Barnsley Metropolitan Borough Council (21 006 397)

Category : Planning > COVID-19

Decision : Upheld

Decision date : 27 Jan 2022

The Ombudsman's final decision:

Summary: A technical problem in the broadcast of a planning committee meeting was service failure by the Council. However, this problem did not affect the outcome of the meeting, and so there is no injustice to the complainant. It is not fault for the Council’s Chief Executive to not personally reply to correspondence. We have therefore completed our investigation.

The complaint

  1. I will refer to the complainant as Mr N.
  2. Mr N complains:
  • the broadcast of a virtual meeting of the Council’s planning committee was of poor quality, which means the outcome of the vote on a particular item was unclear; and
  • the Council’s Chief Executive delayed replying personally to correspondence from Mr N.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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”.

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How I considered this complaint

  1. I reviewed Mr N’s correspondence with the Council, and information about the planning application in question on the Council’s web portal.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. Mr N is a member of a group of local residents which lobbies the Council on certain planning matters.
  2. In November 2020, the Council’s planning committee held a meeting. Because of restrictions related to the ongoing COVID-19 pandemic, the meeting was virtual, rather than in-person, with a video of the meeting broadcast live online.
  3. One of the items discussed at the meeting was a planning application in which Mr N’s group had a particular interest. The proposal was put to a vote at the meeting, with the result tied between those members in favour and those against it. The committee chairperson used their casting vote to decide in favour of the application.
  4. Several months later Mr N submitted a formal complaint to the Council. He said the vote of one member (to whom I will refer as Councillor V) had not been audible on the live broadcast of the meeting, and questioned the fact he was recorded as having voted in favour. Mr N said the inaudibility meant the Council was in breach of the regulations on virtual meetings.
  5. Mr N also complained his group had written to the Council’s Chief Executive about the matter on 1 December 2020, but had not received a response from her personally until 1 March 2021, despite having chased the matter several times. Mr N said, once the Chief Executive finally did reply, she simply referred the group to the record of a subsequent committee meeting, in which the minutes of the November meeting had been approved.
  6. The Council responded on 2 July 2021. It said virtual meeting technology had enabled the Council to continue holding meetings during the pandemic, but acknowledged connectivity was sometimes a problem. The Council accepted it was best practice for participants to be both seen and heard during meetings.
  7. The Council said it had immediately investigated the November 2020 planning committee meeting, once it had been notified of the problem. Both Council officers administering the meeting had confirmed they had heard Councillor V’s vote at the time, and Councillor V had subsequently confirmed his vote had been recorded correctly.
  8. The Council apologised for the problem with the broadcast, but said it was satisfied the meeting had followed the correct procedures, including the chairperson’s use of their casting vote.
  9. The Council also apologised for Mr N’s frustration at the Chief Executive’s delay in responding to the group’s letter. However, it explained the Chief Executive was unable to respond personally to each piece of correspondence addressed to her, and often had to delegate the matters to subordinate officers.
  10. Mr N responded to request his complaint be escalated to stage 2 of the Council’s complaints process. However, on 20 July, the Council replied to explain it did not consider it could add anything more to its previous response, and referred Mr N to the Ombudsman if he wished to pursue the matter.
  11. Mr N complained to the Ombudsman on 29 July.

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Legislative background

  1. In April 2020, the Government introduced temporary regulations to allow council meetings, including those of planning committees, to be held virtually by video conferences.
  2. The regulations say attendees to such meetings should be able to hear, and be heard by, all other attendees, including members of the public where appropriate. The regulations also say attendees should be visible to other attendees where practical.

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Analysis

  1. Mr N says Councillor V’s vote was not audible on the broadcast of the planning committee meeting in November 2020. He complains this was in breach of the regulations introduced to cover virtual meetings during the COVID-19 pandemic, and believes the meeting and vote should be repeated as a result.
  2. I first note that, while the Council does not dispute the problem with the broadcast, this does not necessarily mean it was because of maladministration by the Council. It appears equally possible it was caused by technical issues entirely outside the Council’s control. This being the case, I do not consider I can fairly make a finding of maladministration by the Council here; rather, I consider this more to be a case of what we would term ‘service failure’.
  3. Either way, I accept the fact Councillor V’s vote could not be heard meant the meeting did not accord with the regulations at this point.
  4. However, I do not consider this represents an injustice to Mr N. The Council investigated the matter, and reported that both officers administering the meeting had confirmed they had heard Councillor V’s vote; and that Councillor V himself had confirmed his vote was correctly recorded. There is therefore no reason to believe the outcome of the meeting was affected by the technical problem Mr N and other viewers experienced.
  5. I acknowledge Mr N feels the Council should repeat the meeting and vote, but I do not consider that would be proportionate here. We would not ask the Council to invest time and resources in repeating an exercise, simply because of a technicality with no substantive consequence.
  6. Mr N also complains the Council’s Chief Executive did not reply to his group’s letter for approximately three months. Mr N considers the Chief Executive should “acknowledge her conduct was unsatisfactory and apologise”.
  7. While any person is free to address their correspondence to the Council’s Chief Executive, it is for the Council to decide who is the most appropriate person to respond. No person has the right to demand or expect a reply personally from the Chief Executive.
  8. Mr N’s complaint letter makes clear the group did receive a response from a different Council officer, before the Chief Executive later replied herself; and so there is no evidence of fault here.
  9. Further to this, the Ombudsman makes findings and recommendations against the Council as a corporate body, not against individual officers. We could not recommend the Chief Executive admit any personal misconduct or make an apology, even if there were evidence of fault here.

Conclusions

  1. The technical problem with the Council’s broadcast was fault, in that it represents a service failure. However, there is no evidence this caused an injustice and I have no grounds to recommend the meeting or vote be repeated.
  2. There is no fault in the fact the Chief Executive did not quickly reply to Mr N’s group’s correspondence.

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Final decision

  1. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman

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