Summary: Mr X complains about proceedings at a meeting of the Council’s Overview and Scrutiny Committee in November 2018. He expressed concern about potential conflicts of interest and a decision to proceed to a vote rather than wait for written answers to some questions. After investigating what happened, the Ombudsman found no evidence of fault in this case.

The complaint

1. Mr X complains the Council’s Extraordinary Overview and Scrutiny Committee should have deferred its decision in November 2018 in order to wait for written answers to questions members had asked rather than advancing to a vote. He also complains three members had a conflict of interest and says the Council’s Code of Conduct should be broader to take account of that.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X and read his complaint correspondence with the Council which outlined his concerns. I wrote to the Council to make enquiries and reviewed the material it sent in response.
5. I have seen the Council’s constitution, its Code of Conduct, the rules which govern its Overview and Scrutiny Committee and papers relating to the meeting in question.
6. I shared my draft decision with Mr X and the Council and I invited them to comment on it.

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What I found

7. Mr X opposes the Council’s plans to develop a multi-storey car park in its area. Planning permission for the development was granted in August 2018 and the Council’s Cabinet approved the associated business case in October 2018.
8. Immediately after the Cabinet meeting, six councillors ‘called in’ the decision for review by the Council’s Overview and Scrutiny Committee. The Local Government Act 2000 explains the role of that Committee. It has the power to “review or scrutinise a decision made but not implemented”. If it feels it is necessary, it can then “recommend that the decision be reconsidered by the person who made it”.
9. The Council says there were two choices available to the Committee. Its members could either return the decision to Cabinet for further consideration or override the call in and allow the decision to stand.
10. Mr X complains some of the members of the Committee had conflicts of interest meaning they should not have taken part. He said two of them were on the planning committee that approved the plans a few months previously. And a further member had been part of a ‘Policy Advisory Group’ which had looked at the development at an earlier stage.
11. The Council says it does not recognise these as conflicts of interest under its Code of Conduct. It says the Committee in November 2018 was scrutinising the Cabinet’s decision, not the decision of the planning committee. Therefore earlier membership of the planning committee was not relevant. Meanwhile, the Council says its ‘Policy Advisory Group’ is not a decision-making body and again, that meeting was not the subject of the Committee’s scrutiny.
12. The Committee meeting took place. The councillors who triggered the call-in made their case. For practical purposes it was split into four separate points. The leader of the Council then answered questions from the Committee. Minutes of the meeting show the leader answered a broad range of questions. There were however five questions he could not answer on the spot, and members agreed he could provide written answers for these later.
13. The Committee then considered each of the four points of the call-in in turn. Each time, the members voted to override the call-in and allow the Cabinet’s decision to stand. Mr X believes it was improper for the Committee to ask for further written answers from the leader but to then complete a vote without the information anyway.
14. The Council says it was a ‘matter of judgement’ for the Committee as to whether it should defer its decision or advance to a vote. It has provided a copy of the written answers, sent on 19 November 2018 to all members of the Committee.

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Analysis

15. The role of the Ombudsman is to consider whether a decision taken is in accordance with the law, national and local policy and good administrative practice. We cannot intervene in a properly taken decision relying on professional judgement or the exercise of discretion.
16. I am satisfied there was no conflict of interest any of the councillors identified by Mr X should have declared ahead of the Committee meeting. The Code of Conduct is clear. Mr X argues for a broader interpretation of the wording but I do not accept that. The Council’s Code of Conduct is a typical example of the standard set out by the government. Although the Council is free introduce stricter rules if it wishes, it does not have to. It is not the place of the Ombudsman to direct it to meet a higher standard.
17. I also considered what happened at the Committee meeting itself. There are detailed minutes. They show both sides had an opportunity to address the Committee and answer questions. The Committee allowed the leader of the Council to provide written answers to a small number of questions after the meeting. He had already answered questions on each point of the call-in verbally and the questions left for written answers were supplementary in nature. They did not set a specific deadline for him to provide his response.
18. After hearing submissions from both sides, the Committee then decided to vote. One councillor asked two questions for which the answers awaited a written response, but then acted as the proposer for the motion overriding the call-in on that point anyway. Although that approach appears open to question, I cannot say it was fault.
19. Nor is the fact the Committee voted on the remaining three points in the absence of the written answers fault. The members voted on a majority basis. There is no evidence more than one member of the Committee supported any of the questions left unanswered at the time of the vote.
20. Although it was open to the Committee to defer their vote, there is no duty for it to do so when one member asks a question to which there is no immediate answer. To do so could result in that member frustrating the will of the remaining Committee members. Instead, I would expect the members to consider the importance of any unanswered questions when they vote.
21. As there is no evidence of fault in the circumstances of this case, I am ending my investigation.

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Final decision

22. There is no evidence of fault in this case.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman