Summary: We will not investigate this complaint about the Council’s response to a member conduct complaint as there is not enough evidence of fault and we cannot achieve the outcome Mr X wants. It is also reasonable for Mr X to complain to the Information Commissioner about how the Council dealt with his request for information.

The complaint

1. Mr X complained a councillor breached the Councillor’s code of conduct when they shared details of his disability with other councillors and used them to mock and humiliate him. Mr X says this has caused him distress and he would like the councillor to be disciplined and to apologise personally to him. Mr X believes the Council has wrongly decided not to investigate the matter. Mr X also says the Council has not properly responded to his Subject Access Request.

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The Ombudsman’s role and powers

2. We investigate 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 or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered information provided by the complainant, the Council, and the Council’s procedure for dealing with code of conduct complaints against Council members.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Local Authorities have a duty to designate a Monitoring Officer to ensure the lawfulness and fairness of authority decision making. The Monitoring Officer must ensure the authority, its officers and members maintain high standards of conduct. Each council has different rules for dealing with complaints about code of conduct breaches.
9. The Ombudsman does not provide an appeal against the Monitoring Officer’s decisions. Nor can we investigate or comment directly on the actions of the councillors complained about. Where a council has made a decision in line with the correct procedure, taking account of the relevant evidence, we cannot question whether the decision was right or wrong, even if the complainant does not agree with it.
10. In this case, I am satisfied the Monitoring Officer dealt with the matter in line with the Council’s rules for code of conduct complaints before deciding not to take further action. The Monitoring Officer considered evidence from Mr X, consulted an Independent Person, and told the councillor of the complaint. It decided that it did not meet the threshold for an investigation and explained its reasons.
11. I understand Mr X disagrees with the Monitoring Officer’s decision not to investigate the matter and feels distressed by the comments the councillor made about him. The Council has recognised the comments caused Mr X distress and the Monitoring Officer apologised to him on behalf of the Council. This is as much as we would expect and could not achieve more.
12. However, the Monitoring Officer was entitled to use their professional judgement to decide not to investigate the complaint. As the Monitoring Officer properly considered Mr X’s concerns, in line with the Council’s criteria for code of conduct complaints, there is not enough evidence of fault by the Council for us to investigate.
13. Mr X is seeking compensation for the offence the councillor’s actions caused, but we have no power to decide questions of legal liability requiring compensation. It would be reasonable for Mr X to seek compensation through the courts in the usual way.
14. We will not investigate Mr X’s complaint that the Council failed to properly respond to a Subject Access Request. This is because the Information Commissioner is better placed to investigate such a complaint, we have already explained this to Mr X in a previous complaint.

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Final decision

15. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council to justify an investigation.

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Investigator's decision on behalf of the Ombudsman