Summary: Mr D complains about the way the Council considered his complaint that a councillor breached the code of conduct. The Ombudsman does not intend to investigate this complaint as we are unlikely to find fault in the Council’s actions.

The complaint

1. Mr D complains about the Council’s decision that a councillor has not breached the code of conduct. He says the Council:
• failed to consider the complaint within the specified timeframes
• failed to independently investigate his complaint
• failed to apply the balance of probabilities test; and
• failed to meet him to discuss his concerns
2. He wants the Ombudsman to direct the Council to appoint an independent person to investigate the complaint to what he considers to be a sufficient standard. And to direct the Councillor to not be involved in any policies or matters that may concern Mr D or his property.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

4. I considered:
• Mr D’s complaints to the Council
• the Council’s response to the complaint; and
• the Council’s procedures for dealing with complaints about councillors

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What I found

5. In October 2019 Mr X complained to the Council that one of its elected councillors has breached the code of conduct. His complaints related to several different incidents culminating in events which occurred in June 2019.
6. The council’s arrangements for dealing with complaints about councillors states the Monitoring Officer (MO) will assess each complaint against a published set of criteria. This includes the provision that a complaint must be made within 3 months of the event being complained about unless exceptional circumstances apply. If the MO decides there is no breach of the code, she will normally respond to the complainant within 28 days of receipt of the complaint.
7. In this case Mr D did not make his complaint within 3 months of the matters being complained about. However, as Mr D alleges the councillor bullied and victimised him, she decided exceptional circumstances applied.
8. In November, the MO wrote to Mr D asking for more information to clarify his complaint.
9. In March 2020, the MO decided the councillor had not breached the code of conduct. She wrote to Mr D confirming she had considered his complaints. Many of his allegations fell outside the complaints procedure for different reasons including:
• Allegations about the actions of an unelected 3rd party
• Allegations of criminal actions such as theft and assault
• Allegations of breaching of the Data Protection Act (the information Mr D alleged the councillor had acquired is not held by the Council)
10. The MO considered Mr D’s remaining complaints. She decided that in each of the incident the councillor was acting in his capacity as a private citizen, and not as a representative of the Council carrying out Council business.
11. In her response the MO confirmed she had sought the opinion of the Council’s Independent Person before concluding there was no breach of the code of conduct.

Assessment

12. Mr D says the MO failed to respond within the published timeframe. However, the procedures for dealing with code of conduct complaints says the MO will respond to the complainant within 28 days of receiving the complaint or seek additional information as required before making the decision.
13. The Ombudsman cannot question whether a council’s decision is right or wrong just because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
14. In this case the MO considered the complaint and sought further information from Mr D. She says she reviewed information provided by Mr D and a third party he referred to. She also spoke to the councillor concerned and key officers. She has also consulted the Council’s Independent Person. This is the correct procedure and the Council is entitled to make this decision.
15. Mr D wants the Ombudsman to direct the Council to appoint an independent investigator and to prevent the councillor from having any involvement in any policies or matters that may concern him or his property. The Ombudsman cannot require the Council to take such action.

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Final decision

16. I will not investigate his complaint. We are unlikely to find fault in the way the Council considered his complaint that a councillor has breached the code of conduct. Nor can we achieve the outcome he is seeking.

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Investigator's decision on behalf of the Ombudsman