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Birmingham City Council (19 016 550)

Category : Other Categories > Councillor conduct and standards

Decision : Upheld

Decision date : 25 Aug 2021

The Ombudsman's final decision:

Summary: Mr D says the Council failed to follow procedures when assessing his complaints about Councillors. The Ombudsman has found instances of fault by the Council. As a result, he has upheld the complaint and completed the investigation because the Council agreed to the recommended actions.

The complaint

  1. The complainant (whom I refer to as Mr D) says the Council’s decisions on his complaints about various Councillors are wrong. He feels the Council did not follow its procedures.

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What I have investigated

  1. I have looked at whether the Council considered the complaints in line with its procedures. I am looking at events from April 2019 to February 2021. I set out below why I am not considering other parts of the complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  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)
  3. We must 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

  1. I have carefully considered the information provided by Mr D. I asked the Council questions and examined its response.
  2. I shared my draft decision with both parties.

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What I found

What happened

  1. Mr D has made seven complaints to the Council in the period I am investigating.

Complaint 1

  1. On 17 April 2019 Mr D complained to the Council about a Councillor (Mr A) divulging sensitive information. On 7 July Mr D chased the Council for a reply. I have no evidence to show what actions the Council took until 5 May 2020 when it issued a draft report not upholding the complaint. The Council emailed its draft decision to Mr D. The investigation was subsequently closed.

Complaint 2

  1. Mr D complained about a Councillor’s actions (Mr B) to the Council on 21 November 2019. He said false allegations had been made. On 20 December, the Council shared the complaint with Mr B. It noted more information was needed from Mr D. In January 2020 Mr D chased up the Council. On 19 February, the Council asked Mr D for more information and sent a further letter on 16 March. No reply was received, and the case closed.

Complaint 3

  1. At the start of 2020 Mr D complained to the Council about Mr A misleading chambers. On 5 February the Council sent the complaint to Mr A for comments. A draft report was issued 16 March. Mr D disputed the report that month. The Council then issued a second draft report in May, and this was sent to Mr D on 1 June. Mr D submitted his comments disputing the decision. These were considered and the case closed on 26 June. The Council sent Mr D an explanation of its decision.

Complaint 4

  1. On 6 March 2020 Mr D complained about another Councillor (Mr C) and his actions in May 2019. At the start of April, the Council received comments from Mr C. It issued a draft report on 1 June and received comments from Mr D on 3 June. Those were considered and the case closed.

Complaint 5

  1. On 27 April 2020 Mr D complained about Mr C again. The Council sought comments from Mr C and wrote to Mr D in July explaining there would be no further action because the complaint was not something it could consider under the Member’s Code of Conduct. Instead, it was a service complaint relating to Council operations.

Complaint 6

  1. On 19 August 2020 Mr D complained to the Council about Mr C and an alleged breach of covid-19 regulations. The Council asked Mr C for his comments in September. It then had to put the case on hold pending any Police involvement. In December it was able to issue a decision and explained to Mr D why no further action would be taken.

Complaint 7

  1. On 11 November 2020 Mr D made a further complaint about Mr C breaching covid-19 regulations. The Council has told me, in May 2021, it realised it had failed to take further action on this case. It has not told me if a final decision has been issued to Mr D.

What should have happened

  1. The Council can consider complaints about the actions of a Councillor and whether they have breached the Code of Conduct. The complaint is first looked at by the Deputy Monitoring Officer to assess if it is a valid complaint. The Councillor complained about is notified. If the complaint is not valid the Council notifies the complainant and the Councilor and will close the case. If it is a valid complaint the Monitoring Officer will proceed to an initial investigation. The Council aims to complete this stage within 28 days unless further information is needed. A draft report is then produced and considered by an Independent Person and the Monitoring Officer. The report is subsequently shared with the complainant and Councillor who can submit their comments. Any responses are examined and if appropriate the Council can close the case with a final report.
  1. If a complaint is considered by the Council to be about operational issues it will not be investigated as a breach of the Code of Conduct. Instead, it will be handled as a service complaint.

Was there fault by the Council

  1. In the majority of the complaints made by Mr D the Council has acted in line with its procedures. However, there is evidence of fault in two cases:
    • Complaint 2: The Council noted it needed additional information from Mr D on 20 December 2019. However, this was not requested until 19 February 2020. I do recognise that Mr D failed to reply to the requests for information. However, I have seen no explanation for this delay and consider the Council to be at fault;
    • Complaint 7: The Council has acknowledged fault in this matter because it failed to pick up the case submitted in November 2020 until May 2021. It is unclear whether a decision has been issued to Mr D.
  2. I note the Council says it has received a high level of contact from Mr D including him emailing Officers not involved in the process, and some complaints link up to previous cases making it more complex to respond. That said, this does not remove the need for the Council to respond in a timely manner or, at a minimum, keep Mr D updated and explain reasons for delays. In the two complaints above I have failed to be provided with evidence showing the Council did this.
  3. I have not found fault in how the Council considered the other five complaints. Each was looked at in line with procedures. Mr D may disagree with the decisions reached by the Council, but they are decisions it has a right to take.

Did the fault cause an injustice

  1. The faults identified meant Mr D had to wait longer than expected for a final response on some complaints.

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Agreed action

  1. In order to remedy the injustice to Mr D, the Council has agreed to write to Mr D apologising for the faults identified and ensure a final response on Complaint 7 is sent to Mr D within four weeks of our investigation being completed.

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Final decision

  1. I have completed the investigation and upheld the complaint.

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Parts of the complaint that I did not investigate

  1. The Ombudsman cannot investigate the subject matter of complaints made about Councillors. Our role is solely to look at whether the Council handled the complaint in line with its policies and procedures.
  2. The Ombudsman expects a complaint to be made within 12 months of the matter arising.

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Investigator's decision on behalf of the Ombudsman

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