Summary: Mr C complained about the way the Council considered his complaint about a Councillor’s conduct. The Ombudsman has found fault in the process which has caused Mr C uncertainty. The Council has agreed to repeat the process.

The complaint

1. The complainant whom I shall call Mr C, complains that the Council failed to properly investigate his complaint about the conduct of a council member. He says the Council failed to follow the correct process and did not consult with an independent person.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have read the papers submitted by Mr C in response to my draft decision. I have made enquiries of the Council and considered its comments and documents it provided.
5. I provided Mr C and the Council with a copy of my draft decision and invited their comments. I considered Mr C’s comments on my final decision and made further enquiries and spoke to the Council.

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What I found

6. In June 2018, we upheld Mr C’s complaint about the way the Council considered his complaint about a Councillor’s conduct. We found fault in the process the Council followed.
7. The Council agreed to our recommendations to put matters right so we ended our investigation. In July 2018, Mr C told us the Council had not carried out the agreed actions. We asked the Council what was happening. The Council confirmed that it had completed part of the remedy. We received and accepted a new complaint from Mr C that the Council had not provided the agreed remedy for the previous complaint.
8. Our previous investigation found that the Council had failed to follow its members Code of Conduct when it investigated Mr C’s complaint about a councillor. Specifically, in investigating the complaint the Council failed to consult with members of the committee. We found that this meant that the Council could not demonstrate it had properly considered Mr C’s complaint. This caused an injustice to Mr C.
9. At our recommendation, the Council agreed to carry out a new investigation into Mr C’s complaint in accordance with its Members Code of Conduct.
10. Mr C contacted us in July 2018 and said that the Council had failed to do what it had promised. He said the Council had consulted with members about the complaint and informed Mr C that the outcome of his complaint remained unchanged. He said the Council had failed to carry out a new investigation.
11. As part of this investigation I contacted the Council and it confirmed that it had not carried out a new investigation but had completed the member consultation. It said “....we are unsure what value a new investigation would bring. We agreed that we had missed a step in the process and sought to rectify this, however we feel that a new investigation would be a waste of public resources”.
12. In my draft decision, I concluded that whilst the Council did not carry out a new investigation into the complaint it has completed the investigation in accordance with its members code of conduct. This is the best possible outcome we could achieve for Mr C. For this reason, I cannot find further fault in the Council’s actions. Mr C challenged the draft decision.

Legal and administrative background

13. 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.
14. 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.
15. The Ombudsman does not act as an avenue of appeal against a council’s decisions regarding the conduct of Members.

Mr C’s comments on the draft decision

16. Mr C challenged the draft decsion Specifically he said that:

• The Council failed to appoint and consult with an independent person as part of the process;
• That the investigation had not addressed his assertion that the Councillor had deliberately misquoted him at a full Council meeting on 5 December 2017;

17. Mr C said that at the time of making the complaint in December 2017, the Council’s constitution said that the standard committee will consist of councillors drawn proportionately from the political groups represented on the Council.
18. But no political group may provide more than two members. Therefore, the committee comprised two co-opted members and two elected members (including the monitoring officer) both from the same party as the Councillor he had complained about.
19. In April 2018, the constitution was amended and allowed for a political group to have more than two members. Mr C says that the monitoring officer consulted members about the complaint, following our recommendation in June 2018. He says that by this time the number of elected members had risen to four and three were from the same party as the Councillor he had complained about. He says because of this imbalance he believes the Council has failed to carry out a fair and impartial investigation into his complaint.
20. The Council agreed that the members of the standards committee had changed in the period between the original consideration and re-consideration of Mr C’s complaint. It said that there was always a Conservative majority and this was still the case and therefore the political balance has not changed. The Council explained that there is a strong independent representation and voice on the Committee and one of the new members is an independent councillor. The Council confirmed that the independent councillor was consulted, and his comments were considered as part of the process.
21. Mr C challenged the Council’s argument that the independent councillor had been consulted as part of the process. The independent councillor told the Ombudsman that he was consulted but felt that a decision had already been made and the complaint was closed. He also said that chair of the standards committee had not shared all the information him.

Analysis

22. The Ombudsman’s role in this complaint is to look at whether the Council has properly considered Mr C’s code of conduct complaint, not to reinvestigate the complaint itself.
23. 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.
24. In this case the monitoring officer sought a response from the member in the first instance. The monitoring officer and chair of the standards committee then reviewed Mr C’s complaint and the members’ response and decided there had been no breach of the code. On our recommendation, the monitoring officer then consulted with members about the complaint and concluded the same. It therefore rejected the complaint at the assessment stage (stage 1) and did not proceed to a formal investigation. However, the chair of the standards committee withheld some information from the independent councillor, and this questions the fairness and validity of the process. This is fault. It is also a concern that the independent councillor was of the view that a decsion had already been made prior to the consultation taking place. This has caused Mr C uncertainty about the process and how the Council has considered his complaint. This is his injustice.
25. I have discussed my findings with the Council. The Council has agreed to carry out a new investigation into Mr C’s complaint. It said a new standards committee will be in place in June 2019 and will be asked to consider the complaint, in accordance with its process. It also said it will appoint an independent person to carry out the investigation.

Agreed action

26. Within two months of this decision the Council will:

• apologise to Mr C in writing;
• contact Mr C and clarify the scope of his complaint;
• carry out an investigation into Mr C’s complaint with an independent person.
• inform Mr C of its decsion in writing and how it reached that decision.

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Final decision

27. There was fault in the way the Council handled Mr C’s code of conduct complaint. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman