Recording and publishing officer decisions

Councils need to have a clear procedural framework and system to document and, in some cases, publish Executive and Non-Executive decisions taken by officers acting under delegated authority, so that they are lawful, transparent and accountable.

Most local authorities operate an ‘Executive’ form of governance, under which the majority of decisions are taken by a Leader and a Cabinet of elected members. These members take decisions on Executive functions. Full Council, committees and sub-committees take other (Non-Executive) decisions. In both cases, decisions may be delegated to officers.

Non-Executive functions are listed in the Local Authorities (Functions and Responsibilities) (England) Regulations 2000. These include decisions on planning, licensing, staffing, audit, member conduct and other miscellaneous matters. Anything not on the list is an Executive function.

Legislative background

In establishing a system to record and publish officer decisions, councils must comply with two separate and inconsistent sets of regulations: the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and the Openness of Local Government Bodies Regulations 2014.

The 2012 Regulations apply to meetings and decisions on Executive functions. The 2014 Regulations apply similar (but not identical) rules to meetings and decisions on Non-Executive functions.

Executive decisions

Before 2012, the rules about Executive decisions only applied to officers if they were Key Decisions. Under the 2012 Regulations, however, they apply to all Executive decisions taken by officers, even those which, by definition, are not ‘significant’ in financial or geographical terms.

However, the government soon reflected on the potentially huge administrative burden this would cause and advised (albeit rather unhelpfully) that it is for each council to take a “common sense approach” to what decisions should be recorded and published on the basis of the regulations.

The MHCLG Guidance attempts to differentiate between “Executive decisions” (which must be recorded and published) and “administrative and operational decisions officers take about how they go about their day to day work” (which need not be recorded or published). It also confirms that there is no need to record or publish spending, contracting and purchasing decisions below what they describe vaguely as a “materiality threshold” (a figure to be set by each council’s Chief Finance Officer).

Two things are clear. Decisions under powers delegated by a specific resolution must always be recorded and published. So should decisions under specific delegated powers set out in the Officer Scheme of Delegation in the Constitution. The rest is up to local determination based on “common sense” and the CFO’s judgment.

As soon as reasonably practicable after an officer has made a Key or ‘material’ Executive decision, they must produce a written statement that includes details of:

• the decision
• the date it was made
• the reasons for it
• any alternative options considered and rejected
• any conflicts of interests declared by any executive member consulted by the officer and any dispensations granted in respect of any declared conflict
• any background documents

Non-Executive decisions

The 2014 Regulations require councils to maintain and publish written records of all Non-Executive decisions taken by officers that are:

• Under a specific delegation contained in a council or committee resolution; or
• Under a general delegation (i.e. the Officer Scheme of Delegation) where the effect of the decision:
  • is to grant a permission or licence
  • affects the legal rights of an individual
  • is to award a contract or incur expenditure which ‘materially’ affects the authority's financial position

The related Guidance gives examples of decisions that should be published, including:

• Tree preservation orders
• Building control decisions and notices
• Listed building consents
• Grant or refusal of planning permission, listed building consent or certificate of lawful development
• Hedgerow reinstatement or high hedge appeals
• Development Control Enforcement and Stop Notices
• Environmental health licenses, authorisations, notices and enforcement
• Designation of Asset of Community Value under Community Right to Bid

Decisions that do not need to be published include:

• Routine administrative and organisational decisions
• Decisions on operational matters such as changes to services and charges
• Decisions to give business rates relief to individual traders
• Decisions to review the benefit claims of an individual applicant

This means that if only the rights of an individual or a single business are affected then the decision isn’t covered, but if there is a wider public impact/interest in the action then it is.

Publication

For both Executive and Non-Executive decisions, the record must be made available for inspection at the council offices and published on the council’s website.

In the case of Executive decisions, so must the report considered by the decision-maker, a list of background papers and the background papers themselves.

In the case of Non-Executive decisions, there need not be a report, but any background papers disclosing facts or matters on which the decision was based and which were relied on to a material extent in making the decision, must be made public.

However, in each case the council is not required to disclose to the public any exempt information (under section 100I(1) and Schedule 12A of the Local Government Act 1972).

Decisions should be published as soon as reasonably practicable after the date they were made. Decision records must be kept for inspection for 6 years and background papers (inexplicably) for just 4 years.

It should be noted that is a criminal offence if, without reasonable excuse, a person with custody of a document (which is required by the regulations to be made available to the public) refuses to supply the whole or part of the document, or intentionally obstructs any other person from disclosing such a document. If a person is found guilty of such an offence, they may be fined up to £200. In addition, breach of the rules is likely to amount to maladministration.

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.

This is the latest in a series of articles Geoff has written – previous contributions include:

• Disqualification as an elected member
• Member and officer indemnities
• Complying with the Public Sector Equality Duty
• Members’ interests, bias and pre-determination
• Who runs councils in no overall control?