Summary: Mr C complains the Council wrongly created 31 complaints without his consent or knowledge during its consideration of a single code of conduct complaint he had made about a parish councillor. Mr C says he was prosecuted for harassment of the councillor and although the court dismissed the case, he incurred legal costs and both he and his wife suffered unnecessary upset. The Ombudsman has found the Council at fault in the way it dealt with Mr C’s code of conduct complaint and considers the agreed actions of an apology, proper response and £250 are enough to remedy Mr C’s injustice.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council wrongly created 31 complaints without his consent or knowledge during its consideration of a single code of conduct complaint he had made in September 2017 about a parish councillor.
2. Mr C says because of the Council’s fault he was prosecuted for harassment of the councillor. Although the court dismissed the case Mr C says he incurred legal costs of £508.74 as the court capped his costs award and both he and his wife suffered unnecessary upset and social opprobrium.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and relevant legislation

6. New arrangements for handling cases about member conduct and standards came into force from 1 July 2012 under the Localism Act 2011. Under sections 28(6) and (7) of the Act, authorities now must have in place “arrangements” under which allegations that a member or co-opted member of the authority has failed to comply with its code of conduct will be investigated. Arrangements must also be in place setting out how decisions on allegations can be made. 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 code however must be ‘Nolan –based’ and consistent with the principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
7. The arrangements for dealing with complaints must include the appointment of a least one Independent Person (IP). The IP has an advisory role and must be consulted before the authority takes a decision on an allegation it has investigated. The views of the IP can also be sought by the authority at any other stage after receipt of a complaint.
8. Under section 5 of the Local Government and Housing Act 1989, relevant authorities have a duty to designate an officer as Monitoring Officer to ensure the lawfulness and fairness of authority decision making. The Monitoring Officer has a specific duty to ensure that the authority, its officers and its members maintain the highest standards of conduct. Monitoring Officers therefore usually have a pivotal role in dealing with member complaints.
9. Complaints that a member has failed to comply with the code of conduct should be dealt with in accordance with the authority’s agreed procedure. As an authority can make its own arrangements, there may be procedural differences between authorities. In general, however, the Monitoring Officer will initially assess complaints and decide whether it merits formal investigation. This is normally done in consultation with the IP.
10. 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 it would not be in the public interest to pursue it further.
11. If an authority decides to formally investigate a complaint, the procedure may involve the Monitoring Officer or another Investigating Officer and a Standards Committee/Hearings Panel. Before the authority makes a decision on a complaint it has decided to investigate, the IP must be consulted.
12. The Ombudsman cannot investigate parish councillors but we can look at how a council investigates a complaint about a parish councillor acting in their capacity as a councillor.

Key events

13. Mr C’s Code of Conduct complaint to the Council dated 21 September 2017 was a letter headed as a complaint against a named Councillor and was about the Councillor’s alleged knowledge of a previous Clerk to the Parish Council misleading other Councillors but taking no action. Mr C set out the four principles of the Code he considered had been breached and why. Mr C also attached four appendices as evidence which was email correspondence obtained under the Freedom of Information Act.
14. The police requested information from the Council on 19 December 2017 about any complaints made by Mr C and the named Parish Councillor and details of any investigation by the Council and the outcome(s).
15. The Council does not confirm to Mr C that the matter is to be investigated until 18 January 2018 and then sought an interview with Mr C. The Council says the reason for the delay between 21 September 2017 and 18 January 2018 was due to staff illness and the time taken to appoint an independent investigator. I consider the delay to be excessive and constitutes fault which is compounded as the Council did not keep Mr C informed of the reasons for the delay.
16. The Council says the independent investigator sought an interview with Mr C at the outset of their investigation as they wanted to gain a thorough overview of the matter as it was considered the complaint had become complicated by earlier interactions. The independent investigator met with Mr C on 24 January 2018. The Council has not been able to provide any notes from this meeting. Given the Council’s stated reasons for the meeting and its substantive nature, I consider this failure of record keeping is further fault.
17. The independent investigator emailed the Council the day after the meeting to note she had received a lot of background information from Mr C which she had explained she was not reconsidering and that the submitted complaint is “extremely narrow.” The independent investigator had sought further information from Mr C after the meeting. The Council says this request was made as further clarification was needed.
18. The police sent a reminder to the Council on 30 January 2018 for the information sought in December. The police provided the relevant data request form on 6 February. The Council provided the requested information on 19 February 2018.
19. Mr C provided a document to the Council dated 1 February 2018 which was headed as ‘index of issues for’ (the independent investigator) and purported to provide 31 examples of action or conduct against the Code of Conduct or Nolan Principles. However, it is noted this document provided a significant amount of information much of which related to historical issues rather than the complaint as made. Indeed, the first numbered example does not appear to be a complaint but rather confirmation that Mr C was complaining against the Parish Council as a whole rather than personally against the named Councillor. The investigator wrote to Mr C on 9 February to say they were seeking instructions from the Council as ‘clearly this matter is larger than the issue I was asked to consider’.
20. The Council has not been able to provide details of the instructions sought or advice provided. However, there is an email to the Council also on 9 February from the independent investigator which says she has received a pack of evidence from Mr C containing 31 allegations and that this is new information and asks if the Council wants her to review these to determine if there are potential breaches of the Code of Conduct.
21. The independent investigator produced a preliminary report to the Council dated 21 February 2018. This document addresses Mr C’s September 2017 Code of Conduct complaint directly. The recommendation was that that it was not in the public interest for any further action given the passage of time since the events and absence of adverse consequences. There is no record the Council sent this document to Mr C at the time.
22. The Council appointed a Deputy Monitoring Officer (DMO) on 27 February and the investigation was not completed until July 2018. The Council does not provide a reason for the delay between February and July in providing an outcome.
23. The Council says it appointed a new DMO in response to the escalating nature of the complaint and the fact that the Council’s Monitoring Officer was conflicted by knowing the principal complainants. The Council says the external DMO was appointed to examine the documents supplied by Mr C to decide if there was the scope for a formal investigation.
24. The Council did not contact Mr C following his meeting with the independent investigator and receipt of his February 2018 document to confirm the scope of the investigation or clarify the complaint being made. The Council suggests it was not necessary to do so as it had been dealing with the overall issue since 2015. I consider this is why such clarification was important given the complexity of the historical issues and the rather simple nature of the original complaint made in September 2017. I consider the failure to do so constitutes fault.
25. Mr C was made aware the Council was investigating 31 complaints against the Parish Councillor as a result of his Code of Conduct complaint at a Parish Council meeting in June 2018. The police also advised Mr C that legal proceedings had been started against him.
26. The police requested from the Council on 25 June 2018 a copy of Mr C’s code of conduct complaint against the named Parish Councillor dated 1 February 2018 and the Council’s decision notice. The Council provided a copy of Mr C’s complaint and its decision notice to the police on 3 July. The correspondence notes the decision notice had not been sent to Mr C at that time but the Parish Councillor had commented on a draft version. I consider that the opportunity to comment on a draft version should be offered to both parties to ensure even handedness. I consider the failure to do so constitutes fault.
27. A decision notice was sent to Mr C dated 5 July 2018. This does not refer to Mr C’s original complaint of 21 September 2017 but does refer to his February document which is described as setting out 31 examples of conduct which allegedly demonstrated the named Councillor had failed to comply with the Code of Conduct or the Nolan Principles.
28. Mr C emailed the Council on 9 July seeking an explanation for how it had arrived at the 31 complaints and to ask why its response did not answer his September 2017 complaint which had been a single issue matter. The Council did not provide a response.
29. Mr C made a formal complaint to the Council in March 2019. The Council’s initial response in March does not directly address his complaint. Mr C confirms in April that he is complaining about the false attribution to him of 31 complaints. The Council responded in May to explain why it treated his complaint information by dividing it into 31 complaints/themes/allegations and accepted he had not submitted the information in this way. The Council stated it was not involved in any court action or prosecution. Mr C maintains that if the Council had provided this response earlier he could have stopped the court action against him.
30. Based on the information provided, it is clear the Council did not provide a formal response to Mr C’s September 2017 Code of Conduct complaint. Instead the Council widened the scope of both the original complaint and its investigation without checking this with Mr C. I consider it would have been prudent for the Council to do so before appointing the Deputy Monitoring Officer but certainly at some point during the subsequent investigation. This would have allowed Mr C an opportunity to clarify what he was asking the Council to investigate.
31. The Council’s subsequent failure to provide Mr C with an opportunity to comment on a draft of its decision is particularly regrettable as this would have allowed Mr C to highlight the response did not address his September 2017 complaint and dispute the Council’s interpretation of his additional February 2018 background document as being 31 additional complaints against the named Councillor. This would also have allowed Mr C to provide this information to the police. I cannot say, even on a balance of probabilities, if such information would have affected the actions of the police or the legal proceedings. I note the case was subsequently dismissed. The Council has also subsequently amended its procedure so a draft is sent to both parties and the Ombudsman welcomes this action.

Agreed action

32. The Council should write to Mr C within one month of my final decision to apologise for the faults identified above which include: unacceptable delays; failure in record keeping; failure to respond to correspondence; not providing an even handed opportunity to comment on a draft of its decision; and not providing a formal response to the complaint as made.
33. The Council should pay Mr C £250 within one month of my final decision to recognise the upset caused by the faults identified above and his time and trouble in pursuing the matter.
34. The Council should write to Mr C within six weeks of my final decision to provide a formal response to his Code of Conduct complaint dated 21 September 2017 which addresses the issues raised in that complaint and appendices alone. It would be reasonable for this to be based on the independent investigator’s preliminary report dated 21 February 2018 if the Council is satisfied this provides an adequate response.
35. The Council should review its record keeping procedures relating to the investigation of Code of Conduct complaints within three months of my final decision to ensure an adequate audit trail is maintained.
36. The Council should review its procedure for investigating Code of Conduct complaints within three months of my final decision to ensure there is an agreed statement of complaint to inform the scope of any subsequent investigation and response.

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Final decision

37. I have completed my investigation as I have found fault causing Mr C an injustice. I consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman