Under section 28(6) Localism Act 2011 Warrington Borough Council has agreed these arrangements for dealing with standards complaints against members of Warrington Borough Council, or members of parish council’s within the borough of Warrington.

At its meeting on 10 September 2012 Full Council agreed to appoint the Council’s Monitoring Officer as the proper officer for receiving complaints relating to potential breaches of the Member’s Code of Conduct.

 A copy of the Full Council Delegation can be found here 

• Councillor_Complaints_Procedure.pdf (warrington.gov.uk) 

and the Member’s Code of Conduct for pre May 2021 here 

•  Councillor Code of Conduct - 8 May 2021 (warrington.gov.uk) 

and post May 2021 here 

• Code of Conduct for councillors - May 2023 (warrington.gov.uk).

Making a complaint

If someone wishes to complain about the behaviour of a member of Warrington Borough Council or a parish councillor in the borough, they must make their complaint by e-mailing or writing to the Monitoring Officer, whose details are:

Matthew Cumberbatch

Director of Law and Governance and Monitoring Officer Email: [email protected]

Written complaints: Standards Committee, West Annexe, Town Hall, Sankey Street, Warrington, WA1 1UH.

A Complainant may complete the standard Member Complaint Form  https://www.warrington.gov.uk/sites/default/files/2019- 09/Member_Complaint_Form_May_2019.pdf) and must give sufficient information about why they consider there has been a failure to comply with the relevant Members’ Code of Conduct. The Monitoring Officer will acknowledge receipt and tell the Complainant what happens next.

Complainants should consider what outcome they hope to achieve from the complaint.

No action shall be taken in respect of any anonymous complaints received unless, in the opinion of the Monitoring Officer, to do so would be in the public interest. For example, if an allegation is made of a criminal nature and evidence is provided to support the allegation, the matter may be referred to the Police or the matter raised should be considered under the Council's Whistleblowing Policy.

Initial assessment

There is no process laid down in law as to how complaints are to be handled. The Monitoring Officer (and in their absence the Deputy Monitoring Officer or other officer appointed by the Monitoring Officer) will consider whether the complaint is a matter that they can deal with. In order to deal with the complaint it must satisfy all of the below:
 

• Be made against one or more named members of the authority or of a parish or town council the authority is responsible for;
• The Subject Member was in office at the time of the alleged conduct;
• The complaint relates to matters where the Subject Member was acting as a councillor or representative of the authority and it is not a private, unrelated matter;
• The complaint, if proven, could be a breach of the Code under which the Subject Member was operating at the time of the alleged misconduct

If the complaint fails one or more of these tests above it will not be investigated as a breach of the Members’ Code of Conduct and no further action will be taken in respect of the complaint.

If all of the above are satisfied, or if there is any doubt, then the Monitoring Officer will acknowledge receipt and will inform the Subject Member of the details of the complaint.

Consideration of the Complain

The Monitoring Officer will then consider the complaint in more detail and will consult the Independent Person before making a decision as to what action to take.

The Monitoring Officer will have due regard to all member’s freedom of expression under Article 10 of the European Convention on Human Rights. Article 10 provides that everyone has the right to freedom of expression and that this right includes the freedom to hold opinions and receive and impart information without interference, this is particularly the case in respect of political matters which allows a higher degree of expression that may not be permitted in non- political matters. As stated by the Court in the case of Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin),

This right is however, not absolute and may be restricted if restriction is prescribed by law and necessary in a democratic society for the protection of the rights and interests of others.

Below are the potential outcomes after initial consideration by the Monitoring Officer:

• Take no action
• The Monitoring Officer may decide that no further action is required in respect of a complaint on the basis that it does not meet the criteria at section 5(a) – (d). It may be the case that an allegation may have disclosed a potential breach of the Code but the is nevertheless no finding of fact as the Monitoring Officer does not believe it is in the public interest to pursue the matter any further.

Complaints that are about Council services, policies and/or performance will not be considered as part of this process and may be referred to the relevant service area in accordance with the Council’s Complaints Policy.
 

Similarly, complaints that are really about the political policies or performance of a Councillor in their role will not be considered by the Members’ Code of Conduct complaint process. Such complaints may be referred to the Subject Member and/or their political group for response.

Part of the decision as to whether a complaint merits further action such as an investigation will depend upon the type of complaint. For example, complaints that are; frivolous, vexatious, repetitious, historical (depending upon severity) or considered minor (‘tit for tat’) will not usually be considered in the public interest to take any action upon.

Informal resolution

The Monitoring Officer may decide that resolution of the matter is best achieved through other action. See the “Informal Resolution” section at Section D.

Formal investigation

The Monitoring Officer’s decision may be to refer the matter for a formal investigation, or to refer this decision to the Standards Sub-Committee. See the “Formal investigation” section at Section E.

Referral to relevant regulatory agency

Complaints which identify criminal conduct or a breach of other regulations may be referred to the police or any other relevant regulatory agency for consideration. In such cases the Council will consider pausing the assessment of the complaint pending action by the other body.

The suitability of an alternative course of action to an Investigation of a Complaint will be heavily influenced by the nature of the complaint. Certain complaints may indicate that there is a wider underlying problem. Deciding to deal pro-actively with such a matter in a positive way that does not involve an investigation can be a sensible way of resolving complaints. The Monitoring Officer considers that where suitable this may be the simplest and most cost effective way of promptly resolving complaints, helping the Council work more effectively, and avoiding similar complaints in the future.

Once the Monitoring Officer has made a decision, they will inform the Complainant of that decision and the reasons for it. Where they decide to take no action on a complaint, they will inform the Subject Member and in such a case, if the complaint relates to a parish councillor, will also inform the clerk.

The Monitoring Officer’s decision to take no action on a complaint is final. There is no right to have the decision reviewed, as set out in the Full Council delegation of 10 September 2012 and as set out in the Constitution adopted every year.

The potential outcomes are set out in further detail below.

Informal Resolution (also known as Local Resolution)

Following consultation with the Independent Person the Monitoring Officer may decide that Informal Resolution may be more appropriate than referring a matter to a hearing following

completion of an investigation. Matters which the Monitoring Officer might consider when looking at what whether an informal resolution appropriate for when looking if informal resolution may include:

• the same particular breach of the Code by many members, indicating poor understanding of the Code and the authority’s procedures;
• a general breakdown of relationships, including those between members and officers, as evidenced by a pattern of allegations of minor disrespect, harassment or bullying to such an extent that it becomes difficult to conduct the business of the authority;
• misunderstanding of procedures or protocols;
• misleading, unclear or misunderstood advice from officers;
• lack of experience or training;
• interpersonal conflict;
• allegations and retaliatory allegations from the same members;
• allegations about how formal meetings are conducted;
• allegations that may be symptomatic of governance problems within the authority, which are more significant than the allegations in themselves.

In cases where an investigation appears to be in the public interest, for instance because of the seriousness of the allegations, a pattern of behaviour or an allegation that challenges a member’s honesty or integrity, they are likely better dealt with by way of a formal investigation.

Similarly, trivial matters are better dealt with by a decision to take no action as opposed to Informal Resolution.

Informal Resolution may include:

• Training in a specific area such as the Members’ Code of Conduct, procedures, governance, equality and diversity;
• An apology by the Subject Member concerned;
• A withdrawal of a particular remark;
• Mediation between the Complainant and the Subject Member.

An investigation will not usually take place after an alternative resolution has been attempted even if it is not to the satisfaction of the Complainant. If the Subject Member has made a reasonable apology or has attended the training, then there will be little merit in pursuing the case further if the Complainant remains dissatisfied. In the event that Informal Resolution does not work, the Monitoring Officer can consider that whether any further action is required.

In such circumstances there shall be no reporting of the Complaint and/or its outcome to the Council or any Committee of the Council other than as part of a periodic summaries for monitoring and review purposes.

Whilst seeking Informal Resolution of the Complaint, if the Monitoring Officer is of the opinion that: 

• Informal Resolution is unlikely to be achieved at all or within an acceptable timescale; and/or
• the Subject Member fails to offer an apology or undertake the agreed remedial action within the timescales agreed or within a reasonable time; and/or
• there has been a material change in circumstances (i.e. further information coming to light and issues being raised) since the Monitoring Officer undertook the initial consideration;
• then the Monitoring Officer shall either refer the Complaint and the additional information for Formal Investigation, or request that a Hearing Panel of the Standards Sub-Committee (to be known as the Standards Sub-Committee Hearing Panel) decide whether to commence a formal investigation.
• Formal Investigation

In considering if a Formal Investigation is to take place, the Monitoring Officer has discretion to make that decision or to refer the decision to the Standards Sub-Committee.

Once the decision has been made to formally investigate, an Investigator will be appointed to conduct an investigation. The Monitoring Officer may undertake the investigation personally or alternatively may appoint:

• another person (including the Deputy Monitoring Officer); or
• another appropriate officer having regard to the nature of the allegations); or
• a Monitoring Officer/Deputy Monitoring Officer of another local authority; or
• an external investigator of appropriate experience and standing. (all an “Investigator”).

The Monitoring Officer will inform:

• The Subject Member;
• The Complainant;
• The relevant Independent Person;
• The relevant Parish Council if applicable.

The Investigator will consider all available facts and will adhere to the below key principles:

• Proportionality – the investigation should be proportionate to the seriousness or complexity of the matter under investigation.
• Fairness - the Subject Member should know what they are accused of and has an opportunity to make comments on the investigation, including on a draft report.
• Transparency - as far as is practical and having regard to an individual’s right to confidentiality, investigations should be carried out as transparently as possible – all parties should be kept up to date with progress in the case.
• Impartiality - an Investigator should not approach an investigation with pre-conceived ideas and should avoid being involved where they have a conflict of interest.

An investigation will generally involve consideration of all documentary evidence as well as conducting interviews with the Complainant, Subject Member and any witnesses. The Investigator may make such enquiries of any person as they think necessary for the purposes of the investigation.

Responsibilities of the Members and Investigator

The Subject Members and the Complainant may provide the Investigator with any documents or information, or details of any persons that they would like the Investigator to interview, that they consider may assist the investigation.

It is a breach of the Members' Code of Conduct to attempt to intimidate the Investigator or Members of the Standards Sub-Committee, or any witness, potential witness or any other person in relation to the Complaint and any investigation. Neither the Complainant nor Subject Member should attempt to discuss or otherwise communicate matters and issues relating to the Complaint in which they are involved with Members of the Standards Sub-Committee. Should the Complainant or Subject Member have any queries or concerns in respect of the Complaint or investigation, then they should raise them directly with the Monitoring Officer in writing.

Interviews

The Investigator may request any person to attend an interview and the Complainant, Subject Member and other relevant Members (as determined by the Investigator) shall co-operate fully with the Investigator and make themselves available for interview within 15 working days of the Investigator requesting a convenient time and date for interview.

It is at the Investigator’s discretion as to how they conduct and interviews i.e. face to face,telephone or alternative electronic means.

In the event that the Complainant or Subject Member(s) fails to respond to a request for interview or fail to make him/herself available for interview within 15 working days, or fails to co-operate fully with the Investigator thereby leading to unnecessary and/or unacceptable delay, the Monitoring Officer shall be entitled, after seeking the views of the Independent Person, to instruct the Investigator to complete the investigation and final report without interviewing the Complainant or Subject Member(s).

Representation

Any person who is interviewed by the Investigator may be accompanied (at their own expense) by a friend or adviser provided that that person is not a witness in the same investigation.

Notes of interviews

Where reasonably practicable, the Investigator will produce a written note of the material points of the interview and provide a copy of that note to the interviewee.

The interviewee will be asked to confirm the note as a correct record of the interview, with such corrections or amendments as they may feel necessary, otherwise the notes will be taken as agreed.

Referral back to Monitoring Officer

The Investigator may, following consultation with the Independent Person, refer an investigation to the Monitoring Officer for re-consideration as to whether the investigation should proceed where: -
 

• As a result of new evidence or information, the Investigator is of the opinion that the matter is materially less serious than may have seemed apparent to the Monitoring Officer or Standards Sub-Committee when the decision was made to refer the complaint for investigation, and a different decision may have been made had either the Monitoring Officer or Standards Sub-Committee been aware of the new evidence or information;
• The Subject Member has died, is seriously ill or has resigned from the Council or Parish Council and in the circumstances the Investigator is of the opinion that it is no longer appropriate to proceed with the investigation;
• Other circumstances arise, which in the reasonable opinion of the Investigator render it appropriate for the investigation to be referred to the Monitoring Officer or Standards Sub- Committee for re-consideration.

Investigator’s Report

The Investigator will prepare a written report at the end of their investigation which may include the following:-

• Executive summary - an outline of the allegation, who made it, details of the relevant Members’ Code of Conduct provisions and the Investigator’s finding(s) as to whether there has been a failure to comply with the code;
• Member’s details: an outline of when the Subject Member was elected, details of council responsibilities and committee membership and any relevant training;
• Complainant’s details and any relevant background;
• Summary of facts and evidence gathered;
• Investigator’s findings and reasoning - dealing with each allegation and explaining whether the Investigator considers there to have been a breach of the code and any aggravating or mitigating facts;
• Schedule: a list of witnesses interviewed and copies of relevant documents

The Investigator will decide whether to first prepare a draft version of the report, in which case it will be clearly marked “Draft”. A draft report will make clear that the report does not represent a final view.

The Investigator will send the draft report to the Monitoring Officer, the Complainant and the Subject Member who will have the opportunity to comment on the draft report, with any comments by the Complainant or Subject Member to be made within 10 working dates of receipt of the draft report.

The Investigator shall consider all comments received when preparing their final report for submission to the Monitoring Officer.

Consideration of the investigator’s report: no evidence of a breach

Where the Investigator concludes that there is no evidence of a failure to comply with the Members’ Code of Conduct, the Monitoring Officer will review the report in consultation with the Independent Person.

If the Monitoring Officer is satisfied with the Investigator’s report, they will write, with a copy

of the Investigator’s final report, to the Complainant and to the Subject Member and, where the complaint relates to a parish council member, send a copy to the parish council clerk, telling them that no further action will be taken.

If the Monitoring Officer is not satisfied that the investigation has been conducted properly, they may ask the Investigator to reconsider their report.

The Monitoring Officer will provide copies of the report to the Standards Sub-Committee for information.

Consideration of the investigator’s report: evidence of a breach

Where the Investigator concludes that there is evidence of a failure to comply with the Members’ Code of Conduct, the Monitoring Officer will review the report and will either send the matter for hearing before the Standards Sub-Committee or, after consulting the Independent Person and seek an Informal Resolution.

If the Subject Member complies with the suggested Informal Resolution, the Monitoring Officer will report the matter for information to Standards Sub Committee and no further action will be taken unless the Complainant tells the Monitoring Officer that any suggested resolution would not be adequate or if Informal Resolution cannot be achieved, the Monitoring Officer will refer the matter for hearing.

If the Monitoring Officer considers local resolution is not appropriate or this is not agreed by the Subject Member or the Complainant, the matter will be referred to a Stands Sub-Committee Hearings Panel who will conduct a hearing before deciding whether the Subject Member has failed to comply with the Member’s Code of Conduct and, if so, what action if any to take against the Subject Member.

Hearings Sub-Committee

Where a Complaint has been referred for investigation and a finding of a breach has been found by the Investigator, the Monitoring Officer shall seek to convene a Standards Sub-Committee meeting which will follow the procedure of a Hearing Panel (to be known as the Standards Sub- Committee Hearings Panel).

The Hearings Sub-Committee shall:

• consider a report of the Monitoring Officer in respect of the findings of any investigation where evidence of a breach of the Members’ Code of Conduct has been found and Informal Resolution is not appropriate, or possible; and
• Make a determination as to the matter, having regard to the advice of an Independent Person.

All relevant parties shall be entitled to attend the Hearings Sub-Committee and whilst no cross examining will be permitted they will be able to challenge any evidence provided to the committee.

At the end of the meeting, the Hearings Sub-Committee will state the decision as to whether

the Subject Member has failed to comply with the Member’s Code of Conduct or not.

Where they find that there has been no breach, it may:

• recommend, subject to the agreement of the Subject Member, that a Council media statement be issued detailing the nature and outcome of the investigation into the allegations made and the decision of the Hearings Sub-Committee; or
• subject to the agreement of the Subject Member, report the decision to a meeting of the Standards Sub-Committee.

Where they find that there has been a breach, it may reach one of the following decisions in respect of the Complaint:

• Reporting its findings to Council (or to the Parish Council) for information;
• Recommending to the Subject Member’s Group Leader (or in the case of ungrouped members, recommend to Council or to Committees) that they be removed from any or all Committees or Sub Committees of the Council;
• Recommending to the Leader of the Council that the Subject Member be removed from the Cabinet, or removed from particular Portfolio responsibilities;
• Instructing the Monitoring Officer to (or recommend that the Parish Council) arrange training for the Subject Member;
• Removing (or recommending removal to the Parish Council) the Subject Member from all outside appointments to which they have been appointed for nominated by the Council (or by the Parish Council);
• Withdrawing (or recommend to the Parish Council that it withdraws) facilities provided to the Subject Member by the Council, such as a computer, website and/or email and Internet access; or
• Excluding (or recommend that the Parish Council exclude) the Subject Member from the Council’s offices or other premises, with the exception of meeting rooms as necessary for attending Council, Committee and Sub- Committee meetings;
• To publicise as they consider appropriate, such as a notice in a local newspaper or on the Council’s website.

Appeals

There is no statutory requirement for appeals and pursuant to the Local Government Association’s Guidance on Member Code of Conduct complaints, there is no right to appeal against a Code of Conduct complaints decision.

Definitions