The Ombudsman's final decision
Summary: The Ombudsman found fault by the Council on Mr Y’s complaint about the way it dealt with his complaint about a parish councillor. It delayed dealing with his complaint, failed to respond promptly to correspondence, failed to explore what he disclosed in emails, and failed to give clear information about the process. The action the Council has already taken remedies the injustice caused.
The complaint
Mr Y complains about the Council’s monitoring officer failing to: deal with his complaint against a local parish councillor; and carry out mediation between him and the chair of the parish council.
As a result, this caused distress as he continued to be harassed and contributed towards him having the expense of moving house.
What I have investigated The paragraph at the end of this statement explains why I have not investigated any complaint Mr Y has about the parish council, it failing to disclose information to him, or the Council’s failure to disclose information to him.
The Ombudsman’s role and powers
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) 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
Council’s councillor complaint process The Localism Act 2011 requires all councils to adopt a Code of Conduct dealing with the conduct expected of elected members acting in their official capacity When a complaint against a councillor is received, the monitoring officer assesses it, in consultation with an Independent Person, and considers the appropriate way to deal with it. An Independent Person is someone the Council is required to appoint to help deal with complaints.
This assessment can decide the appropriate way to deal with the complaint. The assessment can involve the following options: no further action; investigation by the officer to see whether the conduct amounts to a breach; other action, for example, informal resolution (such as an apology); referring the complaint for independent investigation.
At the assessment stage, the officer is trying to ascertain what behaviour is complained about, what part of the Code is breached, what evidence there is to support the complaint, and whether there is a straightforward way to resolve it.
The guidance says after a complaint is received by the officer, the Council will acknowledge the complaint by email or letter and write to the councillor complained about to let them know a complaint has been made against them and by whom.
How I considered this complaint
I considered all the information Mr Y sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent him. I did not send a complete copy because it included information about third parties which needs to remain confidential. In addition, much of it included copy correspondence with Mr Y, which he will of course already have seen.
I sent Mr Y and the Council a copy of my draft decision. I considered their responses.
What I found
In July 2020, Mr Y made a complaint to the Council’s monitoring officer (the officer) about six parish councillors. He claimed they made libellous and offensive comments about him in their emails. He could not provide further details of his complaint because the documents he received from the parish council which alerted him to their comments, were heavily redacted.
The following day, the monitoring officer replied saying he needed to know their identities if Mr Y wanted him to consider whether their behaviour breached the members Code of Conduct. The officer invited Mr Y to identify the councillors by completing an attached complaint form. He also asked him to list the sections of the Code he considered were breached, a copy of which was also enclosed.
A few days later, Mr Y returned the completed form, naming six councillors and gave a list of the breaches of the Code he alleged.
In August, the officer wrote to Mr Y explaining his role involved looking at the behaviour of the councillors against the standards set out in the Code. He needed Mr Y to further specify the breaches of the Code against each named councillor, along with evidence in support, as the documentation was not sent. The officer asked him to ‘refine’ his complaint to focus on specific councillors and their behaviours he believed breached the Code. The officer also asked if Mr Y would consider an informal approach to his complaint. If he agreed, the officer would speak to the parish council to see whether some of his concerns could be addressed. This would be an alternative to progressing with a formal complaint.
A few days later, Mr Y replied saying he agreed to an informal resolution. He would send the officer specific allegations against each named councillor.
The officer wrote to the chair of the parish council in September about the complaint against the chair and five other councillors. The officer did not have a detailed complaint at this stage from Mr Y but, the officer outlined the nature of it. He also said this might be an issue it could deal with informally and suggested a meeting, a form of mediation, might be appropriate.
Mr Y claims he hand delivered his complaint and documents to the Council’s offices in September which was closed because of Covid-19 restrictions. I have not seen proof of him delivering it. The same month, the government announced new Covid-19 restrictions in England which included a return to working from home.
A second national lockdown came in to force in November In March 2021, Mr Y emailed the officer and referred to subsequent correspondence and him providing specific details against identifiable councillors. He had redrafted his complaint to focus on the chair. He said the officer did not acknowledge it. He explained he had not been in touch with the Council because he had moved and had no internet access for several months. He was unhappy with the minutes of a parish council meeting held the month before. These said the Council had informally resolved the matter with no further action needed. In response to my draft decision, the officer said the documents he sent were about the chair, but the officer was unaware of this until March.
In April, Mr Y emailed the Council twice having received no response.
The following month, the Council acknowledged his emails telling him his complaint was with the officer. The officer then emailed Mr Y apologising for the delay. The officer agreed the parish council was wrong to say what it did in the minutes and said this to its clerk the day before. The officer noted since the parish council and Mr Y agreed to mediation, the chair had changed. The officer wanted to know if Mr Y was still happy to try it.
Mr Y replied saying he no longer agreed to informal resolution. He wanted a full investigation of his concerns. He later emailed to say he had spoken to the new chair, and both had agreed that his complaint with the Council should, ‘continue to resolution’.
In June, the parish council asked the officer for an update on two occasions after further contact from Mr Y.
In July, the officer replied. The officer told Mr Y he still needed specific details against each councillor as he had yet to receive it. The officer continued to consider mediation as the best way forward, especially as there were changes in the parish council.
The parish council contacted the officer saying it had never seen a detailed complaint from Mr Y but, its clerk and a councillor held an informal meeting with him the previous month. Mr Y then complained about the clerk. The parish council did not believe mediation was a way forward.
Mr Y replied to the officer saying he was unaware the officer was progressing mediation. He again said he had replied with a ‘refined’ complaint which was now just against the previous chair. He asked for mediation to be arranged if the parish council agreed.
The parish council suggested a mediation meeting with Mr Y, the clerk, and the previous chair. The officer arranged this for September which was then re-arranged to November. This was cancelled due to a local by-election as Mr Y was standing for the parish council and could end up a local parish councillor. The officer decided this could alter the relationship between him and the parish council.
In response to my draft decision, the officer said neither Mr Y nor the parish council were happy with his decision. Before the election, the officer decided to continue with the mediation meeting. This would only take place after the election so the relationship between Mr Y and the parish council would be clear.
After the elections, the officer decided not to proceed with the mediation meeting as the previous chair resigned and Mr Y was elected to the parish council. In addition, the officer pointed out Mr Y had also made complaints against him. The parish council emailed the officer with its own concerns and queries about his decision.
The officer withdrew his help to arrange the meeting because of various accusations from Mr Y.
The Council sent Mr Y its stage 2 response to his complaint under its complaints procedure. This confirmed: the papers he left in September did not find their way to the officer, for which it apologised; it failed to progress the informal resolution between September 2020 and March/April 2021. This was because of the officer’s workload. It accepted his case should have been dealt with more proactively but did not consider it disadvantaged either party; it was not the officer’s responsibility to resolve Mr Y’s issues with the parish council but, he had been willing to help. Mr Y and the parish council could continue without his involvement; and it apologised for not clearly explaining in correspondence the informal resolution was an alternative way of resolving the complaint without it going down the formal route.
In March 2022, the parish council told the officer it was exploring instructing independent mediators. It had already instructed an independent organisation to have a one-to-one mentoring session with Mr Y. The report and recommendation from this session was sent to Mr Y which included a recommendation for mediation.
Analysis I make the following findings on this complaint: Following Mr Y’s initial contact in July 2020, the Council did not have a detailed complaint from him about councillor conduct. This is because his email gave no specific details against individual councillors.
The officer contacted Mr Y the following day for details about the councillors he was complaining about and specific breaches claimed against the Code.
Following receipt of further details from Mr Y, the officer asked him again for more specific details and whether he was willing for an informal approach to his reports to which Mr Y agreed.
Mr Y claims he hand delivered the detailed allegations against each councillor, along with supporting evidence, in September. He says this was to a closed office. The office was closed because of Covid-19 restrictions. I have not seen evidence of him delivering them to the office. I have noted the Council, during stage 2 of the complaints process, apologised to Mr Y for failing to pass these papers on to the officer.
