Essex County Council (18 016 489)

Category : Other Categories > Councillor conduct and standards

Decision : Not upheld

Decision date : 11 Jul 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to investigate his complaint that a Councillor had breached its Code of Conduct for Members. The Council is not at fault. It considered the information Mr X submitted appropriately and there was no fault in how it reached its decision not to start an investigation.

The complaint

  1. Mr X complains the Council failed to investigate his complaint that a Councillor had breached its Code of Conduct for Members. He says the Monitoring Officer did not sufficiently consider all the information he provided when making the decision not to investigate. He wants the Council to investigate the Councillor’s conduct.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read Mr X’s complaint and discussed it with him on the phone.
  2. I made enquiries of the Council and considered the information it sent me.
  3. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Background information

  1. The Localism Act 2011 says councils must have a Code of Conduct for elected Councillors. They must also have a process in place to consider allegations that a Councillor has not complied with the Code.
  2. Essex County Council has a Code of Member Conduct and a Procedure for the Investigation and Hearing of complaints against Councillors (the Procedure). It says the Monitoring Officer will first decide whether a complaint can be considered under the Procedure. This will include consideration of whether, if proven, the alleged misconduct would amount to a breach of the Code of Conduct.
  3. It says complaints will not be accepted under this procedure if the matter:
    • Is not a complaint under the Code of Conduct, but rather a complaint about Council services;
    • Is about a decision taken by the Councillor concerned that the complainant simply disagrees with.
  4. If the Monitoring Officer decides the complaint could be considered under the Procedure, the Monitoring Officer will decide whether the complaint should be investigated.
  5. If they decide the complaint should be investigated, the Monitoring Officer has delegated power to investigate.
  6. If the Monitoring Officer decides the complaint should not be investigated, the Monitoring Officer will write to the complainant to tell them and to invite further representations. The Monitoring Officer will make a final decision after considering the complainant’s response.
  7. The Ombudsman’s role is limited to considering the Monitoring Officer’s handling of the complaint made by Mr X that the Councillor breached the code of conduct. We cannot consider the actions of the Councillor.

What happened

  1. In December 2018, Mr X complained to the Council. He said a Councillor had breached the Code of Conduct by making false, misleading and inaccurate claims to the public.
  2. The Monitoring Officer considered Mr X’s complaint and whether they could and should investigate it under the Procedure. They decided:
    • There was no evidence that the Councillor knew he was making inaccurate statements at the time of making them;
    • If the Councillor’s statements were based on professional advice, it was unlikely to be a breach of the Code of Conduct;
    • Mr X’s complaint appeared to be more about Council services, rather than the Councillor specifically.
  3. The Monitoring Officer decided that, based on evidence they had seen, they should not investigate the complaint under the Procedure. They wrote to Mr X to tell him this. They gave Mr X two weeks to submit comments and make further representations.
  4. In January 2019, Mr X asked for more time to submit comments and further evidence. The Monitoring Officer agreed to allow him a further week.
  5. Mr X submitted further comments and representations.
  6. The Monitoring Officer considered the comments and evidence submitted by Mr X. This included listening to a recording of a meeting attended by the Councillor and listening to what the Councillor said at this meeting. They decided the evidence presented did not amount to a breach of the Code of Conduct and Mr X’s allegations should not be formally investigated.
  7. They wrote to Mr X to tell him their final decision. Mr X was dissatisfied with this response and brought his complaint to us.
  8. In response to our enquiries, the Council said the Monitoring Officer has discretion whether to investigate a complaint, as set out in the Procedure. The Monitoring Officer decided the evidence did not support Mr X’s allegations and did not justify an investigation. The Council says this was its decision to make.

Analysis

  1. The Council investigated Mr X’s complaint in line with the Procedure. It appropriately considered all the information provided by Mr X.
  2. The Council decided there was insufficient evidence to support the allegation the Councillor had breached the Code of Conduct. It decided not to start an investigation.
  3. We cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. As there is no evidence of fault in how the Council reached its decision, I am unable to question the decision made.

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Final decision

  1. I have completed my investigation. I have found no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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