Decision : Upheld
Decision date : 20 Sep 2019
The Ombudsman's final decision:
Summary: Mr and Mrs B complain the Council did not investigate their complaint about a Councillor. They say the Councillor was rude and interrupted Mrs B when she gave her objection during a planning committee meeting. The Ombudsman finds fault in how the Council considered whether to investigate.
- The complainants, who I refer to as Mr and Mrs B, complain the Council refused to investigate their complaint about the behaviour of a Councillor. They say the Councillor was rude and interrupted Mrs B when she was giving her views at a planning meeting. Mrs B says this made her more nervous and intimidated about objecting to the application.
What I have investigated
- I have investigated how the Council took the decision about whether to investigate the Councillor’s behaviour. I have not investigated the Councillor’s behaviour for the reasons outlined in the final section of this statement.
The Ombudsman’s role and powers
- 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 reviewed the information Mr and Mrs B provided, including their complaint and the Council’s response. I considered the Council’s policy on complaints against Councillors, both the current version and the one in place at the relevant time. I sent a copy of my draft decision to Mr and Mrs B, and the Council, for their comments.
What I found
- The Council has a Code of Conduct (“the Code”) for Councillors, which is published on its website. It also has a policy for how it deals with complaints against Councillors, called the ‘Local Assessment Procedure’ (“the Procedure”). This sets out when it will investigate complaints and how.
- At paragraph 1.2 of the Procedure (adopted in March 2018) it says:
- ‘These arrangements provide for the Council to appoint at least one Independent Person whose views must be sought by the Council before it takes a decision on whether an allegation should be investigated, and whose views can be sought by the Council at any other stage, or by the Subject Member against whom an allegation has been made.’
- ‘The Monitoring Officer has the discretion not to proceed with complaints, including those:
- Relating to conduct in the distant past (over six months before);’
- ‘The Monitoring Officer will consult with an Independent Person before using this discretion and confirming their decision to you’
- Mr and Mrs B’s neighbour has submitted several planning applications for a development of new homes on land next to Mr and Mrs B’s house.
- Mrs B attended a planning committee meeting in February 2018, which considered one of the neighbour’s applications. Mrs B says she was called to speak without any introduction. She says the Chairman rudely interrupted her as she started to speak and shouted for her to stop talking. The Chairman then made further comments that showed he was not prepared to consider her objections.
- Mrs B says the Chairman’s actions made her feel embarrassed and more frightened of speaking at the meeting.
- In October 2018 Mrs B filed a complaint with the Council. The Council’s Monitoring Officer decided not to forward it for investigation. This is because Mrs B complained eight months after the committee meeting, any investigation would rely on the memories of those present and she must balance the resource involved in carrying out a formal investigation with the sanctions available.
- Mrs B says she had also written to the Council about the Chairman’s conduct, two months earlier. Mrs B says she only waited until October 2018 to raise a complaint as she was waiting for the Chairman to hear the next application so he could apologise to her, which he did not.
- Mrs B later complained asked if the Monitoring Officer consulted an independent person when deciding whether to investigate. The Monitoring Officer said she did not, as the Procedure adopted in March 2018 did not require her to do so.
- Paragraph 1.2 of the Procedure adopted in March 2018 says the independent person’s views must be sought by the Council before it decides whether to investigate an allegation.
- In deciding whether to exercise discretion, the Monitoring Officer made a decision about whether the Council would investigate an allegation. Therefore, in line with the Procedure, she needed to seek the views of the independent person.
- The update to Paragraph 4.4 of the Procedure in March 2019 adds additional clarity to the Council’s position. However, it does not change the position. The earlier policy is still clear that the independent person’s view must be sought. It is therefore fault that the Council did not seek their views.
- I cannot know whether, had the independent person given their views, it would have changed the decision. I therefore cannot say it caused an injustice in terms of loss of service. However, I recommend the Council apologise to Mrs B and re-consider whether to investigate, after obtaining the independent person’s views. The Council and independent person should consider whether to investigate on the basis they would have done at the point Mrs B complained in October 2018. They should not take into account the further passage of time that has elapsed since. It should also consider Mrs B’s correspondence two months earlier.
- The Council has agreed to, within a month of this decision:
- Apologise to Mrs B for not obtaining the independent person’s views.
- Obtain the independent person’s views on whether to investigate, based on the time Mrs B complained in October 2018.
- Re-consider whether to investigate the allegation, taking into account the independent person’s views, based on the time Mrs B complained in October 2018 and her earlier correspondence.
- The Council is at fault for not seeking the views of the independent person when deciding whether to investigate.
Parts of the complaint that I did not investigate
- I have not investigated Mr and Mrs B’s substantive complaint about the conduct of the Councillor. This is because I cannot say whether input from the independent person would have changed the decision not to investigate. It is the Council’s decision whether to investigate, once it has obtained the independent person’s views. It is best positioned to carry out the investigation if it decides to do so.
Investigator's decision on behalf of the Ombudsman