Summary: Mr X complained about the actions of councillors which he felt breached the Council’s code of conduct. The Council was at fault when it delayed in considering Mr X’s complaint. It was also at fault when it failed to follow its procedures for handling complaints against councillors. This fault caused Mr X an injustice. The Council has agreed actions which will enable it assess his complaint again and to decide whether or not to investigate. These are suitable actions to remedy the injustice Mr X was caused.

The complaint

1. Mr X complained about the actions of councillors during the COVID-19 pandemic.
2. Mr X also complained about the way the Council handled his complaint about these actions. Specifically, he complained the Council:
• delayed in dealing with complaint;
• refused to accept evidence from him and then claimed he had provided nothing to support his complaint; and
• dismissed his complaint because he did not make specific reference to the parts of the code of conduct he believed had been breached.
3. Mr X says he has been caused frustration because his complaint has not been properly considered.

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What I have investigated

4. I have investigated Mr X’s complaints in paragraph 2. I explain why I have not investigated his complaint in paragraph 1 at the end of the decision statement.

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The Ombudsman’s role and powers

5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. 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)
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

8. I spoke to Mr X and considered his view of his complaint.
9. We made enquiries of the Council and considered the information it provided. This included correspondence between the Council and Mr X.
10. I considered the Council’s procedures on submitting and investigating a complaint against councillors.
11. 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

12. 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’.
13. The Council’s code of conduct for councillors includes “You must promote and support high standards of conduct and not act in a way which could reasonably be regarded as bringing your office or the Council into disrepute”.
14. The Act states an allegation in relation about a councillor means “a written allegation that a member… of the authority has failed to comply with the authority’s code of conduct”.
15. The Council’s procedures state people must complain to the monitoring officer about the actions of councillors. The complaint must include all of the following information:
• the name of the councillor;
• the conduct being complained about;
• what part of the Code of Conduct may have been breached;
• when the incident took place; and
• what outcome is desired.
16. The Council will then carry out initial checks covering matters such as whether the councillor was in office at the time and whether the conduct complained about is covered by the Council’s code of conduct. The procedures state complaints must be made within 20 days of the incident occurring although the Council will consider late complaints under exceptional circumstances.

The Council’s procedures state that after receiving a complaint:

• within five working days, the monitoring officer will acknowledge receipt of the complaint and confirm if it is covered by the complaint process or not.
• if the complaint is covered by the complaint process, then within five working days of receiving the complaint, the monitoring officer will also write to the councillor with details of the complaint. The councillor will be invited to respond within five working days, or longer at the discretion of the Monitoring Officer, including providing details of witnesses and relevant information and documents.

What happened

17. In July 2020, under emergency legislation relating to the COVID-19 pandemic, the Council brought in certain new provisions.
18. Mr X was unhappy with the Council’s decision to introduce the new provisions and the related actions of officers and councillors and so on 6 July 2020, he complained to certain Council officers by letter. In his letter, Mr X included the following wording “certain… councillors… falsely claimed that there had been a form of quasi-consultation”. He also made reference to… “councillors back-tracking and lying to the public”. Mr X did not specify which councillors these accusations related to although he did name several councillors in other parts of his letter.
19. A Council officer consulted with the monitoring officer and then responded to Mr X on 13 July. The officer stated “The Council takes allegations about false claims and misuse of consultation and survey responses seriously. If you do wish to pursue a complaint then please contact [the monitoring officer] as he is responsible for helping the council to maintain high standards of conduct”.

Mr X responded on 4 August saying “we don't feel the onus should be on us to now register a formal complaint. We have provided you the feedback quite clearly. If… you do take such matters seriously and… would like to scrutinise the specifics so that you can take any actions you deem appropriate then we would be happy to provide those details to you”.

