IN THE UPPER TRIBUNAL Case No GLGSE/480/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Cllr Clark in person

 

For the Respondent: Miss C Burrows, solicitor

 

Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Washington on 7 and 8 December 2009 and 27 and 28 January 2010, as regards Councillor Clark, involved the making of an error of law and is set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I remake the decision in terms that :

 

“Councillor Clark’s appeal against the decision of the Standards Committee is upheld.”

 

REASONS FOR DECISION

 

1. Cllr Clark and Cllr Fawcett at all material times were members of West Rainton and Leamside Parish Council (“the Council”). They were the two minority party members on a council of eleven members, the other nine all representing, as I understand it, a common list. The Council had experienced a history of complaints, investigations and difficult relationships, which it is not necessary to set out in detail. The Council was described by the First-tier Tribunal as “disfunctional”.

 

2. Cllr Clark and Cllr Fawcett had been adjudged by the Standards Committee of Durham County Council (“the Standards Committee”) to have breached paragraphs 3(1), 3(2)(b), 3(2)(d) and 5 of the Council’s Code of Conduct (“the Code”). They appealed to the First-tier Tribunal (then “The Adjudication Panel for England”). On that appeal, it was conceded on behalf of the Standards Committee that the finding of a breach of paragraph 3(2)(d) could not be supported. I return to the other provisions below.

 

3. The tribunal in its decision of 2 February 2010 found, among other matters, that Cllrs Clark and Fawcett breached paragraphs 3(1) and 5 of the Code, in that they failed to treat the Parish Clerk with respect and in that regard behaved so as to seriously lessen confidence in their office as Parish Councillors. Other allegations against the two Councillors were either not upheld or, where they were, were considered not to amount to a breach of the Code.

 

4. The tribunal took the view that the breaches established were severe and that:

 

“Given the severity of the breaches the Tribunal has concluded that the Appellants should each be suspended for a period of 3 months effective from today. Whilst Councillor Fawcett was the more actively engaged in the conduct towards the Clerk at the Parish Council meetings, the evidence was that this was the result of a jointly agreed strategy and Councillor Clark backed Councillor Fawcett up at the meetings. In these circumstances we do not consider it appropriate to distinguish between the Appellants in terms of sanction.”

 

The fact that the suspension may by now have been served does not detract from the fact that the tribunal’s decision may have reputational consequences for those affected.

 

5. I am concerned only with an appeal by Cllr Clark. Permission to appeal was refused by the Principal Judge of the First-tier Tribunal on 16 February 2010 on the basis that “An appeal to the Upper Tribunal on this kind of decision can be made only on a point of law” and proceeded to refuse Cllr Clark’s application on that footing.

 

6. This was the first application to reach the Upper Tribunal in a local government standards matter following the transfer on 18 January 2010 of the former Adjudication Panel for England into the system created by the Tribunals, Courts and Enforcement Act 2007. When Cllr Clark renewed his application, I queried whether because of the terms of section 78B(4) of the Local Government Act 2000 (as amended) the right of appeal in this particular context might not be limited to error of law. My reasons for that view are set out in the Appendix to these Reasons. I invited a submission from the Respondent, who agreed with the view in the Appendix and indicated that they did not oppose the granting of permission.

 

7. On 5 May, I gave permission to appeal, not limited as to fact or law. As my decision is that the tribunal’s error is one of law, I do not need formally to rule on the matters in the Appendix. This appeal falls under section 11 of the Tribunals, Courts and Enforcement Act 2007 rather than section 78B(4) of the 2000 Act – see sub-section (5).

 

8. I held an oral hearing on 11 June. Prior to that a member of the public who had been involved in making complaints about the Councillors had written to the Senior President of Tribunals making observations regarding the case and enclosing additional material. He was advised that in the normal course a person who complained about the conduct of an appellant would not be a party to an appeal nor would he be entitled in any other way to make representations at the hearing. He was advised that if exceptionally he wished to seek to do so, it would be a matter for the judge conducting the hearing to determine. He was advised of the time and place of the hearing and that it would be held in public. In the event, he did not attend, no application was made to me and I have not admitted to consideration the material submitted.

 

9. Before turning to substantive matters, I should also mention that it is the general practice of the Administrative Appeals Chamber (AAC) of the Upper Tribunal to anonymise its decisions, unless the judge considers that this is not appropriate. The AAC hears a lot of cases about matters of considerable sensitivity for individuals and where there is little or no legitimate public interest in knowing the identity of the individuals involved, such as social security, mental health, or special educational needs. The same considerations in my view do not apply to decisions about local government standards, where clearly there is a legitimate public interest in relation to appeals affecting elected representatives and accordingly this case is published without anonymising, as I envisage others in the field may come to be also. Such was of course also the practice when under the previous legal regime appeals lay to the Administrative Court.

 

10. The Tribunal considered the following parts of the Code of Conduct to be relevant. These were in the form prescribed by SI 2007/1159 which had been adopted by the Council and which the Councillors had signed:

 

3(1) You must treat others with respect

3(2) (b) You must not bully any person

3(2)(d) You must not do anything which compromises or is likely to compromise the impartiality of those who work for, or on behalf of, your authority.

5 You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.

 

To that I would add (emphasis in original):

 

1(1) This Code applies to you as a member of an authority

1(3) It is your responsibility to comply with the provisions of this Code.

 

11. It is important at the outset to recognise that this appeal is against the decision of the tribunal. There is no attempt on behalf of the respondent to say that the tribunal erred in failing to find the further breaches by the Councillors which the Standards Committee had found to exist. Thus it is on the tribunal’s findings in relation to breach in respect of Cllr Clark’s conduct towards the Parish Clerk which I must focus. These are to be found at paragraphs [76] to [87] of its reasons. I must also then focus on its decision on sanction, at [95] to [100] of its reasons.

 

12. In relation to a breach in respect of conduct towards the Parish Clerk, the Tribunal held as follows:

 

“76. The Tribunal is satisfied that the Appellants did fail to treat Mrs Briggs with respect in breach of paragraph 3(1) of the Code.

 

77. Prior to the relevant meetings they agreed on their strategy which included criticisms of the form of agenda and the minutes as well as the Clerk herself in a number of instances. Whilst they were entitled to raise criticisms of the form of the agenda and the accuracy of the minutes (indeed the style of the minutes inevitably led to such criticisms) their behaviour went beyond legitimate challenge.

 

78. It was not reasonable to persist in challenges to the form of the agenda, implicitly and explicitly raising the competency of the Clerk, after having been told at the meeting of 18 October 2007 that the agenda followed the Local Association “Toolkit” recommendations without ever articulating any basis for the continuing complaint. Equally, it was demeaning in this context, for Councillor Fawcett to express in public session at the meetings of 19 June and 18 September 2008 that the Clerk needed training. The impression given was inevitably that the Clerk was seriously lacking in competence. If there were any supportable objections to the form of the agenda those should have been properly articulated and any training issues dealt with in private session.

 

79. It was equally unfair, unreasonable and demeaning for Councillor Fawcett at the meeting of 15 January 2009, in public session, to raise the issue of referring Mrs Briggs to a disciplinary procedure. Such matter should have been referred to only in private session, as should have been obvious to the Appellants. The responsibility for ensuring that such matters are not inappropriately discussed before the public is borne by all Councillors at meetings and not just the Chairperson. Mrs Briggs was a parish clerk, a comparatively junior employee, with no right of reply in Parish Council meetings to such criticisms and public sessions were a wholly inappropriate forum within which to raise such matters.

 

80 …

 

81. It is clear from all the evidence that the Tribunal has heard that the challenges to the Clerk were made without any consideration of the effect on her or the appropriateness of the context in which they were made. Whilst the intention may not have been to belittle or demean her, that was the inevitable and entirely foreseeable consequence of the Appellants’ agreed strategy.

 

82…

 

[In paragraphs 83-85 the Tribunal found there had been no breach of paragraph 3(2)(b) of the Code (bullying).]

 

86 Turning finally to paragraph 5 of the Code, there was an agreed strategy between the Appellants to pursue a course of conduct which was in our view inevitably going to be seriously disrespectful to Mrs Briggs. It involved a consistent pattern of inappropriate public criticism which went well beyond what was legitimate having regard to the circumstances. The Appellants themselves acknowledged that the clerk had been caught in the crossfire between the factions but they should have appreciated, notwithstanding the disfunctionality of the Parish Council that the Clerk, as an employee, was not to be treated as Mrs Longbottom put it as “acceptable collateral damage”. In the Tribunal’s view, looked at objectively, their behaviour was such as would seriously lessen confidence in the Appellants’ office as Parish Councillors and the Parish Council as an employer.

