Summary: We will not investigate Ms X’s complaint as we are unlikely to find fault in the way the Council dealt with her complaint that a councillor breached the Council’s code of conduct. Nor is further investigation likely to lead to a different outcome.

The complaint

1. The complainant, who I will refer to as Ms X, complains the Council refuses to investigate her complaint that the leader of the council breached the code of conduct.
2. She says this damaged her reputation and caused stress at work. She wants the Councillor to write a full retraction, apologise to her and step down as leader of 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 we would find fault
• it is unlikely further investigation will lead to a different outcome

(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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered:
• the information provided by Ms X including the Council’s response to her complaint
• information provided by the Council
• the Council’s arrangements for dealing with complaints that a councillor has breached the code of conduct.
7. Ms X’s comments on the draft version of this decision.

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What I found

8. Ms X complained to the Council that the Leader of the Council had made untrue allegations about her to her employer. She also stated the Councillor had made libellous and untrue claims about other people who are no taking legal action.
9. The Council’s rules for dealing with code of conduct complaints says

“The Monitoring Officer will review the complaint and following consultation with the Independent Person, take a decision (initial assessment) as to whether it merits investigation, or another course of action. This decision will normally be taken within 20 working days of receipt of a complaint.”

10. It also says:

“The Monitoring Officer may in exceptional circumstances refer the question of how to proceed to a sub-committee of the Standards Committee.”

11. The Council says Ms X’s complaint was one of four complaints made against the Councillor which it considered were linked.
12. The Council says the Monitoring Officer decided to put the matter to the sub-committee to decide the next step, rather than making the decision himself in consultation with the Independent Person. This was because of the nature of the complaints, the subject matter, and the fact they were against the leader,
13. The sub-committee was formed of two councillors from an alternative political party to the Leader and the Independent Person. Having considered the complaint, which included the evidence provided by Ms X and the Councillors comments on her allegation the sub-committee decided not to take further action on the complaint.
14. Having followed the correct procedure for considering such complaints, this is a decision the Council is entitled to make.
15. The Council advised Ms X of the outcome of her complaint. It correctly informed her there is no right of appeal to decisions on code of conduct complaints. It has confirmed that because of the subject matter and due to data protection concerns, it has only disclosed limited information to Ms X.

Assessment

16. 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.
17. The Monitoring Officer considered Ms X’s complaint and consulted the independent person before deciding to refer to the matter to the sub-committee of the Standards Committee for a decision on whether to take further action. This is the correct procedure. We cannot question whether a council’s decision is right or wrong because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
18. If Ms X believes the Council is withholding information that she has a right to see, she can ask the Information Commissioner’s Office (ICO) to consider the matter.
19. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes failing to disclose information someone is entitled to.
20. Where someone has a complaint about access to information, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. The ICO has far wider powers than the Ombudsman if it finds a council has failed in its duties as a data controller, including enforcement notices and fines. The Ombudsman has no such powers. Ms X should therefore contact the ICO because it is the appropriate body to deal with her concerns on this point.

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Final decision

21. I will not investigate this complaint. The Council followed it published procedure before it decided not to take further action on Ms X’s complaint. We are therefore unlikely to find fault in the Council’s actions. Nor is further investigation likely to lead to a different outcome.
22. If Ms X believes the Council is withholding information which she believes she is entitled to I consider it reasonable to approach the ICO.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman