Summary: Mr X said the Council failed to properly consider his complaint about a councillor and then failed to tell him about the Ombudsman. We found no fault in how the Council reached its decision on Mr X’s councillor complaint. But the Council delayed signposting Mr X to us although that delay did not cause him significant injustice. However, to prevent such delay possibly causing injustice to others in the future, the Council agreed to take steps to ensure people were made aware they could complain to us.

The complaint

1. Mr X said Milton Keynes City Council’s (‘the Council’) consideration of his complaint was flawed because it did not:

• ask him for more information;
• allow him to speak to the investigating officer; and
• allow him to comment on a draft of the report, before issuing its decision notice.

2. Mr X said this meant the Council’s decision notice contained unfounded scurrilous allegations and errors that he had no opportunity to comment on. This was frustrating and caused Mr X stress and prevented him from serving his community.
3. Mr X also said the Council failed to signpost him to the Ombudsman should he find its response to his complaint unsatisfactory.
4. Mr X wanted the Council to give his complaint a fair hearing, withdraw the false allegation, and give him an opportunity to correct errors in the decision notice.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’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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What I have and have not investigated

7. While we investigate complaints about councils and certain other bodies, the law does not give us a general power to investigate the actions of local councils. Local councils are parish and town councils. Mr X complained to the Council about the conduct of a councillor at a meeting of a local council. So, while what happened at the local council meeting led to Mr X’s complaint, I have not investigated the local council’s actions. My investigation concerned how the Council handled Mr X’s complaint.

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How I considered this complaint

8. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• considered relevant law and guidance, including the Local Government Association’s Guidance on Member Model Code of Conduct Complaints Handling (‘the Guidance’);
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

9. The law (the Localism Act 2011, as amended) says councils, including parish and town councils, must adopt a ‘code of conduct’. The code sets out the standards of behaviour, or conduct, expected of people when acting as councillors. Councils, excluding parish and town councils, must also have arrangements in place to investigate written allegations that a councillor has not complied with their council’s code. Under the arrangements, councils must appoint at least one ‘independent person’. The council or councillor complained about may seek the views of the independent person when dealing with a complaint. And councils must seek and consider the independent person’s views before they make a decision on allegations they investigate.
10. An allegation about a parish or town councillor not complying with their local council’s code of conduct is made to the relevant ‘principal council’. The principal council then considers that complaint under its arrangements. Here, Mr X’s complaint about the conduct of a councillor at a local council meeting had to be considered by the Council under its arrangements.
11. The law also requires some councils to appoint an officer as ‘Monitoring Officer’. Essentially, the Monitoring Officer’s role is to ensure their council’s decision making is lawful and fair. The Monitoring Officer is often responsible for handling complaints about councillors’ conduct under their council’s arrangements.

The Council’s arrangements for considering allegations against councillors

12. The Council’s Arrangements for Dealing with Standards Allegations under the Localism Act 2011 (‘the Arrangements’) are available on its website. The Council’s Monitoring Officer manages the Arrangements with help from other named Council officers. The Arrangements tell people how to access the Council’s code of conduct and those of local councils in its area. They also give information about the independent persons appointed by the Council.
13. As relevant to Mr X’s complaint, the Arrangements ask people to make a written complaint using the online form. The Monitoring Officer acknowledges the complaint and may ask the complainant for further information. The Monitoring Officer also sends the complaint to the ‘Subject Member’. (The Subject Member is the councillor complained about.)
14. Once the Council has any added information from the complainant and the Subject Member’s comments, the Monitoring Officer completes an ‘initial assessment’. The Arrangements list matters the Monitoring Officer will consider in carrying out the initial assessment. The Monitoring Officer also asks the independent person to provide their views on the complaint.
15. After receiving the independent person’s comments, the Monitoring Officer essentially must decide whether to reject or investigate the complaint. The Monitoring Officer then tells the complainant and Subject Member of the decision. A decision to reject a complaint must give reasons. The Arrangements say there is no right of appeal for a decision made after an initial assessment.