In March 2021, Mr Y contacted the Council having heard nothing further from it. When he did, he referred to, ‘subsequent correspondence resulting in me providing specific details against identifiable Councillors as you requested’. He said he had ‘re-formulated’ his complaint to focus on the chair which the officer had failed to acknowledge. The officer failed to respond to this email or seek clarification from him about what specific details he had sent, when, and to whom.
As already noted, the Council accepted Mr Y had in fact sent information back in September 2020. While the officer says it is not his role to actively pursue complaints, as the onus was on Mr Y to provide information, Mr Y’s email should have alerted him to the possibility that information had been sent which had not made its way to him. The failure of the officer to explore Mr Y’s claim in the email, and the failure of the Council to forward this information to the officer, is fault.
The officer says he was unaware Mr Y had provided the information until March 2021. While I appreciate the difficulties national Covid-19 restrictions were having at this time, I note we issued guidance to local authorities in May 2020, ‘Good Administrative Practice during the response to Covid 19’. This acknowledged complaint handling capacity would probably be reduced for a time but, it was important for authorities to still deal effectively with the most serious and high-risk issues brought to their attention. While Mr Y’s did not fall within these categories, our guidance also encouraged councils to try and avoid blanket delays, be realistic with complainants about timescales for responding, and make sure reasons for delays are given and documented.
Mr Y emailed the officer again in April. In his email, he again referred to his ‘previous submission of evidence as requested’. The officer failed to respond to this email. The officer also failed to ask him about his previous submission. This is fault.
Mr Y sent a further email to the officer nearly a week later. Again, he referred to his, ‘subsequent specific complaint against’ the chair, the only councillor he could identify. He complained he received no communication from the officer since September 2020. He was also unhappy with the parish council minutes stating his complaint was informally resolved.
It took the Council almost a month to acknowledge his email. Shortly after, the officer then replied to Mr Y, apologising for the delay. I consider the delay responding to his correspondence amounts to fault.
When he responded, the officer said the position was both the parish council and Mr Y were willing to try mediation. This had been the situation eight months earlier. In response to the draft decision, the officer explained he has complaints that do not progress because information is not provided at the initial stage. He says to his knowledge, nothing was provided between Sept 20 and March 21.
In its response to my draft decision, the Council explained it was a difficult period as it had to deal not only with the pressures of the pandemic, but changes in political control, and a significant increase in Code of Conduct/member behaviour issues. The Council acknowledged the unprecedented workload and pressure the officer was under during this time.
The Council also accepted it failed to clearly explain to Mr Y the difference between a formal and informal approach to his complaint.
I am satisfied the identified fault caused injustice to Mr Y. This caused him distress in the form of confusion, frustration, lost opportunity to have the matter progressed properly, and the uncertainty of not knowing whether the outcome would have differed but for the fault. I am not satisfied the faults found caused Mr Y to move house.
I am also satisfied the following action remedied the injustice caused to Mr Y: the actions the parish council took recently which involved asking the Council for information about independent mediators, instructing an outside organisation who met Mr Y, and this organisation issuing a report with recommendations. I am satisfied the parish council took steps itself to try and reach a resolution on Mr Y’s complaint; the former chair is no longer a councillor and Mr Y is now a councillor; the apology the Council gave in its stage 2 response for: the papers he left at its offices in September 2020 not finding their way to the officer; failing to progress the informal resolution between September 2020 and March/April 2021 due to the officer’s workload; failing to make it clearer the informal resolution was seen as a way of resolving the complaint without it being progressed formally; the introduction by the Council of a new complaint handling procedure; and the approval of an additional professional post within its legal team.
Final decision
I found fault on Mr Y’s complaint against the Council. The action the Council has already taken remedies the injustice caused.
Parts of the complaint that I did not investigate I did not investigate the following complaints from Mr Y:
Investigator's decision on behalf of the Ombudsman