 

87. The Tribunal finds that the Appellants’ conduct towards the Parish Clerk did breach paragraph 5 of the Code.”

 

13. When it came to the decision on sanction, the Tribunal, having referred to relevant guidance, said:

 

“98. Whilst the Appellants stated objective of their conduct was to improve the performance of the procedures of the Parish Council, that is not a factor which carries much weight as a mitigating factor in the circumstances of this case. It should have been obvious to them that their agreed approach involved a pattern of actions which involved repeated breaches of the Code whilst doing little to advance their stated objective. Their conduct was at the very least the main contributory factor, to the resignation of the Parish Clerk in 2009 after 27 years service.

 

99. The Tribunal has found that the disrespect shown towards the Clerk was at the high end of the spectrum of severity and represents a serious breach of the Code. It was sufficiently serious also to breach paragraph 5 of the Code. The Appellants have shown no recognition that their damaging conduct was in any sense inappropriate and there has been no hint of an apology for it. The tribunal is driven to the conclusion that there is a significant risk that, in the absence of a firm indication that their behaviour is wholly unacceptable, there is a real risk of further breaches of the Code by these Appellants.

 

100. Given the severity of the breaches the Tribunal has concluded that the Appellants should each be suspended for a period of 3 months effective from today. Whilst Councillor Fawcett was the more actively engaged in the conduct towards the Clerk at the Parish Council meetings, the evidence was that this was the result of a jointly agreed strategy and Councillor Clark backed Councillor Fawcett up at the meetings. In these circumstances we do not consider it appropriate to distinguish between the Appellants in terms of sanction.”

 

14. All of the actions referred to in paragraph [12] as having been done by a named Councillor were done by Cllr Fawcett. All the minutes relied upon by the Tribunal in its decision show Cllr Fawcett (and only Cllr Fawcett) making repeated unspecified complaint about the agenda and form of minutes. The few complaints made by Cllr Clark related to specific matters. The case against Cllr Clark is based on the existence of a “strategy which included criticisms of the form of agenda and the minutes as well as the Clerk herself in a number of instances” and that in doing so, “their behaviour went beyond legitimate challenge.” It is important to be clear as to what “behaviour” is being spoken of here. Reading the reasons as a whole, I consider that the “behaviour” referred to in paragraph 77 is that which is then particularised in paragraphs 78 and 79.

 

15. This is of particular importance in the present case, as the tribunal had earlier made findings involving a very clear distinction as to the manner in which the two Councillors conducted themselves:

 

“34. The Tribunal is satisfied on the balance of probabilities that Councillor Clark backed Councillor Fawcett up in his actions at Parish Council meetings; indeed he accepted that challenges to the minutes and criticisms of the Clerk were made as part of a joint enterprise agreed between him and Councillor Fawcett before Parish Council meetings. There is, however, no evidence that his manner of doing so involved any aggression or intimidation. The tribunal finds that he was generally calm at Parish Council meetings.

 

35. In contrast, the Tribunal is satisfied that Councillor Fawcett was generally dogmatic and aggressive in challenges to others and, when challenged became intimidating. We find as a fact that it is more likely than not that his challenges to the minutes and to the Clerk were made in that manner and without any consideration being given to the effect on her or whether the comments were appropriately made in public sessions of Parish Council meetings. At the meeting of 18 September 2008, his anger escalated to a fit of pique, evidenced by the minutes, which required the Chairman to warn him to behave and not to talk over others…”

 

16. However, it is clear that the behaviours on the basis of which the tribunal reached its conclusions was not dogmatic, aggressive and intimidating behaviour, as found to exist on the part of Cllr Fawcett, but rather that (a) there was persistent criticism of the Clerk without saying what she needed to do better; and (b) it was inappropriate to express in public matters which by their nature needed to be dealt with in private, such as the perceived need of the Clerk to undergo training, or the perceived appropriateness of disciplinary proceedings.

 

17. In relation to these matters, the breach by Cllr Clark is founded on the existence of an “agreed strategy” and the sanction in respect of Cllr Clark on the existence of such a strategy, together with the fact that Cllr Clark “backed Cllr Fawcett up at the meetings”.