20. The officer again liaised with the monitoring officer and responded on 13 August stating Mr X should make a complaint using the Council’s online form.
21. On 3 September, the following discussions took place by email:
• Mr X stated he had already submitted his complaint in writing and declined to do so again.
• the monitoring officer replied and explained he needed to know who Mr X was complaining about, what it is they had done, what provision of the code of conduct had been breached and his desired outcomes. The monitoring officer stated Mr X could use the online form or submit a letter or email with the information. He explained the letter submitted on 8 July provided useful context but “People do sometimes refer back to earlier emails and ask that we draw information together ourselves but that opens up the potential for later complaint that in doing so we have misunderstood or misrepresented their concerns”.
• Mr X responded and stated “The original letter… on July 8th probably provides the details you require in the first instance. It's probably appropriate that you read what has already been submitted before asking us to make an entirely new submission. Should you then require details or evidence to support the content of the letter then that can be arranged as a follow-up step”.
• the monitoring officer again asked Mr X to specify which councillors he was complaining about and reiterated the other information he also needed.
• Mr X provided information which included the following “the claim is that [Cllrs X and Y] were disingenuous over their original intent, claimed there was no time to consult when clearly there was, misled the public over support for their proposals using a piece of analysis that showed nothing of the sort, and then in back-tracking made false claims that the idea of full pedestrianisation was simply scare-mongering by members of the public”.
22. On 5 September, the monitoring officer stated he and the independent person would consider the complaint.
23. Mr X heard nothing further and in December he chased the monitoring officer for a response. Mr X also asked when he would be able to submit his evidence to support his allegations.
24. The monitoring officer responded later that month and apologised for the delays. He said he had recently referred the matter to the independent person and he would inform Mr X of the outcome of the assessment decision once he had heard the independent person’s views. The monitoring officer said that at the assessment stage he did not require evidence and this would only be called for if the complaint proceeded to full investigation.
25. Mr X responded and queried how the monitoring officer could consider his allegations properly without the evidence he wished to send. The monitoring officer explained this stage considered whether the allegations might warrant a full investigation and sent Mr X a copy of the procedures the Council followed. These included the details in paragraph 14 of this decision statement.
26. Mr X heard nothing further and chased the monitoring officer. He responded in April 2021 and apologised for the delays. He informed Mr X that the independent person had reviewed the complaint and found there was a “significant problem” because the complaint contained no “specifics”. The monitoring officer said he and the independent person agreed the allegations which were about the misleading of the public would, if true, be potentially serious. The Council went on to say “I also agree with the Independent Person that because the allegations are so serious they should be backed up by evidence. And they are not. I cannot act without some substantive evidence that can be assessed”. The Council said that if Mr X could provide evidence, it would be happy to reconsider his complaint.
27. Mr X responded. He was unhappy because he had previously offered to provide evidence and the monitoring officer had refused it. He suggested it would have been good practice to have spoken to him to discuss his case and the evidence he had.
28. The monitoring officer responded. He said “a problem from the outset has been the unwillingness of those complaining to set out their complaint in terms of the councillor code of conduct”. The monitoring officer repeated Mr X had not sent in anything to evidence his claims.
29. Mr X responded and said as a member of the public he was not familiar enough with the Council’s code of conduct to be able to lay out his complaint in line with its specifics. He said that he would now do so if that meant the monitoring officer would reconsider his complaint. He resubmitted his letter of complaint, this time including the relevant parts of the code of conduct and also attached a 50-page document which lay out the evidence he felt supported his allegations.
30. The monitoring officer responded. It said “The Localism Act is very specific that the conduct of a councillor can only be investigated following an allegation that the councillor has failed to comply with the authority’s code of conduct”. The Council did not refer to the evidence Mr X had submitted and said the decision was there was no valid complaint to investigate under the Localism Act.
31. Mr X responded and clarified which parts of the code of conduct he felt had been breached. The monitoring officer stated he would not investigate.
32. Mr X complained to the Ombudsman.
33. During my investigation, the Council monitoring officer responded and stated “My reference to the complaint lacking substantive evidence was unhelpful because at stage 1 no investigator has been appointed, no statements and no other evidence have been gathered and we should not be pre-empting or duplicating stage 2 by attempting to assess substantive evidence. Instead at stage 1 we are assessing the complaint to establish whether there is something that warrants investigation within the Code of Conduct, the Council’s procedure and the legal framework provided by the Localism Act… Mr X’s comments about a contradictory approach to the need for evidence at stage 1 prompted me to look again at the complaint and the framework within which any code of conduct complaint must be assessed”. The monitoring officer explained that after doing so, he again concluded that in the absence of an allegation of a breach of the code of conduct there could be no investigation. He also said Mr X had failed to explain what exceptional circumstances there were to justify consideration of a complaint outside of the original 20 working days.

