Information on Investigations

Which Sector? > Local Authorities > Fife Council > LA/Fi/733 and 738

Note Of Decision Web Version

Complaint nos. LA/Fi/733 and LA/Fi/738 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Tim Brett, David Cunningham, Peter Grant, Alistair Hunter, Susan Leslie, Carol Lindsay, David MacDiarmid, Elizabeth Riches, David Torrance and Marilyn Whitehead of Fife Council

1. Complaint numbers LA/Fi/733 and LA/Fi/738 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Tim Brett, David Cunningham, Peter Grant, Alistair Hunter, Susan Leslie, Carol Lindsay, David MacDiarmid, Elizabeth Riches, David Torrance and Marilyn Whitehead (“the respondents”).

2. It was alleged that the respondents had contravened the Code, in particular, the key principles of Duty, Integrity, Openness and Honesty in section 2. The focus of the complaint was on whether an adequate impact assessment had been carried out before the Social Work and Health Committee voted for the introduction of revised charges for non-residential services.

3. The person complaining (“the complainant”) alleged that by voting for the implementation of revised charges for non-residential Social Work services, at meetings of the Social Work and Health Committee on 9 October 2007 and/or 4 March 2008, despite having been advised by fellow councillors that the new charging policy had not been properly impact assessed, all nine respondents breached the key principles of Duty and Integrity in paragraph 2.1 of the Code. The complainant also alleged that, with the exception of Councillors Grant and Leslie, the respondents breached the key principle of Honesty. The complainant considered that, because of his previous employment in the Health Service and his position as Chair of the Social Work Committee, Councillor Tim Brett should have been aware that the impact assessment procedure which had been carried out was inadequate and, by allowing it to be presented to the Committee, he breached the key principle of Honesty in paragraph 2.1 of the Code.

4. This part of the complaint was founded on the erroneous assumption that the obligation arising from the Disability Discrimination Act 1995 to ensure that an adequate impact assessment of the proposed charging policy had been carried out fell on councillors as individuals whereas, in fact, the obligation fell on the Council acting as a corporate body. In practice, the duty to ensure that any policy proposals presented to members for consideration are proper and lawful is carried out by the Council’s professional officers and councillors are entitled to rely on assurances from officers in this regard. Circumstances in which councillors might be responsible as individuals would be if they proceeded to take action despite having been advised by officers that such action was likely to be unlawful or improper.

5. The responsibilities which fall on Councils and other bodies under the Disability Discrimination Act 1995 are wide and, while the former Disability Rights Commission issued a statutory Code of Practice and detailed guidance on the application of the Act, the extent to which an organisation needs to go to meet its responsibilities will frequently be open to interpretation. It was important to emphasise that, in relation to these complaints, the duty of the Chief Investigating Officer was to assess the conduct of individual councillors in terms of their responsibilities under the Councillors’ Code of Conduct. It was not his responsibility to investigate the Council’s action as a corporate body. The investigation did not do so and formed no judgment on the adequacy of the impact assessment which the Council had carried out, although there were no grounds for believing that it was inadequate.

6. The unequivocal advice from the then Head of Law and Administration and from the Executive Director, Social Work, to members was that the Council had fulfilled its obligations under the Disability Discrimination Act 1995 and the proposals before the Committee were proper and lawful. I considered that the respondents were entitled to rely on this advice and I found that they had not breached the key principles of Duty, Honesty and Integrity in paragraph 2.1 of the Code. For the avoidance of doubt I added that I did not regard Councillor Brett’s position as being different from that of other councillors because of his professional background and his position as Chair of the Committee. I considered that he was equally entitled to rely on the advice from these officers and I found that he had not breached the key principle of Honesty in paragraph 2.1 of the Code.

7. The complainant also alleged that Councillor Grant had offered to answer a number of questions relating to the Council’s proposals which were outstanding at the end of a public meeting held on 1 February 2008. She claimed that she sent the questions to Councillor Grant but he did not respond and, therefore, failed in his duty to be accessible to all of the people of the area for which he had been elected to serve and to be as open as possible about his decisions and actions. She considered that he had breached the key principles of Duty and Openness in paragraph 2.1 of the Code.  The complainant further alleged that, by contending that a full impact assessment of the proposed charges had been carried out, at the meeting on 1 February 2008, Councillors Grant and Brett misled the public and, by implication, that they breached the key principle of Honesty.

8. It may be that Councillor Grant gave an undertaking to answer any questions which were outstanding at the end of the meeting, or the complainant may have understood this to be the case. While the fact that he appeared not to have responded may have amounted to a discourtesy I did not consider that it constituted misconduct. In particular, I did not consider that he had failed in his duty to be accessible or to be open, as alleged, especially when account was taken of the fact that he had made himself available at a public meeting in response to concerns expressed about the adequacy of the Council’s impact assessment. Councillors Grant and Brett, like other councillors, were entitled to rely on the advice of officers that the proposals had been impact assessed and were proper and lawful. Consequently, I considered that they had not misled the public and I found that they had not breached the key principles of Duty, Openness or Honesty in paragraph 2.1 of the Code.

9. Having considered the information that arose from my investigation, I concluded that, Councillors Tim Brett, David Cunningham, Peter Grant, Alistair Hunter, Susan Leslie, Carol Lindsay, David MacDiarmid, Elizabeth Riches, David Torrance and Marilyn Whitehead had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

29 August 2008