Agenda item

Mr Nick Bennett, Public Services Ombudsman for Wales, will attend to give a presentation on the following topic:

‘Welsh Government is proposing reforms to all levels of local government including the introduction of the general power of competence.  Ahead of those reforms taking effect, is there anything that you think local government needs to do in order to prepare and specifically do you consider any changes might be needed to the code of conduct and the ethical regime’

There will be an opportunity for Town and Community Council representatives and committee members to ask questions of the Ombudsman and to debate the issues raised.

Mr. Nick Bennett, Public Services Ombudsman for Wales (PSOW) was in attendance with Mrs. Annie Ginwalla to deliver a presentation on the work of the PSOW team in considering complaints about public services and independent care providers in Wales.

The main areas of the presentation were:

·         Statistics for the last ten years - 126% increase in complaints received by the PSOW, resulting in 4,502 recommendations for improvement to public services across Wales.

·         Enquiries and complaints received showed an upward trend over the past five years with a welcome reduction in the number of Code of Conduct complaints.

·         Context outlined key issues including the possibility of more devolved powers for Town and Community Councils in the future.

·         Code of Conduct complaints were mainly about the promotion of equality and respect and the disclosure and registration of interests.

·         Complaints not upheld and those discontinued.

·         Code of Conduct complaints by type of Authority showed a 53/46% split between town/community councils and county/ county borough councils.

·         Flintshire facts indicated that less than 4% of Code of Conduct complaints had been made in Flintshire.  It was noted that breaches of the Code of Conduct could only be determined by the Standards Committee of that authority or by the Adjudication Panel for Wales.

·         Testing public interest involved a series of factors to determine whether to investigate the complaint or breach of the Code.  A proportionate approach was taken to focus on what mattered to people most, with each case considered on its own merits.

·         Complaints upheld - only one out of 22 complaints upheld were referred to the Adjudication Panel last year.

·         Vexatious complaints.

·         The future.

·         New PSOW Bill - four areas where the PSOW hoped to receive additional powers.

·         Conclusion

The PSOW encouraged low-level complaints between councillors to be dealt with through an adopted Local Resolution Process to enable his team to focus on more serious complaints and those generated by members of the public.  Whilst such a process was in place at county level, this was optional for Town and Community Councils who were encouraged to consider adopting the model Local Resolution Protocol produced by One Voice Wales.  During discussion, only four representatives indicated that a Local Resolution Procedure had been adopted by their Town/Community Council.  The Monitoring Officer highlighted the importance of adopting such a procedure before any live complaints.

Following the presentation, Mr. Bennett and Mrs. Ginwalla responded to a number of questions from Committee Members and Town and Community Council representatives:

Low-level persistent dominating behaviour by councillors and the impact on those councils - There was an expectation to follow some form of Local Resolution Process.  If this failed, the PSOW would investigate by first considering any documented evidence of behaviour patterns and then applying the principles of the public interest test.

Consideration of whether to proceed with an investigation (Code of Conduct) and the threshold for low-level complaints - The team was given delegated authority to consider complaints and evidence of breaches to the Code before applying the subjective public interest test set by the PSOW.  Further information could be requested, if needed, from a complainant.  If the principles of the test were not met, the team would reject the complaint and provide written reasons.  Guidance was available on the PSOW website to assist councils in respect of low-level complaints and deciding when a referral should be made.

Members against whom a complaint had been made - The PSOW team would inform the accused Member, Clerk and Monitoring Officer about the complaint.

Clarification on officer complaints - Code of Conduct refers to elected members and not officers (where a separate Code applied).  An officer failing in their legal duties would be maladministration.  PSOW could consider complaints about ‘procedural errors’ as set out in the Act.

Complaints arising from a previous complaint about an elected Member - Procedural error must be demonstrated rather than a complainant merely disagreeing with the outcome in complaints of maladministration.  Nature of the complaint must be about the service received, ie  from the service user, and that person must have suffered an injustice.  Generally, elected Members were unable to make a complaint about their own authority.  Where an elected Member was the service user, then advice could be sought from PSOW.

Options for Town/Community Councils to deal with ongoing issues arising from a complaint made to the PSOW - The council would be expected to attempt to resolve this by local resolution (if possible) in the first instance before involving the PSOW.  Town and Community Councils could adopt a protocol (similar to that adopted by Flintshire County Council) to deal with long-standing vexatious complaints affecting time and resources.  This again highlighted the importance of adopting a procedure prior to any live complaints.

Town/Community Councillor requesting a review of a decision - In this event, the PSOW would advise the relevant Town or Community Council of the review.  Reviews must generally be received within 20 days as stated in the guidance.

Where a councillor with a personal and prejudicial interest insists on speaking on that item - This should be pursued through the Local Resolution Process if possible and (at county level) referred to the Monitoring Officer.  Unresolved complaints should be referred to the PSOW.

Local Resolution Procedures - The only two known to be existence in Wales were produced by One Voice Wales (previously circulated by the Standards Committee) and another by Denbighshire County Council.  The Chief Officer agreed to circulate the latter to Town and Community Councils.

Local resolution options available - Whilst acknowledging that not all Town/Community Councils were members of One Voice Wales, it was nevertheless important to have a procedure in place particularly if Town/Community Councils were to be given more powers in the future.

Guidance sought from the Monitoring Officer on Local Resolution Procedures at Town/Community Councils - The Monitoring Officer agreed to arrange a training session for Clerks.

Responsibility on authorising financial expenditure - Members should satisfy themselves on correct spend and all accounts presented should be within the budget previously agreed.  Guidance was available from Wales Audit Office on the appropriate level of detail required before authorising.

Self-referral to PSOW - It was confirmed that this opportunity had been available for some time.  Mrs. Ginwalla agreed to look into why contrary advice had been given over the telephone to Councillor Carver.

Confidentiality - Following a decision by the PSOW not to investigate a complaint, confidentiality was no longer required unless the complaint was referred to a Standards Committee or Adjudication Panel.  Decisions taken not to investigate further could be recorded in minutes.

On behalf of those present, the Chairman thanked Mr. Bennett and Mrs. Ginwalla for their attendance and detailed presentation.