Decision : Upheld
Decision date : 26 Oct 2018
The Ombudsman's final decision:
Summary: Mrs X complained to the Council about the conduct of one of its Councillors in 2016. Mrs X complains the Council has failed to adequately investigate and respond to this complaint. The Council delayed in handling Mrs X’s complaint, and failed to follow its procedures when it did consider the complaint. This caused Mrs X time and trouble pursuing the complaint. However, I do not consider the Council’s response to the complaint would have been different had the fault not occurred. The Council has agreed to pay
Mrs X £100 and complete its review of how it handles complaints about Councillors.
- Mrs X complained to the Council about the conduct of one of its Councillors in 2016. Mrs X complains the Council has failed to adequately investigate and respond to this complaint.
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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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 have spoken to Mrs X, considered her written complaint, and the Council’s response to my enquiries.
- Mrs X and the Council have had an opportunity to comment on my draft decision.
What I found
- The Localism Act 2011 says the Council must have arrangements in place to investigate complaints that a Member of the Council has failed to comply with the Council’s code of conduct.
- The Council’s procedure says complaints about alleged breaches of the code of conduct will be considered by the Council’s monitoring officer. The monitoring officer should be satisfied the complaint is about the conduct of a member of the Council, who was in office at the time and acting as a Councillor.
- The procedure also says the monitoring officer can decide not to investigate the complaint if they do not believe the matter is serious enough to warrant an investigation, or they believe the complaint is politically motivated. The procedure says the monitoring officer will consult an independent person in deciding whether to investigate.
- If the monitoring officer decides not to refer the complaint for investigation, and the complainant disagrees, the decision not to investigate will be reviewed by the Chair of the Standards Committee. The Council’s procedure says a person has no other right of appeal following this.
- In November 2016 Mrs X attended an event where a local Councillor was also present. Mrs X says during the event the Councillor refused to sit at a table with her. Mrs X complained about the Councillor’s behaviour to the Council. She said she felt threatened and intimidated.
- The Council responded to Mrs X in December 2016. It asked Mrs X to clarify which parts of the Council’s code of conduct the Councillor had broken. Mrs X responded to the Council a few days later. She said the Councillor had been offensive and she felt bullied. She said it was not the conduct she would expect. The Council responded in January 2017. The Council’s monitoring officer said they would consult with an independent person and let Mrs X know how they intended to take the matter forward.
- Mrs X chased the Council for a response throughout 2017. In March 2018, 15 months after her original complaint, she made a new complaint to the Council. She said it had not responded to her complaint about the Councillors conduct, or shared the findings of the “independent adjudicator” into the complaint. The Council acknowledged the second complaint in April 2018. In May 2018 Mrs X contacted the Council again saying she had still not had a response. The Council did not respond and Mrs X complained to the Ombudsman.
- Following enquiries from the Ombudsman, the Council responded to Mrs X’s complaint in September 2018, 22 months after the original complaint. The monitoring officer said they had assessed the complaint and did not consider the matter serious enough to warrant a formal investigation. They said the Councillor was entitled to express their view to Mrs X and Mrs X’s complaint contained criticism of the Councillor which they believed was politically motivated, rather than about their conduct.
- The officer clarified there was no report from an “independent adjudicator” as they had decided an independent person did not need to be consulted over the complaint. The Council apologised for the delay and said it was now reviewing how it handled standards complaints. Mrs X told the Council she was unhappy with the outcome.
- The Council took 22 months to respond to Mrs X’s complaint. This is fault. In its complaint response the Council says it decided how it would respond to the matter in January 2017 but did not communicate this until September 2018. During that time Mrs X contacted the Council on several occasions and eventually complained to the Ombudsman. The delay caused Mrs X time and trouble pursuing the complaint. It also contributed to Mrs X’s lack of faith in the Council and its commitment to preserving the standards of its councillors.
- The Council’s procedure for handling complaints about Councillors says it will consult an independent person when deciding whether to investigate a complaint. The Council also told Mrs X it would consult with an independent person. The Council did not involve an independent person in its decision to not investigate Mrs X’s complaint. This is fault.
- The procedure also says if a person disagrees with the decision not to investigate it will pass the matter to the Chair of the Standards Committee. Mrs X was unhappy with the outcome and the Council did not pass the matter to the Chair. This is fault.
- The Council’s procedure into handling complaints against Councillors says a person has no other right of appeal. However, a person can complain to the Ombudsman once they have completed the Council’s procedures. The Council has failed to make this clear in its procedure.
- The Council delayed in handling Mrs X’s complaint, and failed to follow its procedures when it did consider the complaint. However, on the balance of probabilities I do not consider the independent person or the Chair would have reached a different view on Mrs X’s complaint to the Council’s monitoring officer. While Mrs X is unhappy with the Councillors conduct there is no evidence the matter reaches the threshold for a full investigation into the matter. Mrs X has not been caused an injustice by the Council’s failure to follow its procedures.
- The Council has already apologised to Mrs X for the delay in handling her complaint. The Council has agreed, within one month, to pay Mrs X £100 for her time and trouble pursuing the complaint during the delay.
- The Council has agreed, within three months, to complete its review into how it handles standards complaints and report back to the Ombudsman. This will include amending its procedures to include a person’s right to complain to the Ombudsman.
- There was fault leading to injustice. The Council has accepted my recommendations. I intend to complete my investigation as I consider that a suitable remedy.
Investigator's decision on behalf of the Ombudsman