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Contentsintroductionpre-assessmentassessmentdecisionreviewother issues to consider

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contents

introduction 3Regulations 4Background 4Responsibilities 4

pre-assessment 7Publicising the complaints system 7The submission of complaints and accessibility 7Acknowledging receipt of a complaint 9Pre-assessment reports and enquiries 10

assessment 11Initial tests 11Developing assessment criteria 11

decision 13Initial assessment decisions 13Referral for local investigation 13Referral to the Standards Board for England 13Referral back to a standards committee from theStandards Board for England 15Referral for other action 15Decision to take no action 17Notification requirements – local assessment decisions 18

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2 LOCAL ASSESSMENT OF COMPLAINTS

contents

review 20Reviews of 'no further action' decisions 20Notification requirements – reviews of local assessment decisions 20

other issues to consider 22Access to meetings and decision making 22Withdrawing complaints 22Multiple and vexatious complaints 23Case history 24Confidentiality 25Anonymous complaints 25Members with conflicts of interest 26Officers with conflicts of interest 27Personal conflicts 27Complaints about members of more than one authority 28

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LOCAL ASSESSMENT OF COMPLAINTS 3

introductionThis guidance is designed to help members and officers in relevantauthorities who are involved in the assessment of complaints that amember may have breached the Code of Conduct. It reflects the StandardsCommittee (England) Regulations 2008 (the regulations). Theseregulations are mandatory and this guidance must be taken into account byyour authority.

This guidance details each stage of the assessment of complaints andoffers suggestions for effective practice. In addition, it provides a toolkit ofuseful document templates that may be used or adapted by authorities asrequired.

The guide is aimed primarily at members of standards committees andmonitoring officers, but will also provide a useful reference tool for allmembers and officers involved in the assessment of complaints.

It applies to:

� district, unitary, metropolitan, county and London borough councils� English police authorities� fire and rescue authorities (including fire and civil defence authorities)� the London Fire and Emergency Planning Authority� passenger transport authorities� the Broads Authority � national park authorities� the Greater London Authority� the Common Council of the City of London� the Council of the Isles of Scilly

Each authority must develop effective procedures to fulfil its legislativerequirements. Members and officers involved in the assessment ofcomplaints must take this guidance into account when doing so.

You can contact the Standards Board for England on 0845 078 8181 or [email protected]

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introductionRegulations

The Standards Board for England hasissued this guidance to reflect theStandards Committee (England)Regulations 2008 (the regulations) inrespect of the local assessment ofcomplaints. These regulations derive fromthe Local Government Act 2000, asamended by the Local Government andPublic Involvement in Health Act 2007.

The regulations set out the framework forthe operation of a locally based system forthe assessment, referral, investigation andhearing of complaints of membermisconduct. Under the regulations,standards committees must take thisguidance into account.

The regulations do not cover joint workingbetween authorities. The governmentplans to issue more regulations to providea framework for authorities to work jointlyon the assessment, referral, investigationand hearing of complaints of misconductby their members.

Background

More than 100,000 people give their timeas members of authorities. The majority doso with the very best motives, and theyconduct themselves in a way that is beyondreproach. However, public perception tendsto focus on a minority who in some wayabuse their positions or behave badly.

Anyone who considers that a member mayhave breached the Code of Conduct maymake a complaint to that member’s local

standards committee. Each complaintmust then be assessed to see if it fallswithin the authority’s legal jurisdiction. Adecision must then be made on whethersome action should be taken, either as aninvestigation or some other form of action.

When a matter is referred for investigationor other action, it does not mean that thecommittee assessing the complaint hasmade up its mind about the allegation. Itsimply means that the committee believesthe alleged conduct, if proven, mayamount to a failure to comply with theCode and that some action should betaken in response to the complaint.

The process for dealing with matters at alocal level should be the same for allmembers. It must be fair and be seen tobe fair.

Responsibilities

The assessment of complaints that amember may have breached the Code ofConduct is a new function for standardscommittees. It was previously undertakencentrally by the Standards Board forEngland.

Where a member is the subject of anallegation, we shall refer to that memberas a subject member.

We shall use the term independentmember to describe a person – not amember or officer of that or any otherrelevant authority – who is appointed to anauthority’s standards committee.Independent members work with the

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introductionauthority to develop and maintainstandards of conduct for members and areappointed under Section 53 of the LocalGovernment Act 2000 and Regulation 5 ofthe regulations. At least 25% of themembers of a standards committee mustbe independent members.

In order to carry out its functions efficientlyand effectively, the standards committeemust establish sub-committees. Creatingsub-committees will allow the separatefunctions involved in the handling of casesto be carried out without conflicts ofinterest. These functions are:

� the initial assessment of a complaintreceived by the standards committee

� any request a standards committeereceives from a complainant to reviewits decision to take no action inrelation to a complaint

The standards committee must establish asub-committee which is responsible forassessing complaints that a member mayhave breached the Code. We shall refer tothis as the assessment sub -committee.

The assessment sub-committee will needto consist of no less than three membersof the standards committee, including anindependent member. They must also bechaired by an independent member.

A complainant may make a request for areview of a standards committee’s decisionwhere it decides to take no further actionon a complaint. The standards committeemust establish a sub-committee which is

responsible for carrying out these reviews.We shall refer to this as the reviewsub-committee.

This committee will also need to consist ofno less than three members of thestandards committee, including anindependent member. They must also bechaired by an independent member.

There should be a minimum of threeindependent members on the standardscommittee to ensure that there is anindependent member available without aconflict of interest for both the assessmentand review sub-committees.

The standards committee can theneffectively carry out these statutoryfunctions, allowing for the situation of oneindependent member of the standardscommittee being absent or unavailable.

