Decision : Upheld
Decision date : 06 Aug 2018
The Ombudsman's final decision:
Summary: Mr X complained about the conduct of members of the Council’s planning committee. The Council took far too long to respond to his complaint and only did so after the Ombudsman’s involvement. It has agreed to apologise and pay Mr X £100 for his time and trouble. It will also review its procedures to ensure this does not reoccur. It will also review its code of conduct to clarify the involvement of the Independent Person in decisions about whether to investigate allegations. There was no fault in how the Council decided not to further investigate the member conduct issue.
- Mr X complained about the conduct of members of the Council’s planning committee when considering a planning application for housing development involving demolition of a building used by the residents association.
- He said members behaved inappropriately when affected residents were addressing the committee. He said the Council leader had previously promised the residents association would get a replacement facility if the development went ahead. This has not happened.
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
- I spoke to Mr X about his complaint.
- I asked the Council questions about the complaint and considered:
- Its correspondence with Mr X about his complaint.
- Its Member Code of Conduct
What I found
- Councils must have arrangements to investigate allegations about member conduct.
- The Council’s member code of conduct sets out how it will consider complaints concerning member behaviour. The Council’s “Arrangement for dealing with ethical governance matters” says the Council has appointed independent persons whose “views will be sought, and taken into account, by the Council before it makes its decision on an allegation that it has decided to investigate”.
- It goes on to say the Monitoring Officer will consider the complaint against various criteria. These give the Monitoring Officer discretion whether to investigate the complaint. Those criteria relevant to this complaint were:
- Is the complaint mainly about a council decision, rather than the conduct of a member?
- Is the outcome, including the availability of any likely sanction, sought by the complainant one that the Authority can deliver?
- In September 2017 the Council’s Planning Committee considered an application from the Council to demolish a building used, under lease, by a residents association for a social club. The application was to build a four storey residential block, creating floorspace for a community centre.
- The planning officer report said the development would reduce community floorspace in the area but would create a new community centre. The report concluded that, on balance, building the new facility would outweigh the loss of community space resulting from demolition of the club.
- The report explained local residents and businesses had been told about the proposals. It recorded over 200 letters of objection and three petitions. It summarised key issues from responses to the proposal. These included concerns about the loss of the community centre and heard from speakers in favour and against the development. The Committee voted to approve the development subject to completion of certain matters. The Council gave final approval to the development in November 2017
Mr X’s complaint
- Mr X contacted the Council chief executive after the meeting with concerns about the conduct of councillors at the meeting. He asked the Council to investigate what happened and said the Council leader had put pressure on other councillors to support the planning application.
- A local community forum meeting on 14 September referred to the complaint from residents and referred to the need to investigate the allegations.
- The Council Monitoring Officer emailed Mr X on 14 September explaining his role and that he could not overturn the planning decision. He said it would have been appropriate for the Council’s leader to be supportive of the application as it was made by the Council. He said could not investigate vague or unsubstantiated allegations. He asked Mr X to give specific information about which councillors, and what parts of the Code were allegedly breached.
- Mr X emailed the Council Chief Executive on 15 September, after the forum meeting. He said a member of the public had questioned whether the Council leader had put pressure on a local councillor to vote through the plans. He was not satisfied an answer was given. He asked for the matter to be investigated.
- Mr X wrote to the Council on 21 September setting out his complaint. He believed three councillors had broken specific parts of the code. He again referred to what he said was a refusal to answer questions at the forum.
- Mr X resent the letter by registered post on 1 October. He wrote again on 10 October to say he had had no response from the Council. He referred to a conversation he said happened several years before. He said the Council leader and another councillor had visited the residents association and promised if this happened they would get a community centre to run.
- Mr X said councillors at the planning meeting had been put under pressure and had not taken the matter seriously. He referred to 300 letters of objection and a petition of 600 people opposing the development.
- Mr X then complained to the Ombudsman that the Council had not responded to his complaints. The Council replied to the Ombudsman on 11 December to say it had not finished investigating Mr X’s complaint.
- Mr X contacted the Ombudsman again in February to say he had still heard nothing from the Council. The Ombudsman chased this up with the Council which wrote back to Mr X on 9 March 2018. It said:
- Planning Committee members had been appropriately trained on predetermination.
- It was appropriate for certain councillors to have abstained from the vote.
- It was not surprising the application was supported by the Council leadership as it was the Council’s planning application.
- This meant pressurising councillors would not, on its own, mean improper conduct.
- Some behaviours such as a threat of violence would be improper. But trying to persuade by explaining planning merits would not be improper.
- Lobbying by developers and objectors would not be improper. The key was whether members of the committee approached the decision with an open mind.
- It was not improper for a political group to take a position on a development, citing relevant case law.
Handling Mr X’s complaint
- There was serious delay by the Council in responding to Mr X’s complaint. Mr X’s correspondence with the Council on 15 September and 21 September set out his complaint in sufficient detail that it should have been able to decide whether or not to investigate, or to ask him for more information if it needed to.
- Instead the Council took nearly six months, until 9 March to respond. It only did so after several contacts from the Ombudsman. This is unacceptable delay. It meant Mr X had to go to the time and trouble of making the complaint to the Ombudsman. The Council should apologise and pay Mr X £100 to remedy this injustice.
The Council’s response to Mr X’s complaint
- The Monitoring Officer considered the complaint against the agreed criteria, set out in the Council’s Code of Conduct. He considered relevant factors including whether the investigation could achieve the desired outcome. He explained why it was not possible to overturn the planning decision. He also explained why pressure from councillors would not necessarily mean that a breach of the code had occurred.
- Because the Council considered the complaint against its agreed policy and explained to Mr X why it had decided not to investigate further I cannot question that decision or say there was fault in it.
- However the Council’s Code appears to give contradictory guidance on the involvement of the Independent Person in complaints that the Monitoring Officer decides not to investigate.
- One section (appendix two paragraph two) states the Independent Person’s views must be sought before it makes a decision on an allegation it has (already) decided to investigate, as well in as other circumstances at the Monitoring Officer’s discretion. This accords with what actually happened here as the Independent Person was not involved.
- However, another section, appendix two, paragraph 15, states the Monitoring Officer will consult the Independent Person and will take their views into account in reaching a decision whether to investigate. This reads as though the Independent Person will always be consulted on decisions about whether or not to investigate an allegation.
- This contradiction is likely to be confusing to complainants and the Council should review its Code to clarify the position. On balance however I do not consider this fault caused Mr X injustice. This is because the Monitoring Officer belatedly replied comprehensively to Mr X’s complaint, explaining his reasons. Mr X is very unhappy with that decision but for the reasons already explained I am satisfied it was made without fault.
- Within one month of my final decision the Council will:
- Apologise to Mr X for taking nearly six months to reply to his complaint;
- Pay Mr X £100 for the time, trouble and inconvenience cause to him by having to complain to the Ombudsman before getting a reply from the Council.
- I have completed my investigation. I have found evidence of fault causing injustice. The Council has agreed to carry out action to remedy that injustice and prevent its reoccurrence.
Investigator's decision on behalf of the Ombudsman