Summary: We will not investigate this complaint about the Council’s handling of a code of conduct complaint against a councillor. There is insufficient evidence of fault in the way the Council reached its decision on the complaint, and we cannot achieve some of the outcomes the complainant is seeking.

The complaint

1. Mr X complains the Council failed to properly consider his code of conduct (CoC) complaint against a councillor. In summary, he says the Council:
• Ignored serious evidence, including a sworn court statement and CCTV footage, and relied on the outcome of an irrelevant ‘Disclosure and Barring Service’ (DBS) check instead.
• Misapplied the CoC.
• Failed to investigate or refer allegations to the Police or safeguarding authority.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider the complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. With regard to the penultimate bullet point above, the Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. We also 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:
• information provided by Mr X and the Council, which included their complaint correspondence.
• the Council’s ‘Arrangements for dealing with allegations of breaches of the Code of Conduct for Councillors’.
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is very unhappy about the Council’s decision on his CoC complaint.
8. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong, and our role is not to ask whether the Council could have done things better. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the Council made.
9. I consider there is insufficient evidence of fault in the way the Council reached its decision on the CoC complaint, so we will not start an investigation. In reaching this view, I am mindful that the Monitoring Officer and/or Council:
• followed the arrangements for dealing with CoC complaints, including consulting the Independent Person.
• was entitled to rely on the DBS record it held about the councillor.
• explained the CoC complaint required no further investigation, as the allegations did not amount to misconduct whilst acting in a capacity as a councillor, that is linked directly to that role.
• has explained as some of Mr X’s allegations were historical, they did not fall within its safeguarding duty, but that it was open to him to report them to the relevant authority.
• Similarly, it advised Mr X that it was open to him to report any criminal activity to the Police.
10. We also could not achieve some of the outcomes Mr X is seeking, as we cannot recommend the Council takes disciplinary action against its staff, or compel it to disclose withheld documents. With reference to paragraphs 4 and 5 above, the Information Commissioner would be better placed to consider any concerns Mr X has about the Council’s response to his requests for information.

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Final decision

11. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council determined his CoC complaint. We also could not achieve some of the outcomes he is seeking.

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Investigator's decision on behalf of the Ombudsman