Guide · Councils & Local Government

Council Monitoring Officers and section 5 referrals

What council Monitoring Officers do, when sections 5 and 5A may be engaged, and how to separate a governance referral from a complaint about the officer.

A Monitoring Officer is a statutory governance officer. The role is important, but it is not a general appeal body and it is not an automatic third stage after the council's complaint procedure.

Key points

  • Principal local authorities in England, Wales and Scotland fall within the statutory Monitoring Officer framework. Northern Ireland uses a different framework.
  • Parish and town councils in England do not appoint their own section 5 Monitoring Officer.
  • A resident can refer a potential legality or governance issue, but cannot compel the officer to issue a statutory report.
  • Section 5 and section 5A apply to different parts of council decision-making where executive arrangements operate.
  • A referral to the Monitoring Officer is different from a complaint about the Monitoring Officer personally.

Which authorities have one?

AuthorityPosition
Principal councils in England and WalesWithin the section 5 framework as defined relevant authorities.
Scottish local authoritiesWithin the section 5 framework, but Scottish complaint and standards routes differ.
English parish and town councilsDo not appoint their own section 5 Monitoring Officer. The principal authority's Monitoring Officer has a role in parish member-conduct arrangements.
Welsh community and town councilsDo not import the English parish standards route. Welsh member conduct is overseen through the Public Services Ombudsman for Wales framework.
Northern Ireland councilsUse a separate local-government and ethical-standards framework.

How to identify the named Monitoring Officer and any deputy

Section 5 requires the authority to designate its Monitoring Officer. Do not rely only on an email signature or a generic “Legal and Governance” mailbox. The current postholder may be identified in the constitution, a full-council appointment report, the senior management directory, the member Code of Conduct arrangements, a Monitoring Officer protocol or an annual governance statement.

Deputy arrangements are commonly created locally through the constitution, an officer scheme of delegation or a formal appointment. Do not assume that every authority publishes a permanently named deputy, or that anyone described informally as a deputy can exercise every statutory, standards or employment function.

CheckWhat to record
Current designationThe person's name, corporate title, statutory title and appointment date.
Source of appointmentConstitution paragraph, council resolution, delegated decision or official directory.
Deputy or substituteName or post, scope of authority, trigger for acting and any limits.
Relevant capacityWhether the person acted as Monitoring Officer, legal adviser, manager, complaint handler or another role.
Change of postholderThe person holding the designation on the date of the disputed decision or referral.

If the published material is unclear, ask: “Please identify the officer designated under section 5 on the relevant date, the instrument or resolution recording that designation, and any deputy or substitution provision relied upon for this matter.”

Section 5 and section 5A

Broadly, section 5 concerns proposals, decisions or omissions outside an authority's executive, while section 5A deals with executive action where executive arrangements operate. The precise statutory wording matters. A useful referral identifies the decision-maker and capacity rather than simply demanding “a section 5 investigation”.

The unlawfulness limb concerns a contravention of an enactment or rule of law. The maladministration-related provisions are not a general power to declare any unfair event maladministration. They contain specific statutory conditions and references to the relevant Ombudsman framework.

What a focused referral should contain

ElementWhat to record
Decision or omissionThe exact act, proposal, decision or failure to act.
Decision-makerOfficer, committee, executive or full council, including the date and capacity.
Legal concernThe enactment, rule of law, constitution provision or delegation said to be engaged.
EvidenceThe shortest set of documents that proves the factual sequence.
Requested responseConfirmation that the distinct governance issue was considered, the route used and the reasons.
Other deadlinesAny appeal, tribunal, judicial review or limitation date that continues separately.

What a referral cannot compel

Using the words “section 5 referral” does not force a statutory report, a particular investigation or the outcome the sender wants. The statutory duty depends on whether the matter appears to the Monitoring Officer to meet the legal conditions. A reasoned refusal may still be challenged through the appropriate route, but disagreement with the conclusion is not itself proof of misconduct.

A Monitoring Officer referral also does not preserve a separate appeal or court deadline. Use the route that can change the underlying decision if one exists.

Referral to the officer or complaint about the officer?

A referral asks the Monitoring Officer to exercise a governance function. A complaint about the Monitoring Officer alleges fault in that individual's own conduct, judgment, participation or handling. The second question requires the council's constitution, senior-officer procedure and conflict arrangements. It should not simply be sent back to the subject officer without an explained routing decision.

Assessing the response

  • Did it recognise the separate legal or governance issue?
  • Did it identify the decision and decision-maker?
  • Did it apply the relevant statutory or constitutional test?
  • Did it distinguish the service complaint from the governance referral?
  • Did it give intelligible reasons?
  • If the officer was personally involved, did the council explain routing and safeguards?

A short negative answer can still be lawful and adequate. A long response can still be defective if it avoids the issue actually referred.