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Doncaster Metropolitan Borough Council (20 013 488)

Category : Other Categories > Councillor conduct and standards

Decision : Upheld

Decision date : 28 Sep 2021

The Ombudsman's final decision:

Summary: Mrs C complained the Council’s Monitoring Officer failed to properly consider her complaint and respond to her as set out in its Policy. As a result, Mrs C said she experienced distress and lost trust in the Council’s handling of her concerns. We found no fault in the Council’s Code of Conduct decision, we cannot therefore criticise its merits. However, we found it at fault for unnecessarily withholding her planning objections too long and failed to respond to her complaint within its own deadlines. The Council has agreed to apologise for the fault it has not already apologised for. It also agreed to remind its officers to respond to complaints as set out in its Policy.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complained the Council’s Monitoring Officer failed to properly consider and respond to her complaint. She said:
    • her objections on a planning application were withheld for an unreasonable period of time;
    • a Councillor (Councillor X) has breached the Code of Conduct and used his influence in planning matters; and
    • the 2014 Town Council Neighbourhood Plan is flawed because the questionnaire in 2014 did not contain any form of identification of those completing it and it was not supported by local residents.
  2. As a result, Mrs C said she has experienced distress and loss of trust in the Council’s handling of her concerns.

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What I have investigated

  1. I have investigated Mrs C’s complaint about the Council’s withholding of her objections on a planning application and her allegation a councillor breached the Code of Conduct.
  2. The final paragraph of this statement explains why I have not considered other parts of Mrs C’s complaint.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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’. 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)
  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)
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
  6. We have no jurisdiction to investigate the actions of town or parish councils or their members. In a complaint such as this, about an alleged breach of the Code of Conduct by a parish councillor, we can only look at the way the Council dealt with the complaint about the alleged breach. We cannot look at the substantive complaint itself.
  7. 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. As part of my investigation, I have:
    • considered Mrs C’s complaints and the Council’s responses;
    • discussed the complaint with Mrs C;
    • considered the information provided by the Council;
    • considered the relevant law, guidance and policy; and
    • given Mrs C and the Council the opportunity to comment on a draft version of this decision and considered their comments.

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What I found

Member Standards complaint

  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. This must involve an Independent Person in decisions over whether or not to investigate complaints.
  2. The Council’s Code of Conduct Complaints Handling Policy sets out arrangements for dealing with complaints of a breach of the Code of Conduct. The Monitoring Officer must:
    • acknowledge complaints within five working days; and
    • decide whether the complaint merits formal investigation or to attempt informal resolution within twenty working days.
  3. The Monitoring Officer, in consultation with the Independent Person, can decide not to investigate a complaint in certain circumstances. These include where:
    • The allegation doesn’t demonstrate any potential breach.
    • The allegation is not considered sufficiently serious to merit the cost to the public of carrying out an investigation.
  4. If the Monitoring Officer decides, having consulted the Independent Person, not to investigate the complaint they must write to the complainant giving the reasons for rejection.
  5. There is no right of appeal of the Monitoring Officer’s decision.
  6. The Ombudsman’s role is to consider the way the council considered the complaint. In this case this means considering whether the Monitoring Officer investigated the complaint in accordance with the Council’s Policy. We can consider whether there were avoidable delays, whether the investigation failed to take account of relevant information or did not follow the Council’s procedures. The Ombudsman can only consider the actions of the councillor if we find fault in the Council’s investigation.

