Decision : Upheld
Decision date : 09 Jan 2019
The Ombudsman's final decision:
Summary: Mr X complains about the way the Council handled his code of conduct complaint against a councillor. Although the Council’s decision to take no further action was not fault, it has been unable to justify calling his complaint vexatious. This is fault and the Ombudsman recommended the Council should apologise to Mr X and remove that statement from the decision notice to remedy the injustice caused to him. The Council has agreed to this remedy.
- Mr X complains about the way the Council handled his code of conduct complaint against a councillor. In particular, Mr X says the Council:
- made its decision without asking him for documents, emails or the witness information he had offered;
- gave no reasons for its decision; and
- referred to him as being vexatious, but has provided no reasons for this or a right to reply.
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 with Mr X complaint and considered what he said. I wrote to the Council and made enquiries. I then reviewed the material it sent in response.
- Section 28 of the Localism Act 2011 put a duty on councils to have a code of conduct. I have seen the Council’s code of conduct complaint form, which contains information about the process it follows. I have also seen it’s ‘Vexatious or Unreasonably Persistent Complaints Guidance’.
- I shared my draft decision with Mr X and the Council and I invited them to comment on it.
What I found
- The law says councils must have a code of conduct and investigate breaches of it. Although councils investigate complaints themselves, they must involve an independent person in their decision-making process.
- The Council has a code of conduct and a process for investigating alleged breaches of it. A senior officer considers complaints and, with the input of an independent person, decides first whether there is evidence to justify further investigation. If they decide there is they appoint an officer to investigate it. If they decide a breach of the code of the conduct is not clear from the complaint no further action will happen.
- The Council also has a policy on vexatious complaints. It lists 22 characteristics of a vexatious complainant, while also saying one characteristic alone is unlikely to meet that threshold. It goes on to explain actions the Council could consider to manage someone who makes a vexatious complaint.
Mr X’s complaint
- In May 2018, Mr X wrote to complain about a councillor he alleges breached the Council’s code of conduct. A senior officer considered the complaint. They made the elected member aware and asked for the independent person’s views. The independent person said no further action should be taken because no evidence had been produced about collusion and some of Mr X’s complaint fell outside that process.
- The independent person went on to say, “the tone and manner of the complaint brings it into, in my view, a vexatious complaint”. He also said he was happy to explain his views or consider other evidence if needed.
- The Council sent Mr X a decision notice on his complaint around three weeks later. It said no further action would be taken because the complaint did not disclose a breach of the code of conduct and, “the complaint appears to be vexatious and has been submitted with improper motive.”
- Mr X was unhappy with the Council’s conclusion and sent an email to the senior officer asking for further explanation about how it had decided his complaint was vexatious. The senior officer said he had nothing more to add and would not discuss the decision with him. Mr X asked if the decision could be reviewed, either by a court or by the Ombudsman and he was told to take his own legal advice.
- The role of the Ombudsman is to investigate whether the Council has followed its own policy and general good administrative practice in reaching its decision. We are not an appeals body so, as long as the Council has acted properly, we will not question its decision.
- The decision the Council took that Mr X’s complaint did not justify further investigation, because he had not shown a breach of the code of conduct, was one it was entitled to make. The senior officer asked for the independent person’s advice and clearly considered the content of Mr X’s complaint form. Also, the Council gave its reasons to Mr X, although they are brief.
- One of those reasons given was that Mr X was vexatious. The code of conduct form does not specifically warn complainants that is a possible outcome, so it’s logical to assume the Council’s wider guidance on vexatious complaints applies here.
- I asked the Council to explain why it felt Mr X complaint was vexatious. It directed me to the independent person’s comments, without providing any further explanation. This suggests the senior officer relied completely on the independent person’s view when he came to write the decision notice. Given the decision notice is issued by the Council, rather than the independent person, I would expect the Council to be able to explain why it reached the conclusion it did. It should also consider the wider context of a complainant’s behaviour, something the independent person would not usually be aware of.
- I note the Council has not restricted Mr X’s contact with it in any way either. It confirms he is still able to contact the Council and it continues to liaise with him about several matters. This leads me to question the purpose in saying his complaint was vexatious.
- In the absence of any other explanation, I can understand why Mr X does not understand why his complaint was called vexatious. Even though it did not do so on its decision notice, the Council could have explained its decision when Mr X emailed afterwards but it refused to do so. This adds to the impression it could not justify its position.
- I conclude the decision to call Mr X’s complaint vexatious in this instance is fault. The Council has not satisfactorily explained the reasons for its decision to Mr X or the Ombudsman. The code of conduct complaint form which explains the process does not specifically warn complainants that outcome is possible. And no action has been taken against Mr X under the Council’s policy on vexatious complaints either, which suggests the Council does not consider Mr X is vexatious in practice.
- I am satisfied the Council’s decision to say Mr X’s complaint was vexatious has caused him a significant injustice. He has described how anxiety affects him and how the lack of answers from the Council to his legitimate questions has caused him some distress. I also consider his time and trouble having to bring his complaint to the Ombudsman, after the Council chose to provide more explanation, should be recognised.
- By 9 February 2019, the Council has agreed to:
- Write to Mr X to apologise for calling his complaint vexatious when it could not justify doing so.
- Re-issue the decision notice on his complaint to remove the comment saying the complaint was vexatious.
- There was fault by the Council when it called Mr X’s code of conduct complaint vexatious without being able to justify doing so. This has caused him distress and put him to the time and trouble of having to bring his complaint to the Ombudsman.
Investigator's decision on behalf of the Ombudsman