What happened

16. Mr X attended a local council meeting. Following the meeting, using the form on the Council’s website, Mr X complained about the conduct of a councillor (‘C’) at the meeting. In summary, Mr X’s complaint described what had happened at the meeting and C’s role in those events. The complaint referenced accusations of third-party abuse.
17. The Council acknowledged Mr X’s complaint. It also sent him a copy of the local council’s code of conduct and said it needed clarification of what sections of the code he believed C had breached. Mr X replied listing four parts of the code. After further emails between the Council and Mr X about confidentiality of the complaints procedure, Mr X confirmed he was happy for his complaint to proceed. The Council replied saying its next step would be to send the complaint to C for comment.
18. Following Bank Holidays and a chaser email from Mr X, the Council issued a ‘confidential’ Decision Notice (‘the Notice’). The Notice summarised the allegations made by Mr X and C’s response to the allegations. The Notice also set out the Monitoring Officer’s views, which referred to those of the independent person, on Mr X’s allegations. The Notice ended saying the Monitoring Officer had completed the initial assessment and did not believe the alleged misconduct breached the local council’s code of conduct. The Monitoring Officer rejected the complaint.
19. As relevant to Mr X’s complaint to the Ombudsman, the Notice showed Mr X and C held differing views about a third party’s behaviour at the meeting. Mr X found the behaviour unacceptable and abusive. C said abusive behaviour was not tolerated at council meetings and there had been no such behaviour at the meeting Mr X complained about. The Monitoring Officer found no evidence of the abuse alleged by Mr X or any breach of standing orders (a council’s rules for conducting meetings and other business). The Notice also said the independent person suggested Mr X should have a further opportunity to provide evidence of ‘abuse’. The Notice said the Monitoring Officer had carefully considered the independent person’s advice but disagreed with it. The Monitoring Officer considered seeking further evidence exceeded the scope of an initial assessment. And the independent person had not found Mr X’s complaint warranted an investigation. The Monitoring Officer found moving the complaint to investigation would not be proportionate or in the public interest.
20. In response to Mr X’s post Notice contact, the Council signposted him to the Ombudsman. The Council also said the Notice was not a public document and C’s comments were separate from the Monitoring Officer’s findings of fact.

Was there fault causing injustice?

Introduction

21. We are not an appeal body and cannot consider the actions of local councils and councillors that have led to a code of conduct complaint. Our role is to consider whether councils have properly followed their procedures for handling code of conduct complaints to reach a decision. So, my investigation focused on whether there was evidence of fault in how the Council applied the Arrangements to Mr X’s complaint.

Providing more information: Mr X’s and the Council’s positions

22. Mr X said the Council had not asked him for more evidence before issuing the Notice and rejecting his complaint. The Council said information about code of conduct complaints and the Arrangements were available on its website and Mr X had completed its online complaint form. The form made clear complainants needed to explain what they believed a councillor had done that breached the code of conduct. The form also said:

“It is important that you provide all of the information that you wish to have taken into account, for example:

• You should be specific, wherever possible, about exactly what you are alleging that the Councillor said or did. For instance, instead of writing that a Councillor insulted you, you should state what it was they said.
• You should provide the dates of the alleged incidents wherever possible. If you cannot provide exact dates it is important to give a general timeframe.
• You should confirm whether there are any witnesses to the alleged conduct and provide their names and contact details if possible.
• You should provide any relevant background information.”

23. The Council recognised it had asked Mr X for more information about the parts of the local council’s code of conduct he believed C had breached. It had not asked for other information because, at initial assessment, it was deciding whether to reject or investigate a complaint. The Monitoring Officer had taken the unusual step of getting external legal advice about seeking more evidence. The legal advice confirmed such a step would be procedurally incorrect as it would move the complaint to the investigation stage. The Council said the Monitoring Officer also considered the Guidance (see paragraph 8). At initial assessment, the Guidance said councils “may contact complainants for clarification of their complaint if they are unable to understand the document submitted”. And councils “may carry out preliminary enquiries [which] should be limited to readily available public records so as not to extend to a more formal investigation.”
24. The Council said, having decided not to seek evidence from Mr X, the Monitoring Officer had shared a draft of the Notice with the independent person. The independent person, while still disagreeing about seeking more information, recognised this was the Monitoring Officer’s decision under the Arrangements.

Providing more information: Consideration

25. The Arrangements allowed the Monitoring Officer to “request further information” from complainants before completing the initial assessment. The Arrangements did not qualify that statement. For example, the Arrangements did not reflect the Guidance and say further information should clarify a complaint. However, the Arrangements separated the initial assessment, when the Council might reject a complaint, and investigation of a complaint. At initial assessment, the Monitoring Officer decided whether to investigate a complaint.
26. Here, the Council did contact Mr X for more information. It effectively sought clarification of his complaint as it needed to know what parts of the code of conduct he believed C had breached. With that factual information and C’s response to the allegations, the Monitoring Officer could, in line with the Arrangements, consult the independent person (see paragraph 14).
27. It is clear the independent person held a different view to the Monitoring Officer about seeking further information. However, Mr X completed the online complaint form. And the form advised complainants to give “all” information they wanted considered and to be ‘specific’ and ‘exact’ in their allegations (see paragraph 22).
28. The Monitoring Officer also took legal advice on the issue of further evidence. This was a substantive step to take at initial assessment. It showed the seriousness the Monitoring Officer gave to the issue. The legal advice supported the Monitoring Officer’s view that, procedurally, further evidence should not be sought at initial assessment.
29. The Monitoring Officer had to decide whether to reject or investigate Mr X’s complaint at the initial assessment stage. The Monitoring Officer decided to reject the complaint. The evidence showed the Monitoring Officer took that decision having consulted with and considered the independent person’s views and after obtaining legal advice. While I recognised Mr X’s dissatisfaction with the Council for not asking for more evidence of his allegations, I saw no evidence the Monitoring Officer acted with fault.