What happened

  1. In late 2020 Mrs C made two objections on an outline planning application for employment of land near her home. She said:
    • Councillor X had an interest in the area of the proposed development, but he had wrongly attended meetings and made representation on the application; and
    • the Town Council’s Neighbourhood Plan from 2014 was flawed and not supported by local residents.
  2. The Council received Mrs C’s objections and published these. However, shortly after it decided to withdraw her objections.
  3. Mrs C said she asked the Council why it had withdrawn her objections, but she did not get a response.
  4. In early 2021 Mrs C complained to the Council’s Monitoring Officer. She said:
    • the Council had wrongly withheld her two objections on the planning application;
    • Councillor X had breached the Code of Conduct and used his influence in planning matters; and
    • the 2014 Town Council Neighbourhood Plan was seriously flawed and it was not supported by local residents. She also said Councillor X had failed to declare his interest in meetings and attendances during the consultation of the Plan.
  5. The Council published Mrs C’s objections, but it did not tell Mrs C.
  6. Three weeks later, Mrs C had not received a response to her complaint. She asked the Council’s Monitoring Officer why she had not received an acknowledgement. She also said her objections had been published, but it had not told her why it had withheld these. Nor had it responded to her other concerns.
  7. The following day the Council’s Monitoring Officer acknowledged Mrs C’s complaint. He said her concerns about Councillor X’s conduct will be considered and an Independent Person will be consulted. He apologised for the delay and explained this was due to remote working during COVID-19.
  8. Two weeks later the Council’s Monitoring Officer told Mrs C her objections had been withheld as it had consulted its Legal Department for advice. This caused a delay. He agreed this was an unnecessary delay and apologised. However, her objections had since been published and will be considered when the planning application is determined. He also said her councillor conduct concerns was being considered by the Independent Person.
  9. Mrs X sent further emails to the Council’s Monitoring Officer. She said:
    • she wanted the Council’s Audit Committee to investigate her complaints;
    • her objections had wrongly been withheld during the time when the Council’s Local Plan Examination Hearings were taking place by the Government Inspector;
    • the Council had received the Town Council’s Final Draft Neighbourhood Plan in 2017, but this had not yet been recommended for an Independent Examination;
    • she had made a complaint in 2019 about other councillors conduct in relation to the outline planning application. She wanted this considered too; and
    • the Monitoring Officer had failed to response to her complaint as set out in the Council’s Policy.
  10. In response the Council’s Monitoring Officer told Mrs C he had considered her complaint and consulted with the Independent Person. They both agreed her allegations against Councillor X did not amount to a breach of the Code of Conduct and no further action should be taken.
  11. Mrs C remains unhappy with the Monitoring Officer’s handling of her concerns and the outcome of his investigation. So, she complained to the Ombudsman.

Analysis

Withholding Mrs C’s objections on the planning application

  1. The Council agreed it caused an unnecessary delay when it withheld Mrs C’s objections on the outline planning application. This is fault.
  2. The Council apologised to her and explained her objections would still be considered as the application was yet to be decided. I am satisfied this is enough to remedy the injustice this may have caused Mrs C. This is because she has not lost her opportunity to have her views considered.
  3. I acknowledge Mrs C believes the Government Inspector would have considered her objections as part of the Local Plan Examination Hearings. However, the Inspector considered the Local Plan, not individual planning applications. Her objections would therefore not have been considered during the hearings. In any case, I cannot consider matters considered by the Planning Inspector.

Code of Conduct

  1. The Council’s Monitoring Officer investigated Mrs C’s concerns and consulted with the Independent Person. They agreed there was insufficient evidence to support her allegation Councillor X had breached the Code of Conduct and told Mrs C no further action would be taken.
  2. I am satisfied the Council properly investigated and considered Mrs C’s concerns about the Councillor’s conduct. This is because the evidence shows it considered each of Mrs C’s concerns, but it did not agree with her view a breach of the Code had occurred.
  3. We cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. As there is no evidence of fault in how the Council reached its decision, I am unable to question the decision made.
  4. However, the Council agreed it failed to respond to Mrs C’s Code of Conduct complaint as set out in its Policy. This is because it failed to acknowledge her complaint within five working days, and it took three months to respond to her concerns. This is fault.
  5. Although the Council did not uphold Mrs C’s allegations, I am satisfied the delays caused Mrs C some distress due to the uncertainty and loss of trust in the Council’s handling of her concerns. It apologised for its delay in acknowledging her complaint, but it has not apologised for its delay in providing its response to her complaint.

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Agreed action

  1. To remedy the injustice the Council caused to Mrs C, the Council should, within one month of the final decision:
      1. apologise in writing to Mrs C for its delay responding to her complaint as set out in its Policy;
  2. Within three months of the final decision the Council should also:
      1. Remind its officer of the importance to acknowledge and respond to complaints as set out in the Council’s Policy.

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Final decision

  1. I have completed my investigation with a finding the Council were at fault for its delays in publicising her objections and responding to her complaint. I found no fault in how it considered her Code of Conduct complain, and so I cannot criticise the merits of its decision.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs C’s complaint about:
    • The Town Council’s 2014 Neighbourhood Plan or its 2017 Final Draft Neighbourhood Plan. This is because such matters are outside our jurisdiction; and
    • her complaint about other councillors conducts in 2019. This is because these matters are late. I have seen no good reason to exercise my discretion as it would have been appropriate for Mrs C to have brought this to our attention at the time.

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Investigator's decision on behalf of the Ombudsman

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