My findings

34. It is not our role to decide whether a councillor has breached the code of conduct. This is for the Council’s monitoring officer to decide in line with the relevant legislation and its complaints procedures. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
35. Mr X submitted a complaint complaining about actions allegedly taken by officers and councillors. A Council officer responded to the service issues he raised, recognised there were also issues relating to the actions of councillors and suggested if Mr X wanted to take the issues about councillors further, he should complain separately to the monitoring officer.
36. Members of the public should be able to complain to any part of the Council and we would expect the Council to pass the complaint onto the relevant officers. Mr X felt he should not resubmit his complaint and he asked the officer to pass it to the correct department. The officer again asked Mr X to resubmit his complaint and suggested the online form as an easy way to do so. Mr X declined and at that stage the officer passed his complaint to the monitoring officer on his behalf. Although this caused some delays, they are not significant enough to warrant a finding of fault. And Mr X did not need to submit a separate complaint because his original one was subsequently passed to the monitoring officer. Therefore, even if I did find fault, Mr X did not experience any significant injustice.
37. In his resubmission to the Council in September, Mr X stated named councillors had allegedly misled and made false claims to the public. He was clearly saying these councillors had brought the Council and their office into disrepute. To expect Mr X to quote the exact section of the Council’s code of conduct was unnecessarily onerous. In order to satisfy the requirements of the Localism Act and the Council’s own procedures, the Council could, and should, have made efforts to confirm these matters with Mr X. Its failure to do so was fault.
38. In September 2020, the monitoring officer informed Mr X he would consult with the independent person and issue a decision on whether to proceed to investigation. The monitoring officer issued his decision in April 2021, seven months later. The Council had all the information it needed to make this decision well before then. This delay constitutes fault. The Council has already apologised for the delays which is sufficient to remedy the frustration this caused Mr X.
39. The monitoring officer issued his decision stating he and the independent person were of the opinion Mr X’s complaint should not proceed to investigation. The reason given was that Mr X had failed to be sufficiently specific and had not provided evidence to support his allegations. This was not accurate, because Mr X had previously offered to provide evidence. It was also not in line with stage 1 of the Council’s procedures when a complaint was assessed to determine whether it met the threshold for investigation, not whether supporting evidence had been provided. As a result, the Council acted with fault.
40. During my investigation, the Council acknowledged its actions at this stage were not in line with its policy. It further explained that when challenged by Mr X about providing evidence it reconsidered his complaint and concluded again that it had failed to meet the threshold for investigation. The Council said this was because Mr X had not specified which part of the code of conduct had been breached and had not explained what exceptional circumstances there were to justify consideration of a complaint outside the 20 working days allowed for complaints against councillors.
41. Mr X complained within the 20 day time limit. Subsequent delays occurred because the Council requested he resubmit it to the relevant department. When Mr X was asked by the monitoring officer to provide further details about which part of the code of conduct was breached, he did so the same day.
42. I have no view on whether Mr X’s complaint should go through to investigation. That decision is for the Council to make following the correct procedure having regard to the relevant information. The Ombudsman does not have the power to question these decisions if properly made. In this case, however, the reasons given for not investigating, which was that the complaint did not specify which part of the code of conduct was breached, and the complaint was late were inappropriate. This view is backed-up by the monitoring officer’s assertion in April 2021 that he and the independent person agreed the allegations which were about misleading the public would, if true, be potentially serious. Therefore, on balance, there was fault in the way the Council’s decision-making process. This has caused Mr X frustration and uncertainty.
43. During my investigation, the Council agreed it will send Mr X a copy of the Council's code of conduct so that he has the opportunity to state his complaint in terms of the code. The Council has said it will help Mr X confirm what he believes to be the relevant provisions. It will then appoint a new independent person and consider whether Mr X’s complaint is suitable for investigation. It will inform Mr X of its decision. These are suitable actions to remedy any injustice Mr X has been caused.

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Agreed actions

44. Within three months of the date of the final decision, the Council has agreed to:
• work with Mr X to give him the opportunity to submit a valid code of conduct complaint;
• consider the information submitted by Mr X;
• decide whether to pass it to investigation; and
• provide Mr X with the reasons for the decision it makes.

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Final decision

45. I have found fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

46. I have not investigated Mr X’s complaint in paragraph 1 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