Speaking to the investigating officer: Mr X’s and the Council’s positions

30. Mr X said he was not allowed to speak to the Monitoring Officer but C had done so. This meant a false account had taken hold. The Council said councillors often spoke to its Monitoring Officer about possible code of conduct complaints. The Monitoring Officer did not usually keep records of such conversations because little could be said or done before receipt of a complaint. Here, C had “mentioned the possibility” of a code of conduct complaint to the Monitoring Officer. And, after receipt of Mr X’s complaint, the Monitoring Officer confirmed this to C and said C would be sent a copy of the complaint. About 10 days later, C had contacted the Monitoring Officer chasing for a copy of the complaint.

Speaking to the investigating officer: Consideration

31. The Arrangements did not require the Monitoring Officer to speak to the complainant or Subject Member at initial assessment. Here, the evidence showed there had been contact between C and the Monitoring Officer about Mr X possibly making a complaint. However, that evidence did not show that C and the Monitoring Officer had discussed the complaint Mr X later made. In line with the Arrangements, C was given the opportunity to respond to Mr X’s allegations and the Notice summarised C’s response. I therefore found no evidence of fault here.

Commenting on a draft of the Notice: Mr X’s and the Council’s positions

32. Mr X said the Council did not send him a draft of the Notice for comment. This meant he had no opportunity to reply to C’s comments or to correct errors. And false allegations in the Notice could affect his ability to carry out community service. The Council said the Notice had to include C’s response to Mr X’s allegations. And not to do so would have been a procedural error. It had not treated C’s comments as raising new allegations that needed further investigation. The Notice was not a public document and was shared only with Mr X, C and the independent person.

Commenting on a draft of the Notice: Consideration

33. The summary of C’s views in the Notice included a comment allegedly made by a third party about Mr X’s behaviour. This statement caused Mr X distress and I recognised why he would want to respond to it. However, the Arrangements did not require the Council to share a draft decision notice with either the complainant or the Subject Member. So, I could not find the Council at fault because it did not share a draft Notice with Mr X (or C).
34. Mr X was also concerned the Notice could affect his role in his community given it contained a third-party comment about his behaviour. However, the Notice was marked “confidential” and was not available to the public. So, while I recognised Mr X’s concerns about the comment, I did not find the Council at fault in including it in the Notice as part of C’s response to the complaint.

Signposting: Mr X’s and the Council’s position

35. Mr X said, on issuing the Notice, the Council did not refer him to the Ombudsman or other body for further support. The Council said it had signposted Mr X to the Ombudsman when he contacted it after it had issued the Notice. However, it would include information on its website to signpost complainants to the Ombudsman.

Signposting: Consideration

36. Where appropriate, councils should signpost people to the Ombudsman. Here, the Council did not tell Mr X that he could complain to us when it issued the Notice, that was fault. However, the Council later gave Mr X that information and Mr X had complained to us. I therefore did not find any delay in signposting him to the Ombudsman caused Mr X significant injustice. And, the Council offered to update its website to avoid such signposting delay in the future.

Conclusion

37. I recognise Mr X found the Council’s decision unsatisfactory. However, the evidence showed the Council correctly applied the Arrangements to his complaint. And, under the Arrangements, the Council could reject the complaint on completion of the initial assessment. As I found no evidence of fault in how the Council reached this decision, I could not question it however strongly Mr X disagreed with it.
38. Mr X complained to us, and while the Council avoidably delayed telling him he could do so, this did not cause him any significant injustice.

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Agreed action

39. I found fault in the Council not signposting Mr X to the Ombudsman on issuing the Notice. While this fault did not cause Mr X significant injustice, it may do so to others. I therefore thanked the Council for offering to change its procedures and ensure people are appropriately signposted in the future. To formalise this, the Council agreed:

• (within five working days of this statement) to write to officers that handle complaints about councillors reminding them to signpost complainants to the Ombudsman on completion of the Council’s complaints procedure; and
• (within three months of this statement) to update its website to ensure people making complaints about councillors are told about their right to complain to the Ombudsman.

40. The Council should provide us with evidence it has complied with the actions at paragraph 39.

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Final decision

41. I completed my investigation, on the Council agreeing to the actions at paragraph 39, finding:

• no fault in the Council’s substantive decision making on Mr X’s code of conduct complaint; and
• fault but no significant injustice to Mr X in the Council’s complaint handling procedure.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman