The Ombudsman's final decision:
Summary: There was no fault in the Council’s handling and consideration of the application for the formation of a parish council.
- A village society complains the Council’s decision not to form a new parish council was flawed.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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)
- 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)
How I considered this complaint
- I considered the complaint and watched the recordings made by a member of the public that are on the internet of the council meeting where the decision was made. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of the society and the Council and invited their comments.
What I found
- The village society submitted a petition asking the Council to consider forming a parish council. The Council agreed to carry out a community governance review. That is a formal process laid down by Government.
- There was consultation with local residents and business. The Council sent a questionnaire to all local residents and businesses. It held a community action team meeting. And there was a further round of consultation.
- The full Council decided not to agree to the forming of a parish council. The reason for the decision was there was no clear and sustained level of local support although acknowledgement was made to the achievements made by the society. In support of the decision the Council referred to:
- the relatively low response to the consultation compared to the overall size of the electorate;
- the decreasing support for the parish council proposal over the 12 month consultation period; and
- low turnout at the community action team meeting held to engage with the community.
Assessment of the key issues
- The village society considers the consultation was flawed. In particular they consider the second round of consultation was not clear.
- The letter was addressed to ‘the occupier’. The first round consultation letter was addressed by name to all residents taken from the electoral register. The Council has said the second letter was not addressed in the same way as there had been problems in getting an up to date set of details from the electoral register. I do not consider this is fault. Individual letters were sent to all properties and the slight difference in the salutation is not significant.
- The letter said that an analysis of the responses so far was on the Council’s website or a paper copy could be provided. It said that officers would be recommending to full Council that a parish council should not be formed. It gave a closing date for responses. The Council later extended the date, and sent a further letter following representations from the Society. I do not consider there is any fault in this letter. It said what the recommendation was so if people disagreed and supported a parish council they knew that they should make further representations.
- The Society considered there should have been a referendum. The Council has said a formal referendum would be unlawful, as part of a community governance review, because it is a formal poll with a binding result. The review did not fall within the limited matter which, by law, a referendum is permitted for. Part of the review is that the full Council takes the final decision. They must take all material considerations into account, not just the outcome of a poll, consultation, or other public engagement activity. The statutory guidance sets out a number of factors which the Council must take into account in reaching its decision. The views of the community, while important and material to the final decision are only one of the factors.
- The Council said it could have carried out a local discretionary consultative poll to identify the views of people with a non-binding result. But this would have duplicated the consultation work that was undertaken. The consultation gave more scope for the public to provide detailed comment to the Council than a ‘yes’ or ‘no’ poll.
- I consider the Council has provided reasoned arguments on this point and there is no fault in the decision not to carry out a referendum or poll.
- The Society complained the report on the proposal was biased as it said only 5% had supported forming a parish council but that was at the later stage when 74.5% has supported it in the first survey.
- The report explained that in response to the first consultation 74.5% of the people responding supported forming a parish council. That equated to 30% of the population. The report went on that the response rate for the second phase consultation was low at 7.4%. Of those that responded 61% (32 responders) said they were against the Council's preferred option to make no changes to the current arrangements. This is equal to 5.6% of the population of the village expressing their dissatisfaction with the Council's recommendation to make no changes to the current arrangements. Most of the supporting comments focused on the conclusions the Council had drawn from the results of the first consultation and how these were presented. In total, 39% (20 responders) said that they supported the Council’s preferred option to keep things as they are. The comments they made in support of this covered similar themes to those that emerged in the first phase consultation.
- I do not consider the report was misleading or inaccurate. It gave the figures of the responses at each stage.
- The Society made complaints about the conduct of the meeting where the decision was made. They said that a councillor who was not in favour of the parish council proposal was allowed to speak for eight minutes but the chair stopped a speaker in support of the proposal at five minutes.
- The Council has said the councillor in favour was granted dispensation to speak for longer as she explained she was speaking for both herself and on behalf of her absent ward colleague. The time she took to present both Members views was well below the time that would have been allowed for them to speak individually. The councillor speaking against was speaking individually and, along with many other Members who spoke at the meeting, was held to the normal speaking time for a single Member. The Council considered “this was a reasonable exercise of the discretion allowed the Mayor under the Council’s Standing Orders in the circumstances and represents historic common practice followed at Council debates in guiding the exercise of discretion in this regard”.
- I consider there were grounds for an exception to be made for the one councillor to speak for longer and this was not fault.
- The Society complained about remarks made in the debate by various councillors. There is a process for considering complaints about the conduct of a councillor. Any specific complaints that there has been a breach of the code of conduct by a councillor should be dealt with through that. However I have considered whether there was any evidence of administrative fault in the conduct of the meeting.
- There was a recurring point that councillors were giving weight to what was referred to as a waning of support for the parish council proposal. This was something that was referred to and was something the councillors had to consider. They had all the relevant information before them in the report by officers and also the comments of the Society. I do not consider that any of the councillors said anything that was significantly inaccurate; rather their comments were an expression of their views and interpretation of the information before them which they were entitled to make.
- The Ombudsman would only be critical of comments made by a councillor in a debate at a meeting if the comments were clearly and obviously wrong and it was something the councillor was or should have been aware of. It is the nature of a debate that sometimes a view may not be expressed precisely. A councillor can be mistaken in what they say but that is not necessarily administrative fault.
- I do not consider that any of the comments the Society has referred to meet this threshold. Rather I consider they were an expression of views that Councillors were entitled to make.
- The society has suggested in responding to a draft of this statement that the vote was ‘whipped’ ie that Members had to vote in the way instructed by the political party to which they belong. Some decisions made by councils in particular planning decisions cannot be subject to a party whip. However that does not apply to other decisions. And the fact that Members voted along party political lines is not in itself significant or an indication of fault. As I say I am considering whether Members had before them all the relevant and accurate information on which to make a decision. They did and there was no fault in how the decision was made.
- There was no fault in the Council’s handling and consideration of the application for the formation of a parish council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman