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Luton Borough Council (20 004 450)

Category : Other Categories > Councillor conduct and standards

Decision : Upheld

Decision date : 06 Sep 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council took too long to consider his complaint about councillor conduct. During my investigation, the Council acknowledged there were delays and has apologised. These are suitable actions to remedy the frustration caused to Mr X. Mr X also complained the Council failed to investigate his complaint properly. There was no fault in how the Council decided not to investigate Mr X's complaint. The Council has stated its complaints process could be clearer and is in the process of clarifying the procedures around councillor complaints. Therefore, I will not investigate this matter further as there is nothing more I could achieve.

The complaint

  1. Mr X complained:
      1. councillors who were directors of a Council-owned company failed to declare a conflict of interest and then voted on a motion about that company when it came to a full Council meeting; and
      2. the Council took too long to deal with his complaint about the above matter, and then refused to investigate it under its procedures for handling complaints against councillors.
  2. Mr X says that as a result, the directors acted against the interests of residents. He believes it is a conflict of interest when the directors of the Company vote at Council meetings about matters concerning the Company. He said the Council had agreed to allocate money to the Company to stop it going bankrupt and this should be spent on social services.

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What I have investigated

  1. I have investigated complaint 1 b). I have not investigated complaint 1a) and I explain why at the end of this decision statement.

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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 spoke to Mr X and considered his view of his complaint.
  2. I made enquiries of the Council and considered the information it provided.
  3. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Councillor Code of Conduct

  1. 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. It is for a council to decide which allegations to investigate and how to do so. However, if a council decides it is going to carry out an investigation, it must seek the views of an ‘independent person’. Recording or declaring an interest in certain activities are matters which come under the Code of Conduct.
  2. The Council’s Constitution outlines the procedures, in the form of a flow chart, followed by the Council when it receives an allegation against a councillor. This states there is an informal resolution stage which may include “potential for mediation, explanation, apology etc”. It then appears to show that all complaints will go to a sub-committee (the Local Assessment Panel) for consideration.

What happened

  1. The Council owns a business. Some of its councillors represent the Council as directors of the business. They do not receive a salary for this.
  2. In January 2020 a full Council meeting was held. Full Council meetings are when all elected councillors meet to discuss and vote on various issues.
  3. At meetings like this, councillors must declare whether they have an interest in any of the items on the agenda.
  4. On this occasion, one of the items on the agenda concerned the business. None of the councillors who are directors of the business declared interests. All but one of them voted on the item.
  5. Mr X was unhappy and later in January he complained to the Council. He thought the councillors who were also directors should have declared an interest in the item on the business
  6. In February 2020, Mr X met with the Council’s monitoring officer and completed a complaint form (it is the role of the monitoring officer to consider and investigate complaints about councillors).
  7. Mr X heard nothing further and in July he wrote to the monitoring officer for an update.
  8. Again he heard nothing and so he complained to us. We contacted the Council which told us the monitoring officer was due to speak to the independent person about Mr X’s complaint and would then write to Mr X with the outcome of that meeting. We closed the case on this basis.
  9. In February 2021, Mr X complained again to us to say he had still heard nothing from the Council.
  10. We started an investigation. During that investigation, the Council wrote to us and Mr X and stated the monitoring officer had carried out an initial assessment of Mr X’s complaint and decided there was no over-riding benefit in carrying out a formal investigation. The Council provided the facts of the case and the reason why it would not investigate which was “because the councillors had taken appropriate officer advice about declaration of interests. And, in any event, the inclusion of the directors did not make a material difference to the outcome of the decision at the meeting.” Because of this decision the Council said it did not need to seek the views of the independent person. The Council said it should have kept Mr X updated and apologised for not doing so.
  11. In later correspondence from the Council, it said “Whilst not particularly clear in [the Constitution] not all complaints are referred to the Local Assessment Panel. There has always been provision for an initial assessment and decision by the Monitoring Officer following receipt of a standards complaint, which is what happened here”. The Council said it was currently revising its Constitution, and this included further clarification of how it handled allegations against councillors. The Council said the aim of this was to make the process more transparent.

My findings

  1. The Council has acknowledged that it failed to keep Mr X updated or inform him of its decision not to investigate and has apologised for the delays. This is sufficient to remedy the injustice the Council caused him by this fault.
  2. The Ombudsman is not an appeal body for complaints about the conduct of councillors. Our role is to investigate whether councils followed the correct procedure to decide whether they should investigate such complaints in detail. Providing councils correctly follow the required decision-making procedure, we cannot criticise that decision.
  3. The law allows for councils to act with discretion in deciding whether to investigate a complaint about a councillor. The Council’s process states that there is an informal resolution stage which includes providing an explanation to the complainant. In this case the Council has explained in detail the events which led to the complaint and its reasoning on why it would not carry out a full investigation. It has therefore shown it had due regard to the particular circumstances of Mr X’s complaint when it decided it did not meet the threshold for formal investigation. The provision of an explanation of its reasoning to Mr X is in line with its process. There was no fault in how it came to this decision.
  4. Mr X states the Council’s procedures indicated his complaint would go to an independent person and then to the Local Assessment Panel.
  5. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. In this case the Council has acknowledged its current procedures are not clearly defined to show that if the monitoring officer decides the complaint can be resolved to their satisfaction at the informal resolution stage, it will not go to the panel and then full investigation. The Council said it is in the process of rewriting its procedures to provide clarity and it has sent me a copy of these draft procedures. I will, therefore, not investigate this matter further as I am satisfied with the action the Council proposes to take and I do not think an investigation could achieve anything further.

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Final decision

  1. There was fault leading to injustice. The Council has apologised for the injustice this caused and so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s complaint in paragraph 1a) above. The Ombudsman’s role is limited to considering a council’s handling of complaints against councillors in relation to alleged breaches of the code of conduct. We cannot consider the alleged breaches themselves.

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Investigator's decision on behalf of the Ombudsman

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