If the authority is responsible for anyparish or town councils there should alsobe a minimum of three parish or towncouncil representatives on the standardscommittee. This will ensure that there is aparish or town council representativeavailable without a conflict of interest forboth the assessment and reviewsub-committees when a complaint isconsidered about a member of a parish ortown council.

The assessment and reviewsub-committees are not required to havefixed membership or a fixed chair.

Standards committee members who havebeen involved in decision making on the

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introductioninitial assessment of a complaint must nottake part in the review of that decision.This is to minimise the risk of conflicts ofinterest and ensure fairness for all parties.

Standards committee members involved ina complaint’s initial assessment, or in areview of a standards committee’sprevious decision to take no further action,can take part in any subsequent standardscommittee hearing.

The purpose of the initial assessmentdecision or review is simply to decidewhether any action should be taken on thecomplaint – either as an investigation orsome other action. The assessment andreview sub-committees make no findingsof fact. Therefore, a member involved atthe initial stage or the review stage mayparticipate in a subsequent hearing,because a conflict of interest does notautomatically arise.

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pre-assessment Publicising the complaints system

Each authority is required to publish anotice detailing where Code of Conductcomplaints should be sent to. This is toensure that members of the public areaware of the change of responsibility forhandling Code complaints and what theprocess entails. If an authority isresponsible for parish and town councils,the notice should make this clear.

The complaints system may be publicisedthrough:

� an authority’s website� advertising in one or more local

newspapers� an authority’s own newspaper or

circular� notices in public areas such as local

libraries or authority reception areas

It is important that the public noticereaches as many people as possible sothat members of the public know how tocomplain if necessary.

The standards committee must alsocontinue to publicise regularly the addressthat misconduct complaints should be sentto. In addition, the standards committeeneeds to alert the public to any changes insuch arrangements.

Authorities need to think carefully abouthow publicity for their complaints system isworded. This is to ensure that members ofthe public are clear about how to complain,who to complain to, and if there may be analternative to a formal complaint to thestandards committee.

Authorities should also consider whethertheir constitution requires an amendmentto reflect the introduction of the localassessment of complaints. Theconstitution should make it clear that thecitizen's right is to complain to the localstandards committee and not to theStandards Board for England.

The standards committee must publish, inwhatever manner it considers appropriate,details of the procedures it will follow inrelation to any written allegation receivedabout a member.

The submission of complaints andaccessibility

There are two main ways in whichauthorities can set up procedures for thesubmission of complaints that a membermay have breached the Code of Conduct:

� Authorities may choose to integrate themaking of Code complaints into theexisting complaints framework. Thiswill mean that when a complaint isreceived, it can be analysed to decidewhich of the complaints processes ismost appropriate. The authority canthen advise the complainantaccordingly.

� Authorities may choose to develop aseparate process for Code complaintsso the process for such complaints isdistinct from all other complaints.

When deciding which option is mostappropriate, authorities should considerthat some complainants will not knowwhere to direct their complaint.

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pre-assessment Some complaints may also need to beconsidered through more than one of anauthority’s complaint processes.

Officers dealing with incoming complaintswill need to be alert to a complaint that amember may have breached the Code. If awritten complaint specifies or appears tospecify that it is in relation to the Code,then it should be passed to theassessment sub-committee forconsideration.

Where an authority is responsible forparish and town councils, it should makethis clear. It should also consider whethera separate complaint form or section of acomplaint form should be used.

Where an existing complaint system isused, complaint forms may need to beamended to take into account complaintsunder the Code. Alternatively, authoritiesthat choose to develop a separate systemfor the submission of Code complaintsmay produce a separate complaint formfor this.

Without using a separate complaint form,authorities may find it sufficient to giveclear guidelines as to the information thatcomplainants need to provide.

This should include:

� the complainant’s name, address andother contact details

� complainant status, for example,member of the public, fellow member orofficer

� who the complaint is about and theauthority or authorities that themember belongs to

� details of the alleged misconductincluding, where possible, dates,witness details and other supportinginformation

� equality monitoring data if applicable,for example nationality of thecomplainant

� a warning that the complainant’sidentity will normally be disclosed tothe subject member. Note: inexceptional circumstances, if it meetsrelevant criteria and at the discretion ofthe standards committee, thisinformation may be withheld.

Complaints must be submitted in writing.This includes fax and electronicsubmissions. However, the requirement forcomplaints to be submitted in writing mustbe read in conjunction with the DisabilityDiscrimination Act 1995 and therequirement to make reasonableadjustments.

An example of this would be in assisting acomplainant who has a disability thatprevents them from making their complaintin writing. In such cases, authorities mayneed to transcribe a verbal complaint andthen produce a written copy for approvalby the complainant or the complainant’srepresentative.

Authorities should also consider whatsupport should be made available to

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pre-assessment complainants where English is not thecomplainant’s first language.

When a complaint is addressed to theauthority’s monitoring officer, themonitoring officer should determinewhether the complaint should be directedto the assessment sub-committee orwhether another course of action isappropriate. If the complaint is clearly notabout member conduct, then themonitoring officer does not have to pass itto the assessment sub-committee.

A complaint may not necessarily be madein writing, for example it may be a concernraised with the monitoring officer verbally.In such cases, the monitoring officer shouldask the complainant whether they want toformally put the matter in writing to thestandards committee. If the complainantdoes not, then the monitoring officer shouldconsider the options for informal resolutionto satisfy the complainant.

Acknowledging receipt of a complaint

The monitoring officer has the discretion totake the administrative step ofacknowledging receipt of a complaint andtelling the subject member that a complainthas been made about them. Whenconsidering whether to do so, they shouldbear in mind the standards committee’sprocedures with regard to withholdingsummaries. Please see the section onNotification requirements on page 18 forfurther information.

