Decision : Upheld
Decision date : 17 Dec 2018
The Ombudsman's final decision:
Summary: Mr B complains the Council failed to properly investigate complaints he made about the actions of his parish councillors: the decision it reached did not accurately reflect his complaints. The Ombudsman finds the Council’s investigation of the complaints was flawed. The Council has agreed to conduct a fresh investigation.
- The complainant, Mr B, complains the Council’s deputy monitoring officer failed to investigate a complaint he made about the actions of his parish councillors, claiming it was not within remit. When his complaint was escalated to the standards review sub-committee the decision it reached did not accurately reflect 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)
- 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 considered the information submitted by Mr B about his complaint. I made written enquiries of the Council and considered the information and evidence it provided in response. I provided Mr B and the Council with a draft of this decision and took account of all comments submitted in reply.
What I found
- Mr B applied to the Council for planning permission. The parish council was a consultee, and the planning application was discussed at a parish council meeting. Mr B reports that he did not know his planning application would be discussed at the meeting, and he was not present. As part of his application for planning permission, Mr B had completed Certificate A certificate of ownership and did so on the understanding that this was the appropriate form in respect of land which is deemed highway verge.
- When the minutes of the meeting were subsequently published, they included reference to the planning application which had been discussed. The relevant section of the minutes included the following: “The applicant states he is the sole owner of the land to which the application relates. This is not the case, as the part of the land adjacent to the road, known locally as the village green, is classed as ‘unregistered’ by the Land Registry, according to a search carried out in February 2018. Whist it is acknowledged that it is not necessary to own land in order to submit a planning application relating to it, this is a factual inaccuracy, a deliberate attempt to mislead, and is clearly a reason that a planning permission could never be implemented”.
- Mr B considered he had been slandered and that the minutes of the meeting were libellous. Mr B complained to the County Council about the conduct of each of the five Members of the Parish Council who had been present at the relevant parish council meeting.
The investigation of ‘Code of Conduct’ complaints – stage one
- In line with relevant legislation, the Council has its own policy and procedure to investigate code of conduct complaints. Under the Council’s published process, the monitoring officer in consultation with an independent person will decide what action should be taken.
- In line with the usual process, when Mr B submitted his complaints the monitoring officer forwarded them to each of the five Members for their comments. Each submitted the same response, referring to the content of minutes of the meeting.
- The next step was for the monitoring officer (or in this case, the deputy monitoring officer) to assess the complaint, after consulting the Independent Person. Before the assessment of a complaint begins, the monitoring officer needs to be satisfied that one or more of the following tests are met:
a) The complaint is about the conduct of a member of a council within the area of Wiltshire Council;
b) The member was a member at the time of the incident giving rise to the complaint;
c) The member remains a member of the relevant council;
d) A Code of Conduct for the relevant council is in force and provided; or
e) The matters giving rise to the complaint would, if proven, be capable of breaching that Code.
- Having consulted the Independent Person, the deputy monitoring officer wrote to Mr B setting out a decision that there should be no further action, on each of the five complaints. The deputy monitoring officer set out the view that the complaints related to the minutes of the parish council and that these recorded a collective decision. He considered that observations by individual councillors in debate could not be accepted necessarily as the grounds on which the collective noted, and that while the minutes recorded a collective decision they could not be accepted necessarily as the grounds adopted by the individual Members. On that basis, the deputy monitoring officer decided the arrangements for dealing with Code of Conduct complaints could not be applied here.
- Mr B was advised of his right to request a review of these decisions by a sub-committee of the Council’s Standards Committee. He requested such a review in respect of four of the five decisions: the fifth Member had resigned from his position on the parish council. In his written review request Mr B referred again to the actions of the Members which he deemed amounted to slander and libel, and he asked if any check had been made of whether the parish council meeting had been audio-recorded.
- At the meeting of the sub-committee convened to consider the review, none of the Members against whom Mr B had complained were present. Mr B was present and was able to make oral representations.
- Following the meeting of the sub-committee it issued its decision. It said that it accepted the reasoning of the deputy monitoring officer who had concluded that the substance of the complaint related to the actions of the parish council as a body corporate, namely the accuracy of the minutes. It said as the complaint was related to the minutes, no comments or statements were attributed to any particular Member and so it was not a matter which could be addressed as a code of conduct issue. The sub-committee therefore determined to take no further action.
- Mr B’s complaint was in part about what was published in the minutes of the parish council meeting. But it was also about what had been said at the meeting, which then led to the entry in the minutes. In his complaints Mr B alleged each of the Members had used their office to slander him. In the assessment decision notice on each complaint, his complaint is noted as being that the subject Member ‘used his office to slander the complainant’. In his request for review of the assessment decision, Mr B refers to slander and libel and asks about audio-recording of the meeting.
- The decisions issued by the deputy monitoring officer and by the sub-committee refer to the content of the minutes of the parish council meeting being representative of the corporate decision of the parish council and therefore outside the remit of the code of conduct complaints process. But no reference is made to the question of alleged slander by each or any of the individual subject Members at the parish council meeting itself. On that basis, I consider the Council’s consideration of the complaints Mr B made was flawed.
- In recognition of the fault identified above, and resultant injustice to Mr B, I recommended that within four weeks of the date of the decision on this complaint the Council:
- Arranges to reinvestigate his complaint; and
- Issues him with a formal written apology.
- The Council has agreed to my recommendations.
- I have completed my investigation on the basis set out above.
Investigator's decision on behalf of the Ombudsman