 

18. The principal grounds for Cllr Clark’s appeal may be summarised as follows:

 

a. the tribunal’s finding is one of guilt by association. He has been found guilty simply because he belonged to the same political party as a colleague and sat beside him. This did not mean he necessarily condoned or even supported his position

 

b. there is no evidence that he and Cllr Fawcett had agreed to act in concert

 

c. there is no evidence to support the conclusion that he took actions that were unreasonable at any meeting or that implied a lack of respect for the Parish Clerk

 

d. the tribunal erred in concluding that he should have asked for a matter raised by Cllr Fawcett to be discussed in private, as that was properly the responsibility of the Chairman and the Councillor concerned

 

19. I would add that at any rate the points I have labelled a. and b. were before the Tribunal. As to a.:

“Councillor Clark disputed the characterisation of the Appellants’ approach to Parish Council meetings as a joint enterprise; it was a simple party political system, with Councillor Fawcett and himself being in the minority party.” (Reasons, paragraph [55].

 

20. Points c. and d. largely stand or fall on the answer to a and b; the tribunal does not attribute personal responsibility to Cllr Clark except through the “agreed strategy”, apart from (when considering sanction) his contribution through “backing Councillor Fawcett up at meetings”.

 

21. What evidence then was there about whether, and if so, how, the two Councillors engaged with one another in relation to the matters the subject of the breach found by the tribunal? Was there an “agreed strategy” and (importantly) did it extend to the acts committed by Cllr Fawcett which were in breach of the Code? I am grateful to the Judge for his note of evidence from which the extracts below are taken.

 

a. Mrs Briggs said “Cllr Fawcett spoke on behalf of Cllr Clark – this applied to both meetings... Cllr Clark “complicit in his wording. Whatever Cllr Fawcett said he agreed… Other than assumption that acting together I have no evidence…I cannot say that Cllr C ever said anything nasty about me – Cllr C always positioned himself next to Cllr F and he never sought to restrain the Cllr or show signs of disagreeing with him.

 

b. Cllr Morland said that whereas Cllr Fawcett was a bit aggressive towards Mrs Briggs and “sometimes a bit nasty”, Cllr Clark was “not nearly as nasty – didn’t demonstrate same hostility. However “Cllr Clark...wd offer comments now and again to support it particularly re legal position/codes of practice – and in suggestions re agenda being wrong – in particularly every meeting and accuracy of minutes being raised therefore Cllr Clark was supporting all way through.”

 

c. Cllr Steven Percival said “Clark usually quiet – but they act in concert – they refuse to vote on things together even when 9 other Cllrs see the benefit of sth – back people up with points and argument”

d. Mr A Percival said ”Clark is complicit…On 18/9/08 they had no respect for [Mrs Briggs] – they dismissed evth she said or did. Challenges to minutes can happen in any meeting but they were attacking. Instead of saying in conversational reas. way it was “her” and “You” - absolutely putting her down demeaning her as an individual and an officer.”

 

e .In cross examination, reference was made to a letter dated 6 May 2008 in which Mrs Briggs raised a formal grievance against “Cllr I.J. Fawcett who...is being aided and abetted in this by Cllr Clark.” The majority of the issues raised related to Cllr Fawcett, although Mrs Briggs also mentions that “They (my emphasis) have constantly complained about the agenda of the meeting being wrong but when asked to say what is wrong with it they refuse to tell us and point to me saying “She should know”, or “Ask the Clerk”. When it was put to Councillor Clark that “You associate yourself by demeanour & conduct by [this might be an error for “with”] Fawcett?” his reply was “he has not done anything wrong so why shd I disassociate myself from him.” When he was asked whether employee performance was a “private discussion matter?” and whether to raise it in public involved “ritual humiliation”, his response was simply to disagree. When asked whether he stood by Cllr Fawcett saying agenda wrong again, his reply was that “if Clerk had known what to do she wd have put right and if didn’t know shd undergo training”. When put to him that “when you supported/tacitly supported Fawcett in statements that clerk required training and defects in minutes you were publicly humiliating her”, Cllr Clark’s response was to disagree.

 

f. When asked by the judge whether advice had been given [I infer about the style of agenda and minutes and this was consistent with answers given to me], the answer was: “had been explanation at early meetings – just understood things done in wrong . Not outside meetings – nothing done…tried to introduce lots of advice – gets turned against us causing problems.- That was start of every meeting.” Cllr Clark indicated “Quite often I wd go around to [sc. Cllr Fawcett’s] house and agree things were not changing. We had effectively operated as a team.”

 

22. In my view, there was no evidence on which the tribunal was entitled to infer that the parties had agreed to act in concert in relation to the matters relied upon as constituting a breach of the Code. There was evidence of pre-meetings (as one would expect from members of a political party), noting with regret that nothing had changed and there was evidence that from time to time Cllr Clark would support Cllr Fawcett, but in my view this falls short of establishing that they had an agreed strategy to persist in raising points “without ever articulating any basis for the continuing complaint” (Tribunal reasons, [78]), to suggest in public session that the Clerk needed training [ibid.] or to suggest, likewise in public session, that the Clerk should be referred to a disciplinary procedure (Tribunal reasons, [79]). Merely to criticise the form of agenda and the minutes would not of itself be a breach of the Code, as the Tribunal at [77] acknowledged. Nor in my view was the tribunal entitled to rely at [34] on Councillor Clark’s acceptance that challenges were made “as part of a joint enterprise”; not only because that does not go far enough in the respects identified, but because Cllr Clark did not accept the existence of a joint enterprise, as [55] of the tribunal’s reasons records. Mrs Briggs’s evidence was based on assumptions as to the basis of the involvement of the two Councillors, as she acknowledged. There was evidence suggesting that these two Councillors, the only members of the minority group, acted “in concert” and that one “aided and abetted” the other, but without identifying that the respects in which they did so extended to the matters constituting a breach. The Standards Committee had originally relied on the minutes of the meetings held on 16 October 2008 and 15 January 2009 as evidencing that the Councillors “were both actively involved in challenges”. While that may have been so on some issues, they do not establish the matters on which there was found to have been a breach of the Code. Nor in my view was it possible to rely on the failure of Cllr Clark before the tribunal to dissociate himself from the actions of Cllr Fawcett as evidence of a joint enterprise to do the actions in the first place.

 

23. It follows that in my view the decision of the tribunal is not sustainable on the evidence before it and the appeal is accordingly allowed.

 

 

 

C.G.Ward

Judge of the Upper Tribunal

19 July 2010

APPENDIX

A. This was an appeal to the First-tier Tribunal against a decision of a local Standards Committee. As such, it fell to be conducted under the Standards Committee (England) Regulations 2008/1085 (“the 2008 Regulations”).

 

B. The tribunal’s decision was dated 28 January 2010. This was after the relevant amendments made by the Transfer of Tribunal Functions Order 2010 (“the 2010 Order”) which came into force, subject to transitional provisions, on 18 January 2010. Under paragraph 2 of Schedule 5 of the 2010 Order, “Any proceedings before an old tribunal which are pending immediately before the transfer date [i.e.18 January 2010] shall continue on and after the transfer date as proceedings before the new tribunal.” Accordingly, the proceedings commenced before the former Adjudication Panel for England continued on and after 18 January 2010 (and therefore up to the date of the decision) as proceedings of the “new tribunal”, that is to say the First-tier Tribunal (see paragraph 1 of Schedule 5.)

 

C. Among the amendments effected by the 2010 Order (see paragraph 61 of Schedule 2) were changes to section 78A of the Local Government Act 2000 (“the 2000 Act”). The former section 78A conferred certain rights of appeal in relation to decisions of “case tribunals”, a defined term under the 2000 Act and not one apt to include the appeal involved in these proceedings. However, on and after 18 January 2010, the scope of decisions falling within section 78A does not appear to be so limited: rather, the section addresses “where the First-tier Tribunal adjudicates on any matter under this Act.” As the sole enabling Act recited in the preamble to the 2008 Regulations is the 2000 Act, I am of the view that an adjudication under the 2008 Regulations is an adjudication “on any matter under this Act” for the purposes of section 78A.

 

D. If that be so, then the provisions of section 78B(4) and (5) as amended apply:

 

“(4) Where the First-tier Tribunal decides under section 78A that a person has failed to comply with the code of conduct of the relevant authority concerned, that person may appeal to the Upper Tribunal against that decision, or any other decision made by the tribunal by virtue of section 78A which relates to him (unless the decision is set aside under section 9 of the Tribunals, Courts and Enforcement Act 2007).

(5) An appeal may not be brought under subsection (4) on a point of law (as to which see instead section 11 of the Tribunals, Courts and Enforcement Act 2007).”

 

I can find nothing in the 2010 Order which modifies this position in this case.

 

E. Therefore, while it is open to an applicant to argue that a tribunal erred in law, in which case his appeal would be under section 11 of the 2007 Act, it seems to me that he can also seek permission to appeal in a case of this type, relying on section 78B(4).