Summary: Mr X complained about the Council’s decision not to investigate his Code of Conduct complaint made against a town councillor. We find the Council at fault for not considering Mr X’s complaint, because the arrangements it has in place do not fulfil legal requirements. This has caused Mr X avoidable frustration. The Council has agreed to apologise, assess his Code of Conduct complaint, and make service improvements.

The complaint

1. Mr X complained the Council refused to consider his Code of Conduct complaint about a town councillor.
2. As a result, his complaint is still outstanding.
3. Mr X wants the Council to investigate his complaint.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot investigate the actions of bodies such as town councils or town councillors. (Local Government Act 1974, sections 25 and 34(1), as amended)

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How I considered this complaint

7. I considered Mr X’s complaint and the Council’s responses. I also discussed the complaint with Mr X and met with officers from the Council too.
8. I referred to the Ombudsman’s Guidance on Remedies, (a copy of which can be found on our website).
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and legislation

10. The system of regulation of standards of member conduct in England is governed by the Localism Act 2011.
11. Under Section 28 of the Localism Act 2011, local authorities (other than parish and town councils) must have ‘arrangements’ in place to handle complaints about councillors – whether of the authority itself or a town or parish council within the authority’s area - breaching the Code of Conduct. This process must include appointing at least one Independent Person to give their opinion before making decisions on investigated complaints.
12. In the case of R (Harvey) v Ledbury Town Council [2018], the court confirmed section 28 of the Localism Act placed the duty of investigation and decision of allegations against members of a parish or town council on the principal authority.
13. In the case of R (Taylor) v Honiton Town Council and East Devon District Council [2016], the court confirmed that town or parish councils have no power to investigate and determine complaints about their members. It also confirmed that the authority that makes the finding must decide what, if any, action to take about it.
14. Generally, the Monitoring Officer will first assess a complaint and decide whether it merits formal investigation. They may dismiss a complaint if, for example, there is no breach of the Code of Conduct, the councillor was not acting in an official capacity, the matter is trivial or it is not in the public interest to investigate. If they decide to carry out a formal investigation, this may involve the Monitoring Officer, another Investigating Officer and the Standards Committee or Hearings Panel and will include an Independent Person.
15. The Ombudsman does not offer a right of appeal against a council’s decision on complaints about member conduct and will not investigate the issues that prompted the complaint about member conduct. However, we can consider if there was fault in the way the Monitoring Officer or Standards Committee considered the complaint. If that is the case, we may ask the Council to review the way it has considered the complaint.

What happened

16. Mr X lives in a town in the Council’s area.
17. The Council has a policy for handling Code of Conduct complaints. It states complaints against town or parish councillors must first be referred to the relevant town or parish council for local resolution. If the complainant remains dissatisfied, they can then escalate the complaint to the District Council’s Monitoring Officer.
18. In April 2024, Mr X raised a Code of Conduct complaint about a town councillor to the Council.
19. Later in the month, the Council responded, explaining the Monitoring Officer’s statutory duties concerning towns and parishes are limited to Section 29 of the Localism Act. It said its Monitoring Officer has no statutory obligation under Section 28 to handle Code of Conduct complaints about town or parish councillors or to be involved in the investigation process for such complaints. The Council referred the matter to the town council for review.
20. During the investigation, Mr X advised he did not send his complaint to the town council first because he was following the town council’s complaint policy. This version of the policy, adopted by the town council in early 2023, specifies that the town council does not consider formal complaints about its members. It states that formal complaints about a member should be addressed to the District Council’s Monitoring Officer.
21. In response to our enquiries, the Council advised it was unaware the town council had amended its complaints policy, particularly on formal complaints against councillors. The Council said such change would not have been agreed by the Council as it does not accord with its processes as set out in the Monitoring Officer Protocol. However, the Council still will not consider Mr X’s complaint until it has been considered by the town council.

My findings

22. We cannot and do not seek to investigate the actions of the town council in this case as we have no power to do so.
23. The Localism Act 2011 specifies the Council as the authority responsible for having arrangements in place to deal with complaints about town council members’ adherence to its Code of Conduct. The court judgments referred to in paragraph 12 and 13 reinforced this responsibility by clarifying it as a duty of the principal authority. Therefore, the Council is required to decide whether to investigate complaints, decide on any breach, and decide what, if any, action to take about it.
24. While the Council, as the principal authority, can establish ‘arrangements’ for handling complaints, it cannot delegate investigation and decision making to the town council, as town councils have no lawful authority to undertake these functions. Without the final decision being taken by the Council the current arrangement means the Council is failing to meet its statutory duties under section 28 of the Localism Act 2011. This is fault. That is not though to say a full investigation must be carried out for every complaint. The power to decide what to do, in accordance with the law, remains with the Council as principal authority. That includes deciding not to investigate where it deems a complaint to be trivial or otherwise not a matter requiring detailed investigation.
25. The Council’s response to Mr X, stating that it has no statutory duty to be involved in or investigate a Code of Conduct complaint involving a town councillor, is incorrect. This is fault.
26. The Council’s refusal to assess Mr X’s complaint is fault and caused Mr X frustration, confusion, and delayed the consideration of his complaint.

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Agreed action

27. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to: 
• apologise to Mr X in line with our guidance on Making an effective apology; and
• assess Mr X’s Code of Conduct complaint.
28. Within three months of the date of my final decision, the Council should:
• amend its Monitoring Officer Protocol to prevent the outsourcing of decisions on members’ code of conduct to the Town Council, as it is not lawfully entitled to make these decisions; and
• provide training or guidance to officers handling complaints to refresh their knowledge and understanding of standards complaints related to parish or town councils.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman