Southend-on-Sea City Council (20 001 361)

Category : Other Categories > Councillor conduct and standards

Decision : Not upheld

Decision date : 19 Jan 2021

The Ombudsman's final decision:

Summary: The Ombudsman does not find fault with the way the Council responded to Mr B’s complaint that a Councillor had breached the members’ codes of conduct.

The complaint

  1. Mr B complains about the way the Council handled his complaint about a Councillor. He says the Council:
    • Failed to deal with his complaint in accordance with the Council’s complaint procedure.
    • Delayed providing its decision.
    • Failed to apply its policy correctly because the Monitoring Officer did not address the basis of his complaint.
    • Misunderstood and incorrectly described the police involvement in the case.
  2. Mr B says this caused him distress and frustration because he does not feel the Council has carried out an investigation in accordance with its policy and procedure. He says this causes doubt about its decision.

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The Ombudsman’s role and powers

  1. 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’. 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)
  2. 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. 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 reviewed the information Mr B provided with his complaint. I made enquiries with the Council and considered its response with the relevant law and guidance.
  2. Mr B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

  1. The Localism Act 2011 places a duty on relevant authorities (Councils) to handle cases about member conduct and standards.
  2. Under sections 28(6) and (7) of the Act, Councils now must have in place “arrangements” for investigating allegations a council member or co-opted member has failed to comply with its code of conduct.
  3. It is for the Council to decide the details of its code of conduct and the arrangements for dealing with complaints about member conduct. The code must be ‘Nolan –based’ and consistent with the principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
  4. The arrangements for dealing with complaints must include the appointment of a least one Independent Person (IP). The IP has an advisory role and must be consulted before the authority takes a decision on an allegation it has investigated. The views of the IP can also be sought by the authority at any other stage after receipt of a complaint.
  5. Complaints that a member has failed to comply with the code of conduct should be dealt with in accordance with the Council’s agreed procedure. The Monitoring Officer will usually carry out an initial assessment of complaints and decide whether it merits formal investigation. This is normally done in consultation with the IP.

Council policy- complaints against members rules

  1. The Council’s policy says:
    • The Monitoring Officer will review every complaint received and may consult with the Independent Person before deciding whether to investigate.
    • The decision will normally be made within 28 working days.
    • The complaint will be considered in accordance with Council’s assessment criteria.
    • The Monitoring Officer will inform the complainant of the decision and the reasons. There is no right of appeal.
    • The Monitoring Officer may ask for additional information to make a decision.

What happened

Background

  1. Mr B reported an alleged breach of electoral law by a Councillor to the police. The investigation concluded in October 2019 and no further action was taken against the Councillor.
  2. The Councillor also made a report to the Police. They reported Mr B harassed them by sending letters about the alleged breach of electoral law. The police wrote to Mr B about the allegation of harassment.

The complaint chronology

  1. In January 2020 Mr B complained to the Council about the Councillor. He complained the Councillor breached the members code of conduct when they made comments about Mr B during a council meeting in December 2019. Mr B says the comments amounted to bullying and harassment.
  2. Mr B also requested the Council report the alleged electoral law breaches to the police. He says the comments made in the Council meeting amounted to an admission in relation to the alleged breach.
  3. The Council sought legal advice about Mr B’s complaint.
  4. The Council obtained additional information and sought further legal advice in March 2020.
  5. The Council consulted with its Independent Person.
  6. It wrote to Mr B on 13 March 2020 with its decision. It said the case did not merit further investigation and gave its reasons.
  7. Mr B remained unhappy and complained to the Ombudsman.

My findings

  1. My investigation considered the way the Council responded to Mr B’s complaint about a council member. It did not investigate the substantive issues of the complaint Mr B made to the Council in January 2020.
  2. I do not find fault with the way the Council handled Mr B’s complaint about a member’s conduct.
  3. I have considered the Council’s response against its policy and there was no fault in the way it reached its decision not to investigate Mr B’s complaint further. Where there is no fault in the way the Council made its decision we would not question the professional judgement of the decision maker.
  4. I will address Mr B’s specific complaints below.

The policy does not provide for a detailed investigation to be carried out by the Monitoring Officer

  1. Mr B feels the Monitoring Officer should not have conducted the enquiries at the assessment stage and that the level of investigation at this stage suggests it met the threshold for a full investigation.
  2. The Council says it carried out a more detailed information gathering process at the initial stage because of the complexity of the case. This included obtaining legal advice. We would not criticise the Council for this and although it may be done by exception the Council explained why it felt this case warranted this action.
  3. The views of the Independent Person can be sought at any stage after the receipt of the complaint. The Monitoring Officer asked for the Independent Person’s view on the complaint once all the information had been gathered and the IP agreed with the Monitoring Officers view.
  4. Mr B feels very strongly the Council obtaining legal advice from a specialist barrister at the assessment stage directly contradicts its decision the case did not merit further investigation. The Council explained its reasons for seeking legal advice and this is supported by its instruction to counsel. It is not fault for the Council to seek legal advice to inform its decision making and we would not criticise it for doing so.

The Council failed to provide its response within 28 days

  1. The Council accepts it took longer than 28 working days to decide whether to investigate Mr B’s complaint. It says this was because of the complexity of this case.
  2. Section 4.2 of the complaints rules says a decision will “normally” be taken in 28 working days of receipt of the complaint. This allows for cases where there may be reasons it is not possible to respond in this timeframe. The delay in the Council’s response was not due to fault. The assessment stage took longer because of the actions the Council decided it needed to take to make its decision.

Failed to apply its policy correctly because the Monitoring Officer did not address the basis of his complaint

  1. There was no fault in the way the Council considered Mr B’s complaint. Mr B says the Council failed to address his complaint properly because it was “diverted by an issue relating to Councillor X” which was linked to the alleged breach of electoral law not his complaint about standards.
  2. The Council says the two issues were inextricably linked and both issues had to be dealt with in the correct sequence to be handled correctly and fairly.
  3. I agree the matters are linked and the Council needed to consider both in its decision making. Mr B raised both issues in his email to the Council in January 2020.

Misunderstood and incorrectly described the police involvement in the case

  1. I did not see any evidence of this in my investigation. As part of the assessment stage the Monitoring Officer sought clarification about the police involvement in this case.
  2. The Council points out in its response that it did not make a finding on the substantive complaint because it decided the case did not merit further investigation.

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Final decision

  1. I do not find faut with the Council.

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Investigator's decision on behalf of the Ombudsman

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