Summary: The Ombudsman will not investigate Mrs X’s complaint that a councillor breached its code of conduct. This is because we have not seen any evidence if fault in how the Council came to its decision.

The complaint

1. Mrs X complains the Council has refused to carry out a formal investigation into her complaint that a councillor breached the Council’s code of conduct.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered the information provided by Mrs X and the Council. I also considered the Council’s protocol for the assessing and deciding allegations of breaches of its members code of conduct.
4. Mrs X had the opportunity to comment on the draft version of this decision.

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What I found

Background

5. 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.
6. Torbay Council has a protocol for assessing and deciding on allegations of Breaches of the members code of conduct (the protocol). It says the Monitoring Officer will carry out an assessment of whether the alleged behaviour could amount to a breach of the Code of Conduct. It also says if the complaint is within one or more of the following criteria it will not be progressed further:
• if the complaint is considered to be the same or substantially the same as a complaint previously dealt with within the subject members term of office
• if the period since the alleged behaviour is so significant that it is considered to be inequitable, unreasonable or otherwise not in the public interest to pursue
• if the complaint is insubstantial
• if the complaint discloses a minor or technical breach of the Code that it would not be in the public interest to pursue
• if the complaint is or appears to be malicious, politically motivated, tit-for-tat or otherwise submitted with an improper motive
• if the complaint is not considered to disclose sufficiently serious potential breaches of the Code to merit further consideration
• if the complaint is covered by the Council’s policy on persistent and vexatious complaints
• if the member against whom the allegation has been made has remedied or made reasonable endeavours to remedy the matter
• if the complaint is about a person who is no longer a member of a relevant council and there are no overriding public interest reasons to merit further consideration
• the complainant has suffered no significant injustice or emotional upset from the breach complained about
7. If the monitoring officer decides not to progress the complaint further, they will write to the complainant to confirm this.

What happened

8. Mrs X complained to the Council. She said a councillor had:
• predetermined about a planning application
• had been rude and patronising during telephone calls
• had published an article in a local magazine in November 2018 stating planning permission had been granted for an hotel before the decision was published in March 2019
9. The monitoring officer considered the complaint according the Council’s protocol. She decided there was no evidence the councillor had breached the code. She wrote to Mrs X confirming the following:
• There is not enough evidence of predetermination. She considered the councillor made general comments in favour of regeneration and was predisposed but this does not amount to a breach of the code.
• There is not enough evidence the councillor was rude to Mrs X. The councillor confirms she had several long telephone conversations with Mrs X but because she is on the planning committee, she could not give Mrs X any detailed advice. This does not amount to breach of the code.
• The councillor was not on the planning committee which granted planning permission for the hotel in November 2018. The planning committee granted approval subject to completion of a legal agreement. The agreement was completed in March 2019 when the planning decision was published online. There is no evidence of a breach of the code.

Assessment

10. The Ombudsman considers how the monitoring officer responded to Mrs X’s allegations of a breach of the code of conduct. If the Council has properly considered the issue, he cannot question the merits of its decision.
11. From the information I have seen, the monitoring officer considered Mrs X’s complaint according to its protocol for handling such complaints. Having considered the concerns raised she decided there was no evidence the councillor had breached the member’s code of conduct. This a decision the Council is entitled to make.

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Final decision

12. I will not investigate this complaint. I have not seen any evidence of fault in the way the Council considered Mrs X’s allegation that a council had breached the code of conduct.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman