Summary: We will not investigate this complaint about a code of conduct complaint against a councillor. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to have contacted us sooner, and there is not enough evidence of fault in the way the Council considered the complaint.

The complaint

1. The complainant, whom I refer to as Mr X, says a councillor (Councillor Y) had a conflict of interest when participating in pre-application discussions for a large residential development, as he also has a longstanding interest in a historic railway that could also be affected by the development. Mr X says Councillor Y’s actions/comments resulted in the proposed access to the development being changed, so it is now via Mr X’s road.
2. Mr X also says Councillor Y had an undue influence on the amount of money invested in the railway by the Council, and is concerned about the impact this now has on the Council’s decision-making, as it has become an investor in the enterprise.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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. We do not start an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. In that regard, the Ombudsman does not provide a right of appeal against a Council’s decision on a code of conduct complaint. Rather, we focus on whether the Council has followed the correct procedure in reaching its decision. We cannot question its decision unless there is evidence of fault in the way the decision was made. (Local Government Act 1974, section 34(3), as amended)
5. But we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council, which included their complaint correspondence.
7. I also considered our Assessment Code, and the Council’s procedure for considering code of conduct complaints against councillors.

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My assessment

The Councils code of conduct complaint process

8. Section 3.1 of the Council’s ‘Procedure for Assessment, Investigation Determination and Appeal of Complaints against Councillors and Dispensations’ says:

“All complaints received about councillor conduct will be passed to the Monitoring Officer…….If it is not clear whether the complaint is a substantive allegation of misconduct, the Monitoring Officer will contact the complainant to seek further information.”

What happened

9. Mr X, acting on behalf of local residents, submitted a code of conduct complaint to the Council in early-January 2021 about the actions of Councillor Y.
10. The Council emailed its response to Mr X on 29 January 2021. It said the allegations against the councillor did not appear to amount to a breach of the code of conduct, so no further action would be taken. The Council says it received no further correspondence from Mr X on the matter.
11. Mr X then contacted the Ombudsman on 31 January 2022.

Conclusion

12. The 12-month time restriction, detailed in paragraph 5 above, applies to this complaint. I have considered the reasons Mr X put forward for the delay in contacting the Ombudsman. But I am not persuaded that these amount to exceptional reasons that prevented him from complaining to us about the Council’s decision on the code of conduct complaint. So, I do not consider there are grounds to exercise discretion to investigate this late complaint now.
13. And even if this time restriction did not apply, there is not enough evidence of fault in the way the Council considered the complaint to justify the Ombudsman pursuing the matter further. This is because the Council appears to have assessed and responded to the complaint in accordance with the provisions of section 3.1 of its complaint procedure.

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Final decision

14. We will not investigate Mr X’s complaint because it is late and there are insufficient reasons to exercise discretion to consider it now. In addition, there is not enough evidence of fault in the way the Council reached its decision.

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Investigator's decision on behalf of the Ombudsman