The notification can say that a complainthas been made, and state the name of the

complainant (unless the complainant hasrequested confidentiality and thestandards committee has not yetconsidered whether or not to grant it) andthe relevant paragraphs of the Code ofConduct that may have been breached. Itshould also state that a written summary ofthe allegation will only be provided to thesubject member once the assessmentsub-committee has met to consider thecomplaint, and the date of this meeting, if known.

If a monitoring officer chooses to tell asubject member, the monitoring officer willneed to be satisfied that they have thelegal power to disclose the informationthey choose to reveal. In particular, themonitoring officer will need to consider anyof the restrictions set out in Section 63 ofthe Local Government Act 2000 and asmodified by Regulation 12 of theregulations. These are the provisionswhich deal with restrictions on disclosureof information. Additionally, the impact ofthe Data Protection Act 1998 should beconsidered.

Only the standards committee has thepower, under Section 57C(2) of the LocalGovernment Act 2000, as amended, togive a written summary of the allegation toa subject member.

The administrative processes that theauthority adopts should be agreed with thestandards committee as part of theprocesses and procedures that they mustpublish.

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pre-assessment Pre-assessment reports and enquiries

Authorities may decide that they want themonitoring officer, or other officer, toprepare a short summary of a complaintfor the assessment sub-committee toconsider. This could, for example, set outthe following details:

� whether the complaint is withinjurisdiction

� the paragraphs of the Code of Conductthe complaint might relate to, or theparagraphs the complainant hasidentified

� a summary of key aspects of thecomplaint if it is lengthy or complex

� any further information that the officerhas obtained to assist the assessmentsub -committee with its decision – thismay include:

a) obtaining a copy of a declarationof acceptance of office form andan undertaking to observe theCode

b) minutes of meetingsc) a copy of a member’s entry in

the register of interestsd) information from Companies

House or the Land Registry e) other easily obtainable

documents

Officers may also contact complainants forclarification of their complaint if they areunable to understand the documentsubmitted.

Pre-assessment enquiries should not becarried out in such a way as to amount toan investigation. For example, they shouldnot extend to interviewing potentialwitnesses, the complainant, or the subjectmember.

Officers should not seek opinions on anallegation rather than factual informationas this may prejudice any subsequentinvestigation. They should also ensuretheir report does not influence improperlythe assessment sub-committee’s decisionor make the decision for it.

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assessment Initial tests

Before assessment of a complaint begins,the assessment sub-committee should besatisfied that the complaint meets thefollowing tests:

� it is a complaint against one or morenamed members of the authority or anauthority covered by the standardscommittee

� the named member was in office at thetime of the alleged conduct and theCode of Conduct was in force at thetime

� the complaint, if proven, would be abreach of the Code under which themember was operating at the time ofthe alleged misconduct

If the complaint fails one or more of thesetests it cannot be investigated as a breachof the Code, and the complainant must beinformed that no further action will betaken in respect of the complaint.

Developing assessment criteria

The standards committee or itsassessment sub-committee will need todevelop criteria against which it assessesnew complaints and decides what action, ifany, to take. These criteria should reflectlocal circumstances and priorities and besimple, clear and open. They shouldensure fairness for both the complainantand the subject member.

Assessing all new complaints byestablished criteria will also protect thecommittee members from accusations ofbias. Assessment criteria can be reviewedand amended as necessary but this shouldnot be done during consideration ofa matter.

In drawing up assessment criteria,standards committees should bear in mindthe importance of ensuring thatcomplainants are confident that complaintsabout member conduct are taken seriouslyand dealt with appropriately. They shouldalso consider that deciding to investigate acomplaint or to take other action will costboth public money and the officers’ andmembers’ time. This is an importantconsideration where the matter is relativelyminor.

Authorities need to take into account thepublic benefit in investigating complaintswhich are less serious, politicallymotivated, malicious or vexatious.Assessment criteria should be adoptedwhich take this into account so thatauthorities can be seen to be treating allcomplaints in a fair and balanced way.

To assist in developing the criteria foraccepting a complaint or for deciding totake no further action on it, a standardscommittee or assessment sub-committeemay want to ask itself the followingquestions and consider the followingresponse statements. These will provide agood foundation for developingassessment criteria in the context of localknowledge and experience:

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assessment Q: Has the complainant submitted

enough information to satisfy theassessment sub-committee that thecomplaint should be referred forinvestigation or other action?

If the answer is no: “The informationprovided was insufficient to make adecision as to whether the complaintshould be referred for investigation orother action. So unless, or until, furtherinformation is received, the assessmentsub-committee is taking no further actionon this complaint.”

Q: Is the complaint about someonewho is no longer a member of theauthority, but is a member ofanother authority? If so, does theassessment sub-committee wish torefer the complaint to the monitoringofficer of that other authority?

If the answer is yes: “Where the memberis no longer a member of our authority butis a member of another authority, thecomplaint will be referred to the standardscommittee of that authority to consider.”

Q: Has the complaint already been thesubject of an investigation or otheraction relating to the Code ofConduct? Similarly, has thecomplaint been the subject of aninvestigation by other regulatoryauthorities?

If the answer is yes: “The matter ofcomplaint has already been subject to a

previous investigation or other action andthere is nothing more to be gained byfurther action being taken.”

Q: Is the complaint about somethingthat happened so long ago thatthere would be little benefit in takingaction now?

If the answer is yes: “The period of timethat has passed since the alleged conductoccurred was taken into account whendeciding whether this matter should bereferred for investigation or further action.It was decided under the circumstancesthat further action was not warranted.”

Q: Is the complaint too trivial towarrant further action?

If the answer is yes: “The matter is notconsidered to be sufficiently serious towarrant further action.”

Q: Does the complaint appear to besimply malicious, politicallymotivated or tit-for-tat?

If the answer is yes: “The matter appearsto be simply malicious, politically motivatedor tit-for-tat, and not sufficiently serious,and it was decided that further action wasnot warranted”.

The assessment criteria that the standardscommittee adopts should be made publiclyavailable.

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decisionInitial assessment decisions

The assessment sub-committee shouldcomplete its initial assessment of anallegation within an average of 20 workingdays, to reach a decision on what shouldhappen with the complaint.

The assessment sub-committee isrequired to reach one of the three followingdecisions on a complaint about amember’s actions in relation to the Code of Conduct:

� referral of the complaint to themonitoring officer of the authorityconcerned, which under section 57A(3)of the Local Government Act 2000, asamended, may be another authority

� referral of the complaint to theStandards Board for England

� no action should be taken in respect ofthe complaint

New rules have been made about what theassessment sub-committee must do whena decision has been made. Please see thesection on Access to meetings anddecision making on page 22 for furtherinformation.

The time that the assessmentsub-committee takes to carry out its initialassessment of a complaint is key in termsof being fair to the complainant and thesubject member. It is also in the publicinterest to make a timely decision within anaverage of 20 working days. Theassessment sub-committee should

therefore aim to achieve this targetwherever possible.

Referral for local investigation

When the assessment sub-committeeconsiders a new complaint, it can decidethat it should be referred to the monitoringofficer for investigation.

The monitoring officer must write to therelevant parties informing them of thedecision and, if appropriate, advising whowill be responsible for conducting theinvestigation. Please see the section onNotification requirements on page 18 forfurther information.

Referral to the Standards Board forEngland

In most cases, authorities will be able todeal with the investigation of complaintsconcerning members of their authoritiesand, where relevant, the parish and towncouncils they are responsible for.However, there will sometimes be issuesin a case, or public interest considerations,which make it difficult for the authority todeal with the case fairly and speedily. Insuch cases, the assessmentsub-committee may wish to refer acomplaint to the Standards Board to beinvestigated by an ethical standards officer.

If the assessment sub-committee believesthat a complaint should be investigated bythe Standards Board, it must takeimmediate steps to refer the matter.It would be helpful if the assessment

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decisionsub-committee let us know the paragraphor paragraphs of the Code of Conduct thatit believes the allegation refers to and thereasons why it cannot be dealt with locally.

We may accept cases for investigation byan ethical standards officer, take no action,or refer cases back to the standardscommittee which referred them. Whendeciding which of these actions to take, wewill be principally concerned with supportingthe ethical framework nationally and locally.

We will take the following matters intoaccount in deciding which cases weshould accept in the public interest:

� Does the standards committee believethat the status of the member ormembers, or the number of membersabout whom the complaint is made,would make it difficult for them to dealwith the complaint? For example, is themember a group leader, elected mayoror a member of the authority’s cabinetor standards committee?

� Does the standards committee believethat the status of the complainant orcomplainants would make it difficult forthe standards committee to deal withthe complaint? For example, is thecomplainant a group leader, electedmayor or a member of the authority’scabinet or standards committee, thechief executive, the monitoring officeror other senior officer?

� Does the standards committee believethat there is a potential conflict ofinterest of so many members of the

standards committee that it could notproperly monitor the investigation?

� Does the standards committee believethat there is a potential conflict ofinterest of the monitoring officer orother officers and that suitablealternative arrangements cannot beput in place to address the conflict?

� Is the case so serious or complex, orinvolving so many members, that itcannot be handled locally?

� Will the complaint require substantialamounts of evidence beyond thatavailable from the authority’sdocuments, its members or officers?

� Is there substantial governancedysfunction in the authority or itsstandards committee?

� Does the complaint relate to long-termor systemic member/officer bullyingwhich could be more effectivelyinvestigated by someone outside theauthority?

� Does the complaint raise significant orunresolved legal issues on which anational ruling would be helpful?

� Might the public perceive the authorityto have an interest in the outcome of acase? For example if the authoritycould be liable to be judicially reviewedif the complaint is upheld.

� Are there exceptional circumstanceswhich would prevent the authority or its

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decisionstandards committee investigating thecomplaint competently, fairly and in areasonable period of time, or meaningthat it would be unreasonable for localprovision to be made for aninvestigation?

We will normally inform the monitoringofficer within ten working days whether wewill accept a case or whether we will referit back to the standards committee, withreasons for doing so. There is no appealmechanism against our decision.

Referral back to a standards committeefrom the Standards Board for England

If we decline to investigate a complaintreferred to us, we will normally send itback to the authority’s standardscommittee with the reasons why. Thestandards committee must then decidewhat action should be taken next.

The assessment sub-committee mustagain take an assessment decision andshould complete this within an average of20 working days.

This may be a decision not to take anyfurther action, to refer the matter for localinvestigation, or to refer the matter forsome other form of action. As theassessment sub-committee initiallydecided that the matter was seriousenough to be referred to the StandardsBoard for investigation, it is likely that it willstill think that it should be investigated.

However, if the circumstances of thecomplaint have changed since the

assessment sub-committee’s originaldecision, it may be reasonable to take adifferent decision. This decision will againneed to be communicated to relevantparties in the same way as the originaldecision was. Please see the section onNotification requirements on page 18 forfurther information.

If we decline to investigate a case referredto us, we may, in the circumstances, offerguidance or give a direction to thestandards committee, which may assistwith the standards committee’s decision.

In exceptional circumstances, we maydecide to take no further action on acomplaint referred to us by a standardscommittee. This is likely to be wherecircumstances have changed so much thatthere would be little benefit arising frominvestigation or other action, or becausewe do not consider that the complaintdiscloses a breach of the Code of Conduct.

Referral for other action

When the assessment sub-committeeconsiders a new complaint, it can decidethat other action to an investigation shouldbe taken and it can refer the matter to themonitoring officer to carry this out. It maynot always be in the interests of goodgovernance to undertake or complete aninvestigation into an allegation ofmisconduct. The assessmentsub-committee must consult its monitoringofficer before reaching a decision to takeother action.

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decisionThe suitability of other action is dependenton the nature of the complaint. Certaincomplaints that a member has breachedthe Code of Conduct will lend themselvesto being resolved in this way. They canalso indicate a wider problem at theauthority concerned. Deciding to dealpro-actively with a matter in a positive waythat does not involve an investigation canbe a good way to resolve matters that areless serious. Other action can be thesimplest and most cost effective way ofgetting the matter resolved, helping theauthority to work more effectively, and ofavoiding similar complaints in the future.

The assessment sub-committee canchoose this option in response to anindividual complaint or a series ofcomplaints. The action decided upon doesnot have to be limited to the subjectmember or members. In some cases, itmay be less costly to choose to deal with amatter in this way rather than through aninvestigation, and it may produce a moreeffective result.

It is not possible to set out all thecircumstances where other action may beappropriate, but an example is where theauthority to which the subject memberbelongs appears to have a poorunderstanding of the Code and authorityprocedures. Evidence for this may include:

� a number of members failing to complywith the same paragraph of the Code

� officers giving incorrect advice� failure to adopt the Code� inadequate or incomplete protocols for

use of authority resources

Other action may also be appropriatewhere a breakdown in relationships withinthe authority is apparent, evidence ofwhich may include:

a) a pattern of allegations ofdisrespect, bullying or harassment

b) factionalised groupings within theauthority

c) a series of ‘tit-for-tat’ allegationsd) ongoing employment issues, which

may include resolved or ongoingemployment tribunals, or grievanceprocedures

The assessment sub-committee isencouraged to consider other action on apractical basis, taking into account theneeds of their own authority and of theparish and town councils which they serve.Everyone involved in the process will needto understand that the purpose of otheraction is not to find out whether themember breached the Code – the decisionis made as an alternative to investigation. If the monitoring officer embarks on acourse of other action, they shouldemphasise to the parties concerned thatno conclusion has been reached onwhether the subject member failed tocomply with the Code.

Complaints that have been referred to themonitoring officer for other action shouldnot then be referred back to the standardscommittee if the other action is perceivedto have failed. This is unfair to the subjectmember, and a case may be jeopardised ifit has been discussed as part of amediation process. There is also adifficulty with defining ‘failure’ in terms of

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decisionthe other action undertaken. The decisionto take other action closes the opportunityto investigate and the assessmentsub-committee should communicate thisclearly to all parties.

Standards committees may find it helpfulto introduce a requirement for the partiesinvolved to confirm in writing that they willco-operate with the process of other actionproposed. An example of this would bewriting to the relevant parties outlining:

� what is being proposed � why it is being proposed� why they should co-operate� what the standards committee hopes

to achieve

However authorities choose to take thisforward, the important thing is that allparties are clear about what is, and what isnot, going to happen in response to thecomplaint.

The following are some examples ofalternatives to investigation:

� arranging for the subject member toattend a training course

� arranging for that member and thecomplainant to engage in a process ofconciliation

� instituting changes to the proceduresof the authority if they have given riseto the complaint

Standards committees may find thatresolving a matter in this way is relatively

quick and straightforward compared to afull investigation.

Decision to take no action

The assessment sub-committee candecide that no action is required in respectof a complaint. For example, this could bebecause the assessment sub-committeedoes not consider the complaint to besufficiently serious to warrant any action.Alternatively, it could be due to the lengthof time that has elapsed since the allegedconduct took place and the complaint wasmade. The decision reached by theassessment sub-committee and thereasons for it should adhere to theassessment criteria that the standardscommittee or assessment sub-committeehave agreed.

It is important to underline that where nopotential breach of the Code of Conduct isdisclosed by the complaint, no matter whatits source or whoever the subject member,no action can be taken by the standardscommittee in respect of it. The matter ofreferral for investigation or other actiontherefore does not arise.

The complainant should be advised oftheir right to ask for a review of a decisionto take no action. They should be told thatthey can exercise this right by writing tothe standards committee with theirreasons for requesting a review. Thecomplainant should be advised of the dateby which their review request should bereceived by the standards committee.

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decisionThat date is 30 days from the date on theinitial assessment decision notice.

Notification requirements – localassessment decisions

If the assessment sub-committee decidesto take no action over a complaint, then assoon as possible after making the decisionit must give notice in writing of the decisionand set out clearly the reasons for thatdecision. Where no potential breach of theCode is disclosed, the assessmentsub-committee must explain in the decisionnotice what the allegation was and whythey believe this to be the case. This noticemust be given to the relevant parties.

The relevant parties will be thecomplainant and the subject member. Ifthe subject member is a parish or towncouncillor, their parish or town council mustalso be notified. We suggest that thestandards committee sends out its decisionnotice within five working days of thedecision being made.

If the assessment sub-committee decidesthat the complaint should be referred tothe monitoring officer or to the StandardsBoard for England, it must send asummary of the complaint to the relevantparties. It should state what the allegationwas and what type of referral it made, forexample whether it referred the complaintto the monitoring officer or to theStandards Board for investigation. Thedecision notice must explain why aparticular referral decision has been made. After it has made its decision, theassessment sub-committee does not have

to give the subject member a summary ofthe complaint, if it decides that doing sowould be against the public interest orwould prejudice any future investigation.

This could happen where it is consideredlikely that the subject member mayintimidate the complainant or thewitnesses involved. It could also happenwhere early disclosure of the complaintmay lead to evidence being compromisedor destroyed. The assessmentsub-committee needs to take suchpossibilities into account when developingwith its monitoring officer any process thatnotifies a member about a complaint madeagainst them.

The assessment sub-committee shouldtake advice from the monitoring officer indeciding whether it is against the publicinterest to inform the subject member ofthe details of the complaint made againstthem. It should also take advice from themonitoring officer in deciding whetherinforming the subject member of thedetails of the complaint would prejudice aperson’s ability to investigate it.

The monitoring officer will need to carryout an assessment of the potential risks tothe investigation. This is to determinewhether the risk of the case beingprejudiced by the subject member beinginformed of the details of the complaint atthat stage may outweigh the fairness ofnotifying the subject member. An exampleof this is allowing the subject member topreserve any evidence. The monitoringofficer should then advise the assessmentsub-committee accordingly.

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decisionThe assessment sub-committee can useits discretion to give limited information tothe subject member if it decides this wouldnot be against the public interest orprejudice any investigation. Any decisionto withhold the summary must be keptunder review as circumstances change.

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reviewReviews of ‘no further action’ decisions

If the assessment sub-committee decidesnot to take any action on a complaint, thenthe complainant has a right of review overthat decision.

The review sub-committee must carry outits review within a maximum of threemonths of receiving the request. Werecommend that the review sub-committeeadopts a policy of undertaking the reviewwithin the same timescale as the initialassessment decision is taken, aiming tocomplete the review within an average of20 working days.

The review must be, and must be seen tobe, independent of the original decision.Members of the assessmentsub-committee who made the originaldecision must not take part in the review ofthat decision. A separate reviewsub-committee, made up of members ofthe standards committee, must considerthe review.

The review sub-committee should applythe same criteria used for initialassessment. The review sub-committeehas the same decisions available to it asthe assessment sub-committee.

There may be cases where furtherinformation is made available in support ofa complaint that changes its nature orgives rise to a potential new complaint. Insuch cases, the review sub-committeeshould consider carefully if it is moreappropriate to pass this to the assessmentsub-committee to be handled as a new

complaint. In this instance, the reviewsub-committee will still need to make aformal decision that the review request willnot be granted.

For example, a review may be moreappropriate if a complainant wishes tochallenge that:

� not enough emphasis has been givento a particular aspect of the complaint

� there has been a failure to follow anypublished criteria

� there has been an error in procedures

However, if more information or newinformation of any significance is available,and this information is not merely a repeatcomplaint, then a new complaint ratherthan a request for review may be moresuitable.

Notification requirements – reviews oflocal assessment decisions

If the standards committee receives areview request from the complainant, itmust notify the subject member that it hasreceived the request. We recommend thatall relevant parties are notified when areview request is received.

When the review sub-committee reviewsthe assessment sub-committee’s decisionit has the same decisions available to itthat the assessment sub-committee had. Itcould be decided that no action should betaken on the complaint. In this case, thereview sub-committee must, as soon as

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reviewpossible after making the decision, givethe complainant and the subject membernotice in writing of both the decision andthe reasons for the decision. If the subjectmember is a parish or town councillor, thereview sub-committee must also givewritten notice to the parish or town council.

If it is decided that the complaint should bereferred to the monitoring officer or to theStandards Board for England, thestandards committee should write to therelevant parties telling them this and lettingthem have a summary of the complaint.The decision notice must explain why thatparticular referral decision has been made.

We recommend that the reviewsub-committee sends out its decisionnotice within five working days of thedecision being made.

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other issues to consider

Access to meetings and decisionmaking

Initial assessment decisions, and anysubsequent review of decisions to take nofurther action on a complaint, must beconducted in closed meetings. These arenot subject to the notice and publicityrequirements under Part 5 of the LocalGovernment Act 1972.

Such meetings may have to considerunfounded and potentially damagingcomplaints about members, which it wouldnot be appropriate to make public. As such,a standards committee undertaking its rolein the assessment or review of a complaintis not subject to the following rules:

� rules regarding notices of meetings� rules on the circulation of agendas and

documents� rules over public access to meetings� rules on the validity of proceedings

Instead, Regulation 8 of the regulationssets out what must be done after theassessment or review sub-committee hasconsidered a complaint. The new rulesrequire a written summary to be producedwhich must include:

� the main points considered� the conclusions on the complaint� the reasons for the conclusion

The summary must be written havingregard to this guidance and may give thename of the subject member unless doingso is not in the public interest or wouldprejudice any subsequent investigation.

The written summary must be madeavailable for the public to inspect at theauthority’s offices for six years and givento any parish or town council concerned.The summary does not have to beavailable for inspection or sent to theparish or town council until the subjectmember has been sent the summary.

In limited situations, a standardscommittee can decide not to give thewritten summary to the subject memberwhen a referral decision has been madeand, if this is the case, authorities shouldput in place arrangements which deal withwhen public inspection and parish or towncouncil notifications will occur. This willusually be when the written summary iseventually given to the subject memberduring the investigation process. Pleasesee the section on Notificationrequirements on page 18 for furtherinformation.

Review of a decision to take no furtheraction on a complaint is not subject toaccess to information rules in respect oflocal government committees.

In addition, authorities must have regard totheir requirements under Freedom ofInformation and Data Protection legislation.

Withdrawing complaints

There may be occasions when thecomplainant asks to withdraw theircomplaint prior to the assessmentsub-committee having made a decision on it.

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In these circumstances, the assessmentsub -committee will need to decide whetherto grant the request. It would be helpful ifthe assessment sub -committee had aframework by which to consider suchrequests. The following considerationsmay apply:

� Does the public interest in taking someaction on the complaint outweigh thecomplainant’s desire to withdraw it?

� Is the complaint such that action canbe taken on it, for example aninvestigation, without the complainant’sparticipation?

� Is there an identifiable underlyingreason for the request to withdraw thecomplaint? For example, is thereinformation to suggest that thecomplainant may have been pressuredby the subject member, or anassociate of theirs, to withdraw thecomplaint?

Multiple and vexatious complaints

An authority may receive a number ofcomplaints from different complainantsabout the same matter. Authorities shouldhave procedures in place to ensure thatthey are dealt with in a manner that is apractical use of time and resources.

A number of complaints about the samematter may be considered by theassessment sub-committee at the samemeeting. If so, an officer should be askedto present one report and recommendationthat draws together all the relevant

information and highlights anysubstantively different or contradictoryinformation. However, the assessmentsub-committee must still reach a decisionon each individual complaint and follow thenotification procedure for each complaint.

Unfortunately, a small number of peopleabuse the complaints process. Authoritiesmay want to consider developing a policyto deal with this. For example, they couldbring it within the scope of any existingauthority policies on vexatious or persistentcomplainants, or take action to limit anindividual’s contact with the authority.

However, standards committees mustconsider every new complaint that theyreceive in relation to the Code of Conduct.If the standards committee has alreadydealt with the same complaint by the sameperson and the monitoring officer does notbelieve that there is any new evidence,then a complaint does not need to beconsidered.

A person may make frequent allegationsabout members, most of which may nothave any substance. Despite this, newallegations must still be considered as theymay contain a complaint that requiressome action to be taken.

Even where restrictions are placed on anindividual’s contact with the authority, theycannot be prevented from submitting acomplaint.

Vexatious or persistent complaints orcomplainants can usually be identifiedthrough the following patterns of

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behaviour, which may become apparent inthe complaints process:

� repeated complaints making the same,or broadly similar, complaints againstthe same member or members aboutthe same alleged incident

� use of aggressive or repetitivelanguage of an obsessive nature

� repeated complaints that disclose nopotential breach of the Code

� where it seems clear that there is anulterior motive for a complaint orcomplaints

� where a complainant refuses to let thematter rest once the complaintsprocess (including the review stage)has been exhausted

There are ways that authorities can reducethe resources expended. For example,they can allow a vexatious complainant todeal with only one named officer or refuseemail communication. Authorities can alsoinclude a statement in their referralscriteria that malicious or tit-for-tatcomplaints are unlikely to be investigatedunless they also raise serious matters.This will allow authorities to decide not toinvestigate or take other action on suchcomplaints if appropriate.

Case history

Authorities should consider developing acomplaints management system. Recordsof all complaints and their outcomes

should be retained in line with theauthority’s records management policy.This policy may need to be amended toreflect the authority’s new responsibilitiesin the local assessment of complaints.

Documents that relate to complaints thatthe assessment sub-committee decidednot to investigate should be kept for aminimum of 12 months after the outcomeof any review that has been concluded.This is in case of legal challenges, andalso in order to meet the Standards Boardfor England’s monitoring requirements.

Authorities should set a time limit forrecords retention after the outcome of anyhearing or result of further action inrespect of a complaint is known. Thisshould be set in accordance with theauthority’s own file retention policy and inaccordance with the principles of dataprotection.

Authorities should keep details of cases ina format that is easy to search bycomplainant name, by member name, andby authority where an authority isresponsible for parish and town councils.Authorities may also want to search byparagraph of the authority’s Code ofConduct.

Old cases may be relevant to futurecomplaints if they show a pattern ofbehaviour. Authorities will also be able toidentify complaints about the same matterthat have already been considered by thestandards committee.

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Authorities will need to consider recordsmanagement alongside the law on keepingrecords of committees.

Confidentiality

As a matter of fairness and natural justice,a member should usually be told who hascomplained about them. However, theremay be instances where the complainantasks for their identity to be withheld. Suchrequests should only be granted inexceptional circumstances and at thediscretion of the assessmentsub-committee. The assessmentsub-committee should consider therequest for confidentiality alongside thesubstance of the complaint itself.

Authorities should develop criteria bywhich the assessment sub-committee willconsider requests for confidentiality. Thesemay include the following:

� The complainant has reasonablegrounds for believing that they will beat risk of physical harm if their identityis disclosed.

� The complainant is an officer whoworks closely with the subject memberand they are afraid of theconsequences to their employment orof losing their job if their identity isdisclosed (this should be covered bythe authority’s whistle-blowing policy).

� The complainant suffers from a serioushealth condition and there are medicalrisks associated with their identitybeing disclosed. In such

circumstances, standards committeesmay wish to request medical evidenceof the complainant’s condition.

In certain cases, such as allegations ofbullying, revealing the identity of thecomplainant may be necessary forinvestigation of the complaint. In suchcases the complainant may also be giventhe option of requesting a withdrawal oftheir complaint.

When considering requests forconfidentiality, the assessmentsub-committee should also considerwhether it is possible to investigate thecomplaint without making thecomplainant’s identity known.

If the assessment sub-committee decidesto refuse a request by a complainant forconfidentiality, it may wish to offer thecomplainant the option to withdraw, ratherthan proceed with their identity beingdisclosed. In certain circumstances, thepublic interest in proceeding with aninvestigation may outweigh thecomplainant’s wish to have their identitywithheld from the subject member. Theassessment sub-committee will need todecide where the balance lies in theparticular circumstances of each complaint.

Anonymous complaints

Authorities should publish a statementsetting out how complaints receivedanonymously will be dealt with. Theassessment sub-committee may decidethat an anonymous complaint should onlybe referred for investigation or some otheraction if it includes documentary or

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photographic evidence indicating anexceptionally serious or significant matter.If so, this needs to be included in thestandards committee’s assessmentcriteria.

