role of the Investigating Officer (IO) to do the conduct investigation and produce their report. That report then went to the Council’s Solicitor for their consideration. The Solicitor then decided on what action the Council should take in response to the IO’s findings.
- I have not seen fault in the way the IO conducted their investigation into Mr X’s complaint. The IO spoke to people involved in the matter, including Councillor Y, and gathered the relevant information. I recognise Mr X may consider the IO should have taken other extra steps during the investigation. But the IO has broad discretion on how they investigate. The IO was entitled to investigate as they saw fit, and I have not seen evidence of fault in how they did this.
- I note it took the IO about 14 weeks to complete their investigation, a timescale Mr X was not happy with at the time. But at the 1 November 2016 meeting between the IO and Mr X, the IO managed Mr X’s expectations by advising their part of the investigation would take about 16 weeks. So I do not find there was fault in the time taken by the IO to complete their investigation.
- However, there was fault in the way the IO set out and expressed their conclusions. I give further comment on this under the ‘Contradictory conclusions’ heading below.
- The IO had issued the draft report on 27 January 2017. The matter was then with the Council’s Solicitor. Mr X sent at least seven chasing emails with additional comments. Some of the emails were during the IO’s investigation process, and were quite frequent. But others in my view demonstrated delay by the Council.
- In particular, there was delay in the Council responding to Mr X’s 14 March 2017 email, the seventh one he sent. By that time, the matter was no longer with the IO and was with the Council’s Solicitor for consideration. The Solicitor replied to that email on 16 June 2017, over three months later. This was fault. I find this fault caused Mr X an injustice. Given the delay, Mr X had additional uncertainty about the outcome of his complaint, and that the Council was dealing with his complaint properly. I recommend a remedy for this injustice below.
- In the 16 June email response, despite the months elapsed since the IO had done the draft report, the Solicitor also told Mr X they needed to speak to Councillor Y again. I find this delay in speaking to the Councillor and concluding the conduct process was also fault. This caused further injustice of added uncertainty to Mr X who had been waiting for the end of the process for several months. I recommend a remedy for this injustice below.
- I have considered here that the Council says the delay in this part of the process was due to officer absence. But councils should have plans in place for colleagues to progress the work of absent staff and I remain of the view this delay was fault.
- I note Mr X believes the Council delayed this matter intentionally because it was a complaint from him. I have not seen any evidence which would show the Council delayed for any reason which was personal or specific to him.
Failure to send Mr X the final decision
- The Council advised Councillor Y they would take no further action on the matter on 17 July 2017. But the Council compounded its delay in completing the process by not sending Mr X a copy of the final version of the conduct report at the same time as Councillor Y. This was fault. It resulted in yet more uncertainty for Mr X as he did not know whether the draft findings had changed. I note the conclusions section of the draft report and the final version are the same, but Mr X did not have both versions, so could not know this for certain.
- Before the Council closed the conduct complaint, Mr X had asked questions of the Council’s Solicitor on 17 June 2017. Then a month later the Solicitor told Mr X the matter was closed and he would need to complain to the Ombudsman if he remained dissatisfied. In that response, the Solicitor told Mr X the final decision had been there was no breach of the code of conduct by Councillor Y.
- The second conclusion in the report says:
“I do not consider that Councillor Y broke the code regarding respect for others as defined at 2.8 in our code [part 5]”.
- But the fourth conclusion states:
“I accept that Mr X feels he is not treated with respect by Councillor Y and that under point 3.1 a member should treat others with respect. I find that Mr X has construed comments made as disrespectful of him as a professional and therefore this part of the code has been breached”
- These conclusions are inconsistent, which is fault. Conclusion two says Councillor Y did not breach the part of the code about respect for others. Conclusion four, in further discussion of the issue of respect, then says Councillor Y did breach this element of the code. I find it is fault by the IO and the Council’s Solicitor that they issued the draft and final reports without amending these contradictory conclusions.
- The Council failed to act on its finding there had been a breach of the code by Councillor Y because of the confused conclusions in its final decision. Mr X had not seen the final version, so he could not tell whether the Solicitor’s view there was no conduct breach was based on the same draft conclusions he had seen, or on altered conclusions in the final version.
- The Council says it intends to reconsider the conduct report and its conclusions. I recommend the Council does this as soon as possible. If Mr X remains dissatisfied with the outcome of that reconsideration, that would be a new complaint. Mr X would need to pursue it with the Council first before the Ombudsman could be involved.
- I recommended the Council:
- within one month of the date of my final decision, apologise to Mr X and pay him £150 to acknowledge the avoidable use of his time, and trouble, confusion and uncertainty caused by its faults;
- within one month of my final decision, review its guidance to complainants which explains to them the remit of the Ombudsman when investigating Member code of conduct complaints. Within that month, the Council will advise the Ombudsman of its guidance, and set out how it has informed the relevant officers of any changes;
- within one month of my final decision, reconsider the Councillor Y conduct complaint report and its conclusions, issue its final report to all relevant parties including Mr X, and take the action required by that decision. Once the final report has been reissued, the Council should then take any action stemming from it within one further month of that reissue date.
- There is fault by the Council causing injustice to Mr X. The Council has agreed to the recommended remedies. I consider the matter resolved.
- I have completed my investigation.
Investigator's decision on behalf of the Ombudsman