Summary: The Ombudsman will not investigate Mr X’s complaint as he is unlikely to find fault in the way the Council dealt with the code of conduct complaint about a councillor.

The complaint

1. Mr X disagrees with the Council’s decision that a councillor did not breach the code of conduct.
2. He says the councillor abused his position, spreading misinformation about Mr X’s business to prevent his application to lift a planning condition from succeeding. He wants the councillor sanctioned and an apology from the Council.

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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 that we would find fault.

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

4. 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

5. I considered the information provided by Mr X, including the Council’s investigation into his complaint and its final response.
6. He commented on the draft version of this decision.

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What I found

7. Mr X complained to the Council that a councillor had breached the code of conduct. He said the councillor had broken into his business property and verbally abused and threatened him. He also says the councillor tried to influence the outcome of his planning application
8. The Council’s rules for dealing with a complaint about a councillor says the Monitoring Officer (MO) will assess the complaint to check:
• that it is a complaint about an elected member of the Council
• the councillor was in office at the time of the alleged breach of the code
• if the complaint is upheld it would be a breach of the code
9. It also says the MO will then, in consultation with the Council’s Independent Person (IP) decide if any action is needed and if further investigation is required.
10. Once an investigation has been completed the MO will, again in consultation with the IP, decide whether the code has been breached and if so what action to take.
11. The Council says the MO in consultation with the IP decided further investigation of Mr X’s complaint was needed.
12. In his report, the investigating officer confirms he interviewed the complainant and the councillor about the incident where Mr X alleged the councillor broke into his business and was aggressive and abusive. He also confirmed he watched CCTV footage of the incident. The officer also interviewed the Council officer on duty at the planning committee meeting where Mr X alleges the councillor tried to influence the committee.
13. The report details the investigating officer’s findings. Mr X runs a gaming venue in a precinct. It is licensed by the Council. The planning permission allowing Mr X to operate the business includes a condition restricting the use of the main door. It says the main entrance will not be used after 11pm and that all access after that time will be through the rear door. Mr X applied to have the condition removed.
14. The councillor lives in the flats above the precinct. Since the application to remove the planning condition, he has been lobbying neighbours to object to the application. At the Development Control Committee, the councillor was seen speaking to the committee members before meeting. He was asked to leave the committee because he was a council member with a personal interest in the outcome of the application.
15. The councillor also visited Mr X’s business property. It was closed but he let himself in through the unlocked rear fire door. He confronted Mr X objecting to the application because of noise disturbance from the business to the flats directly above and the vicinity by noise from customers arriving and leaving the premises. This conversation is recorded on CCTV and has been reported to the police.
16. The report says the officer watched the CCTV footage. It says the councillor arrived at the front entrance to Mr X’s business, but the door is locked. He then moves to the rear fire exit and enters the building. Internal footage shows him speaking to Mr X and discussing the use of the front entrance. Mr X asks the councillor to leave and escorts him to the rear fire exit. Their conversation continues outside. The complainant states the use of the front door is needed for fire safety purposes and the planning application is going ahead to remove the condition. The councillor is heard referring to other councillors. He also says “If I’m woken, I’ll come down and see you. If others are woken, we’ll come down and see you and deal with it another way.”
17. The report states the officer’s findings from interviews with other councillors and officers. It also confirms the details of Mr X’s complaint.
18. The officer interviewed the councillor. He confirmed he visited Mr X’s business because he lives close by and had been woken up by noise from Mr X’s customers.
19. Having reviewed the information that he had gathered, the investigating officer concluded the councillor visited Mr X as a private individual who had been disturbed by noise. He was not acting as an elected councillor representing the Council. The officer recommended a finding of no breach of the code of conduct.
20. The report also considers Mr X’s allegation that the councillor had tried to influence the outcome of the planning meeting. It says the councillor attended the meeting intending to object to Mr X’s application. He confirmed he spoke to the attending officer, not members of the planning committee. He was asked to leave the meeting as he had a prejudicial interest in the outcome of the application. He left the meeting. The investigating officer recommended a finding of no breach of the code of conduct.
21. The MO, in consultation with the IP, considered the report. She decided the councillor was acting as a private individual when he visited Mr X’s business. Therefore, the code of conduct was not engaged.
22. The MO did not uphold Mr X’s complaint that the councillor had tried to influence the planning committee.
23. The Ombudsman does not offer a right of appeal against a council’s decision on member conduct complaints. But we can consider if there was fault in the way the Council considered the complaint.
24. The Monitoring Officer considered Mr X’s complaint, the investigating officers reported and consulted the independent person before deciding the councillor had not breached the code of conduct. This is the correct procedure and the Council is entitled to make this decision. The Ombudsman cannot question whether a council’s decision is right or wrong because the complainant disagrees with it. He must only consider whether there was fault in the way the decision was reached.

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Final decision

25. I will not investigate this complaint. We have not seen evidence of fault in the way the Council considered Mr X’s complaint, investigated his concerns, and came to its decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman