S114 update: Appointment of Commissioners

Amardeep Gill and Imelda Kavanagh continue their examination of the consequences of a council issuing a s114 notice by considering what the role of appointed commissioners could be should this form of intervention be decided upon.

To read their previous article on the consequences of issuing a s114 notice, please click here. 

Section 114 notice update: appointment of commissioners

With an increasing number of councils considering issuing s114 notices, it is likely the government will start to make more use of its power to intervene on how services are run by councils, with the appointment of commissioners becoming a common place feature of the government's intervention.

As recently seen, as part of the government's intervention following Birmingham City Council's (BCC) issue of a s114 notice, commissioners have been appointed to BCC, but what role can commissioners be expected to play in a council's response to the issuing of a s114 notice?

When are commissioners appointed?

The Local Government Act 1999 gives the Secretary of State for the Department of Levelling Up, Housing and Communities the power to send in commissioners to review and manage all or some council functions where evidence has emerged that a council is falling short of its best value duties, this includes any indication that a council is unable to deliver a balanced budget, and in particular following the issue of a s114 notice by a council.

The role of commissioners

Councils can experience different levels of government intervention and different commissioners can be appointed to support improvements or temporarily run the services of different council departments.

Commissioners are usually former council chiefs with lengthy experience in local government, but their role varies and will depend on the specific difficulties being faced by the council in question. The authority of appointed commissioners can be specific to a particular function or wide ranging, as seen in the case of BCC, and can include a number of functions such as strategic decision making, financial management, appointment and dismissal of statutory officers, performance management of senior officers, and all functions associated with a council's operating model.

Commissioners will often oversee the implementation of improvement plans and amended budgets, with councils being accountable to the commissioners on their delivery. Commissioners will provide advice and challenge to the council across its operations and will have powers to make decisions directly should they deem that necessary.

The role of councils following the appointment of commissioners

Commissioners are allowed such assistance, information and access to amenities, services and any administrative support, that is reasonably required to carry out their functions and responsibilities.

Commissioners and council politicians can work collaboratively together and this will likely be the case where both are aligned on the steps required to achieve a shared objective of expediting a council's return to compliance with its best value duties. That is not to say that the road back to compliance will run smoothly in every case, and the intervention of commissioners and the increased level of scrutiny this brings, will not always be well received.

Commissioners do have statutory enforcement powers and executive decision-making powers, and past cases have shown that such powers have been exercised where needed. Equally, past cases can also demonstrate that the appointment of commissioners helps to expedite a council's recovery following the issue of a s114 notice.

Summary

Whether or not the appointment of commissioners is well received by a council, it is seen by the government as a necessary and expedient step to return a council to a sustainable organisation delivering best value for residents.

The role and level of authority exercised by commissioners will vary and will be unique to the difficulties being faced by a council. In order to benefit most from the commissioners' role, all parties must be aligned on the steps required to achieve their common goals, and to ultimately ensure the delivery of the most essential services to residents.

Amardeep Gill is a Partner and Imelda Kavanagh is a Professional Support Lawyer at Trowers & Hamlins.