Members with conflicts of interest

Note: this section does not deal with anyinterests which may arise under the Codeof Conduct, which members must alsokeep in mind and deal with as appropriate.

A member of the standards committeewho was involved in any of the followingdecisions can be a member of thecommittee that hears and determines thecomplaint at the conclusion of aninvestigation:

� the initial assessment decision

� a referral back for another assessmentdecision

� a review of an assessment decision

The assessment decision relates only towhether the complaint disclosessomething that needs to be investigated orreferred for other action. It does notdetermine whether the conduct took placeor whether it was a breach of the Code.The standards committee hearing the casewill decide on the evidence before it as towhether the Code has been breached and,if so, if any sanction should apply.

The assessment process must beconducted with impartiality and fairness.There may be cases where it would not be

appropriate for a member to be involved inthe process, even if not disqualified fromdoing so by law. Any member who is acomplainant or one of the following shouldnot participate in the assessment process:

� anyone closely associated withsomeone who is a complainant

� a potential witness or victim relating toa complaint

In certain situations, a standardscommittee member might initially beinvolved with the initial assessment of acase that is then referred to the StandardsBoard for England or to the authority’smonitoring officer. The case might then bereferred back to the standards committeeto consider again. In such circumstances,the member may continue theirparticipation in the assessment process.

However, a standards committee memberwho is involved at these assessmentstages of the process, either initially orfollowing a referral back from theStandards Board or monitoring officer,must not participate in the review ofthat decision.

Authorities should ensure that theirstandards committee has sufficientindependent members, and parish or townrepresentatives where applicable, for theframework to operate effectively. This should allow for circumstances wheremembers are unable to participate forreasons of conflict of interest.

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Officers with conflicts of interest

An officer who has previously advised asubject member or who has advised thecomplainant about the issues giving rise toa complaint should consider whether theycan properly take part in the assessmentprocess. For example, a conflict of interestcould mean that the officer will not be able to:

� draft letters � prepare reports� contact complainants � attend the final hearing of that

complaint

The officer should also consider whetherthey should stand aside due to their priorinvolvement, which has been such thatothers involved may view them as biased.Officers should take legal advice if theyhave any doubts.

If the officer has taken part in supportingthe assessment or hearing process thenthey should not be involved in theinvestigation of that matter. This is so thatthe officer can minimise the risk of conflictsof interest that may arise and ensurefairness for all parties.

The monitoring officer should act as themain adviser to the standards committeeunless the monitoring officer has aninterest in a matter that would preventthem from performing the roleindependently.

If the monitoring officer is unable to takepart in the assessment process, their role

should be delegated to anotherappropriate officer of the authority, such asthe deputy monitoring officer. Similarly, therole of any other officer who is unable totake part in the assessment processshould be taken by another officer.

Smaller authorities may find it useful tomake reciprocal arrangements withneighbouring authorities. This is to ensurethat an experienced officer is available todeputise for the monitoring officer if theyare unable to take part in the assessmentprocess.

Personal conflicts

Members and officers should take care toavoid any personal conflicts of interestarising when participating in theconsideration of a complaint that amember may have breached the Code ofConduct. The provisions of the authority’sCode relating to personal and prejudicialinterests apply to standards committeemembers in meetings and hearings.

Anyone who has a prejudicial interest orwho is involved with a complaint in anyway should not take part in theassessment or review sub-committee.Decisions made in an assessment orreview sub-committee should not beinfluenced by anything outside the papersand advice put before the members in thatcommittee. The members should notdiscuss complaints with others who are notmembers of the committee which dealswith the assessment or review.Discussions between members shouldonly take place at official meetings.

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Authorities should have clear guidelines inplace on when a member or officer shouldnot take part in the assessment of acomplaint because of personal interests.These may include consideration of thefollowing:

� The complaint is likely to affect thewell-being or financial position of thatmember or officer or the well-being orfinancial position of a friend, familymember or person with whom theyhave a close association.

� The member or officer is directly orindirectly involved in the case in any way.

� A family member, friend or closeassociate of the member or officer isinvolved in the case.

� The member or officer has an interestin any matter relating to the case. Forexample, it concerns a member’sfailure to declare an interest in aplanning application in which themember or officer has an interest. Thisis despite the fact that the outcome ofany investigation or other action couldnot affect the decision reached on theapplication.

Complaints about members of morethan one authority

The introduction of the local assessment ofcomplaints may raise an issue relating towhat should happen if a complaint is madeagainst an individual who is a member ofmore than one authority – often known asa dual-hatted member.

In such cases, the member may havefailed to comply with more than oneauthority’s Code of Conduct. For example,an individual who is a member of a districtcouncil and a police authority may be thesubject of complaints that they havebreached the Code of both authorities. As such, it would be possible for both theassessment sub-committee of the districtcouncil and the assessmentsub-committee of the police authority toreceive complaints against the member.

Where a complaint is received about adual-hatted member, the monitoring officerof the authority should check if a similarallegation has been made to the otherauthority, or authorities, on which themember serves.

Decisions on which standards committeeshould deal with a particular complaintmust then be taken by the standardscommittees themselves, followingdiscussion with each other. They may takeadvice as necessary from the StandardsBoard for England.

This will allow for a cooperative approach,including sharing knowledge andinformation about local circumstances, andcooperation in carrying out investigationsto ensure resources are used effectively.

Authorities should also consider whetherthey need to establish a data sharingprotocol with other relevant authorities.The government and the InformationCommissioner’s Office have producedguidance on such protocols. Visitwww.ico.gov.uk for further details on thework of the Information Commissioner.

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OF COMPLAINTS LOCAL ASSESSMENT

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Transcript of OF COMPLAINTS LOCAL ASSESSMENT