Decision : Not upheld
Decision date : 22 Jan 2019
The Ombudsman's final decision:
Summary: Mr D complains that the Council’s solicitor mishandled his complaint against two councillors by failing to investigate the complaint and requesting irrelevant information from him. He also complains that the Council failed to investigate his complaint about the solicitor’s actions. The Ombudsman finds the solicitor properly investigated Mr D’s complaint about the councillors and, having reviewed her decision, the Council was not at fault in failing to pursue the matter further.
- Mr D complains that the Council’s solicitor mishandled his complaint against two councillors by failing to investigate the complaint and by requesting irrelevant information from him which would lead to the complaint being limited in scope.
- Mr D also complains that the Council failed to investigate his complaint about the solicitor’s actions.
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)
- 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 considered all the information provided by Mr D, made enquiries of the Council and considered its comments and the documents it provided.
- I have written to Mr D and the Council with my draft decision and considered their comments.
What I found
- Under the Localism Act 2011 local authorities are responsible for upholding the ethical behaviour of their Members and must have in place “arrangements” under which allegations that a Member of the authority has failed to comply with its code of conduct will be investigated. The Act does not set out the procedure to be followed. It is for the authority to decide the details of its code of conduct and the arrangements for dealing with complaints about Member conduct. The arrangements must include the appointment of at least one independent person who has an advisory role and must be consulted before the authority takes a decision on an allegation it has investigated. The views of the independent person can also be sought by the monitoring officer at any other stage after receipt of a complaint.
- The Ombudsman does not act as an avenue of appeal against a council’s decisions regarding the conduct of Members.
- Mr D complained to the Council that two councillors had breached the Members’ Code of Conduct.
- The Council’s solicitor wrote to Mr D asking various questions about his complaint.
- Mr D complained to the Council about the solicitor’s actions and says it has taken no action to investigate or respond to that complaint.
Complaint against two councillors
- Mr D says the solicitor failed to investigate his complaint properly and that the monitoring officer failed to consult the independent person before issuing her decision.
- Complaints that a Member has failed to comply with the code of conduct should be dealt with in accordance with the Council’s agreed procedure. As councils can make their own arrangements, there may be procedural differences between councils. In general, however, the monitoring officer will initially assess a complaint and decide whether it merits formal investigation. Although this is normally done in consultation with the independent person, there is no requirement to do so. In general, a complaint will be dismissed at the initial stage if, for example, there is no breach of the code of conduct, it does not relate to behaviour in the Member’s official capacity as a councillor or the matter is so trivial that it would not be in the public interest to pursue it further.
- The Council’s procedure is that the monitoring officer will review the complaint and make an initial assessment as to whether it merits formal investigation or another course of action. The monitoring officer may appoint an investigating officer who may be a council officer, an officer from another council or an external investigator. The investigating officer will produce a draft report and send copies to the complainant and the Member for comment. The investigating officer will then issue their final report to the monitoring officer. If the monitoring officer decides there has been no breach of the code of conduct she will write to the complainant explaining this. If she decides there should be a hearing to decide whether the Member has failed to comply with the code of conduct, she will report the investigating officer’s findings to the Council’s hearings panel. The Council must appoint an independent person who will attend all meetings of the panel and their views must be taken into account before the panel makes a decision on the allegation. The monitoring Officer may seek the independent person’s views earlier in the process but there is no requirement for her to do so.
- In this case, the monitoring officer appointed the Council’s solicitor, Officer X, to be the investigating officer. She interviewed the Members in question and other involved parties. She then prepared detailed reports for the Monitoring Officer and sent a copy to Mr D. The monitoring officer decided there was no breach of the code of conduct so she did not refer the complaint for formal investigation.
- Under the Council’s procedure the independent person must only be consulted where the complaint is being formally investigated by the hearings panel. So there was no requirement for the monitoring officer to do this.
- Mr D says Officer X acted inappropriately by asking him questions. He says there was no requirement for him to provide this information in support of his complaint. I find no grounds to criticise the officer for requesting further information which she considered relevant to her investigation. The Council’s procedure states the complainant should set out the complaint fully and clearly and provide all the information at the outset. It states “You should be as detailed as possible and substantiate your complaint where you can. Although you are not required to prove your complaint at this stage of proceedings, you do have to demonstrate that you have reasonable grounds for believing that the member(s) complained about has breached the Code of Conduct.”
- Mr D says Officer X requested further information from him so his complaint would be considered valid. I do not consider this to be the case. Officer X wrote to Mr D stating that one of the councillors had provided her account of the matter. She then requested further information “so that I can make progress with the investigation”. She did not state that failure to answer the questions would render the complaint invalid. In her report Officer X stated that she asked Mr D to clarify a number of points “which I considered were important in establishing what he was alleging”. It was a matter for her professional judgement what information she needed to determine the complaint and I find no grounds to question her decision to request further information from Mr D.
- In conclusion, I am satisfied the Council considered Mr D’s complaints against its agreed policy and explained to him why it had decided not to proceed to a formal investigation. In the absence of administrative fault, there are no grounds to question that decision.
- However, I find the Council’s procedure is unclear and is likely to be confusing to complainants. The Council accepts this and has confirmed that the procedure is currently under revision to enhance its effectiveness and understanding.
Complaint against the solicitor
- Mr D says the Council has failed to investigate his complaint about Officer X’s actions.
- The deputy monitoring officer reviewed the findings of Officer X’s initial investigation. She considered Officer X’s reports and found no evidence that she had handled the investigation incorrectly. She declined to pursue the matter further.
- I am satisfied the Council has reviewed Officer X’s investigation and was satisfied there were no grounds to pursue the matter further. In the absence of fault, there are no grounds to question this decision.
- Mr D complained to the Council in January 2017. Officer X’s reports were completed in March and May 2017 respectively. He complained about her early in the process. The Council did not formally respond to Mr D’s complaints until August 2018.
- The Council accepts there were delays in responding to Mr D’s complaint and has apologised for this. Although this was frustrating for Mr D, I do not consider the delay caused him a significant personal injustice sufficient to warrant the Ombudsman pursuing the matter.
- I do not uphold Mr D’s complaint.
- I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman