Summary: A man complained that the Council did not properly investigate his allegation that a Councillor had breached its Code of Conduct for Members, and unreasonably failed to take further action against the Councillor. But we do not have grounds to investigate this matter because there is no sign of fault by the Council which caused the man a significant injustice.

The Ombudsman’s role and powers

2. 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 an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

3. 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)

How I considered this complaint

4. I considered the information Mr X provided with his complaint and his comments in response to a draft version of this decision. I also took account of documents from the Council about its investigation of Mr X’s complaint regarding Councillor Y, and its arrangements for dealing with allegations about breaches of the Code.

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What I found

5. In 2019 there was an incident involving Mr X and one of his neighbours (‘Mr Z’) after Mr Z tried to remove a fence outside Mr X’s property. Mr X said Mr Z told him that Councillor Y had given him authority to remove the fence.
6. Mr X and Councillor Y then had an exchange of messages on a social media site. Councillor Y denied he had authorised Mr Z to remove the fence. But Mr X was not satisfied with Councillor Y’s responses. Mr X subsequently complained to the Council about Councillor Y’s conduct and the way he had responded to Mr X’s messages. Mr X also accused Councillor Y of bias on the basis he was treating Mr Z more favourably than other local residents.

The Council’s complaints procedure

7. The Council has published arrangements for dealing with a complaint that a Councillor has breached the Code.
8. The arrangements say a complaint is considered at first by the Council’s Monitoring Officer (MO) who will carry out an initial assessment to decide if the matter should be formally investigated. As part of this assessment the MO will seek comments from the Councillor in question, and may go back to the complainant for additional information.
9. By law, councils must appoint an Independent Person whose views they have to seek before making a decision on a Code of Conduct complaint they are investigating. The Council’s arrangements say the MO may also consult with the Independent Person at the assessment stage, if this is considered appropriate.
10. In addition the Council’s arrangements say that, in making a decision about whether a complaint should be investigated, the MO will apply the Council’s published assessment criteria. Both parties will then be advised of the MO’s decision together with the reasons for that decision. In response to a complaint the MO may decide to take no further action, seek an informal resolution or appoint an Investigating Officer to carry out a formal investigation.

What happened

11. In Mr X’s case the Deputy Monitoring Officer (DMO) dealt with the complaint in the MO’s absence. The DMO informed Councillor Y about the complaint and then interviewed him to obtain his comments in response. Mr X also provided further information about his complaint issues. The DMO subsequently sought the views of the Independent Person before making a decision.
12. But the DMO concluded that, although Mr X had made serious allegations, there was no evidence to substantiate them and no prospect of obtaining such evidence. As a result the DMO decided there was insufficient information to warrant an investigation, and no further action under the Code was possible or required.

Analysis

13. Mr X was dissatisfied with this outcome. But I am not convinced that we have grounds to start an investigation of his complaint about this matter.
14. First, we have no jurisdiction to investigate the actions of Councillors themselves unless they are carrying out an administrative function of the Council at the time. However I do not see that the actions of Councillor Y which Mr X complained about related to an administrative function of the Council.
15. Therefore we cannot comment directly on whether or not Councillor Y breached the Code in Mr X’s case. As a result, our remit is limited to looking at how the Council considered Mr X’s complaint under its arrangements for dealing with alleged breaches of the Code.
16. Second, we are not an appeal body regarding councils’ decisions. We can only question a council’s decision if there is fault in the way the decision was made and that fault caused an injustice to the person complaining.
17. But having considered the documents provided I consider that, for the most part, the Council correctly followed the procedure set out in its published arrangements.
18. In particular I note the DMO gave both parties an opportunity to provide information and comments, and he sought the views of the Independent Person before making a decision.
19. In addition I consider the DMO’s decision took suitable account of relevant points from the comments and information provided and gave a reasoned explanation of the decision reached which addressed the main issues in the complaint. I also consider that the DMO followed the Council’s published assessment criteria in making his decision.
20. In the circumstances my view is that the Council’s decision about Mr X’s complaint was within the range of decisions it was reasonably entitled to take based on the information provided, and there is no sign of fault which affected that decision.
21. The Council’s arrangements say that decisions at the assessment stage will normally be taken within 28 days of receipt of the complaint. The Council clearly failed to meet this timescale in Mr X’s case as it did not make a decision until around three months after he made his complaint. Therefore I consider there is sign of fault by the Council in this respect.
22. However I am not convinced that this gives us sufficient reason to investigate Mr X’s complaint. This is because it appears unlikely we could say that he was caused any significant harm or disadvantage from any delay by the Council. In particular, I do not see there are grounds to suggest the outcome would have been any different if the Council had made its decision earlier.

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Final decision

23. We do not have reason to investigate Mr X’s complaint that the Council did not properly investigate, and unreasonably failed to pursue, his allegation that a Councillor had breached its Code of Conduct for Members. This is because there is no sign of fault by the Council in this respect which has caused Mr X an injustice to justify our further involvement in his case.

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Investigator's decision on behalf of the Ombudsman