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Sanders v Kingston, High Court, 7 October 2005

25 October 2005
The issues

Local Government – Councillors – Disqualification Or Suspension – Breach Of Code Of Conduct

The facts

The case Tribunal, drawn from the adjudication panel for England, on 25th February 2005 disqualified Mr Sanders, a councillor and former leader of a local authority, from being a councillor for a period of 18 months. Mr Sanders appealed under Section 79(15) of the Local Government Act 2000. Mr Sanders was a long standing elected member of the Peterborough City Council at the time having represented Newbrough ward for some 14 years; he was a member of the Conservative party; and since July 2001 had been leader of the Council.

The Tribunal was concerned with Mr Sanders’ conduct during an interview on 19th June 2003 and when he wrote a letter on 17th July 2003. The Tribunal found that Mr and Mrs A received housing benefit and Council tax benefit from the Council. In June a benefits investigation officer wrote to each of them telling them of her intention to interview them at the town Hall with regard to an investigation into their claims benefit. In her letters she wrote that they had reason to believe that the claims might be fraudulent and that the interview would proceed under caution. Mr A asked Councillor Sanders to go with him and his wife as he was their ward councillor. Mr Sanders said that he had previously asked Mr A whether he was guilty of benefit fraud in order to satisfy himself that he was not guilty of fraud but made no enquiries of officers at the Council either in respect of allegations or the procedures to be followed at the interview. From his contact with Mr A, Mr Sanders was aware that Mr A was a vulnerable person who had difficulty in understanding legal procedures. At the interview he raised no concern with the officers about Mr A’s ability to understand the procedures. A disagreement arose between Councillor Sanders and one of the benefit officers. Mr Sanders reacted to the way in which the benefit officer read in an “assertive” way the formal notice that had to be read to those accompanying friends and relatives at such interviews.

Mr Sanders stated that if he had any objection to the way in which Mr Wright the Benefits Officer conducted the interview, he would use his executive powers as leader to overrule him. Mr Wright replied that the interview was being conducted in accordance with PACE and that it could not be interfered with. Mr Sanders and Mr Wright disagreed. Mr Sanders raised his voice and got up to leave stating that he was stopping the interview now and that were leaving. They did so. The other Benefit Officer, Mrs Collcott, was distressed by Mr Sanders’ behaviour and believed that he had the right or power to sack her. Following the interview Mr and Mrs A were advised of a new date for the interview. Mr Sanders telephoned to say that they would not be attending because he had been ill and could not go with them.

On 17th July in response to a letter from the Benefits Officer to Mr and Mrs A rearranging the interview again for 1st August 2003, Mr Sanders wrote directly to Mrs Collcott to complain that her impatience had dragged him from his sick bed and that he was disturbed that she expected ordinary people to understand PACE. He was removed as Leader of the Council on 25th June 2003. He was not therefore the leader anymore but commented that he had given a direction when he was leader that Mr A was not to be interviewed under the conditions that Mrs Collcott wished to interview him under and that that instruction remained good until such time as the new leader countermanded it. He told her that he would not support “bully boy methods” and that she did not have the authority to proceed with the interview. Mrs Collcott found the letter intimidating in tone.

The Tribunal viewed this conduct against the background of the members code of conduct which had been adopted on 30th January 2002 and of which clause 2 stated “a member must, treat others with respect÷4, a member must not in his official capacity or any other circumstances conduct himself in a manner which could reasonably have been regarded as bringing his office or authority into dispute”.

The Tribunal found that Mr Sanders in addition to wishing to provide support and protection to a constituent had a secondary motive namely to observe as leader of the Council how the Council’s benefit fraud investigation function was performing. This he was entitled to do. His behaviour as a whole however amounted to a clear breach of paragraph 2b of the code and that the threatened use of executive powers by Mr Sanders was itself a breach in the circumstances of this interview. They found that the letter by its tone and content was unfair and unreasonable and bullying in tone and fell far short of showing the standard of respect to Officers of the Council that they were entitled to expect from members and in particular a leader of the Council. Whilst members were entitled to express reasonable criticism of Officers in this case the criticism the Tribunal found was wholly unjustified and the letter demeaning and intimidatory. The letter amounted to a breach of paragraph 4 of the code.

Mr Sanders appealed arguing that there had been an error of principle in that the Tribunal had failed to have regard to the guidance on the action to be taken by a Tribunal where a Respondent had been found to have failed to comply with the code of conduct and that the Tribunal’s decision to impose a penalty of disqualification was plainly wrong and disproportionate.

The decision

1. Was there an error of principle?

The evidence was that the guidance was before the Tribunal and that they were aware of it. There was however no reference to the guidance at the Hearing before the Tribunal. Although it was purely guidance and not a list of mandatory requirements it would almost invariably be the appropriate starting point in such cases. It would be better as the new practice was for express reference to the guidance to be made at a hearing. However a failure to refer to the guidance would not necessarily mean that there had been an error of principle. In Sloam v Standards Board for England the Judge had been prepared to assume that the Tribunal as a specialist one would have the guidance in mind even if it did not specifically refer to it in the decision. That assumption would be justified in cases where the Respondent’s conduct and the Tribunal’s response fell clearly within the guidelines. In cases such as this however where there was scope for debate as to where the Respondent’s conduct should be placed on the scale of seriousness a brief explanation of whether and if so how the guidelines have been applied would be necessary. On the facts of this case the Tribunal’s failure to engage with the guidance in its decision was an error of principle. If it had engaged with the guidance it was difficult to see how it could reasonably have concluded that the Appellant’s conduct could be equated with the kinds of conduct described in paragraph 6 of the guidance.

2. Whether the decision was plainly wrong

The letter though intemperate was neither abusive nor threatening. It was towards the lower end of the spectrum of abusive letters not infrequently received by Council officials who were merely attempting to carry out their public duties. The letter was an inexcusable breach of the code, but in the light of the guidance, disqualification for the letter alone would have been a very considerable over-reaction. A warning, reprimand or at most a short period of suspension would have been a proportionate response if the letter had been the only breach.

The ill tempered interview lasted less than 12 minutes. The Respondent’s sole motive was not to obtain personal advantage but to assist his constituent. With regard to other cases where far graver breaches of the code had occurred the disqualification was excessive and the maximum of 6 months would have been the appropriate response.

Appeal allowed – disqualification quashed.

Comments

Officers of Local Authorities may be interested to note Judge’s comment that “in terms of unfairness, unreasonableness and its bullying tone÷.[the letter was] well towards the lower end of the spectrum of abusive letters not infrequently received by Council officials who are merely attempting to carry out their public duties”.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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