Guidance and application in relation to dispensations for councillors

1. Guide to Dispensations

Councils are responsible for determining requests for a dispensation by members under section 33 of the Localism Act 2011. This enables the council to grant a dispensation to an elected or co-opted member on a matter with which they would otherwise not be permitted to deal, as a result of having a Disclosable Pecuniary Interest.

This guide explains:

• The purpose and effect of dispensations
• The procedure for requesting dispensations
• The criteria applied in determining dispensation requests
• The terms of dispensations

Until a dispensation is granted a member may not participate in the consideration of a matter before the council (or any committee or sub-committee) in which they have a Disclosable Pecuniary Interest.

A member may also have other registrable or non-registrable interests under the Member Code of Conduct and should also use this same procedure to request a dispensation in respect of those interests.

For the avoidance of doubt, members do not have a Disclosable Pecuniary Interest and/or have a general dispensation in respect of any business of the Council relating to:

• Housing, where the member is a tenant of the Council, provided that the business does not relate specifically to the member’s tenancy or lease, or that of a relative, friend or close associate;
• An allowance, payment or indemnity given to members;
• Any ceremonial honour given to members;
• Setting council tax or a precept under the Local Government Finance Act 1992.

2. Purpose and effect of dispensations

In certain circumstances, members may be granted a dispensation that enables them to take part in council business where this would otherwise be prohibited because they have a Disclosable Pecuniary Interest or other interest. Provided members act within the terms of their dispensation there is deemed to be no breach of the Code of Conduct or the law.

Section 31(4) of the Localism Act 2011 states that dispensations may allow the member to remain in the room where the meeting considering the business is being held and:

• Participate in any discussion of the matter at the meeting; and/or
• Participate in any vote taken on the matter at the meeting.

Note: if a member participates in a meeting where they have a Disclosable Pecuniary Interest and they do not have a dispensation, they may be committing a criminal offence under section 34 of the Localism Act 2011. This is punishable by a fine up to level 5 (currently £5,000) and an order disqualifying the person from being a member for up to five years. A prosecution may be brought within 12 months of the prosecuting authorities having the evidence to warrant prosecution, but any prosecution must be brought within 3 years of the commission of the offence and only by or on behalf of the Director of Public Prosecutions.

3. Process for making requests

A member who wishes to apply for a dispensation should submit a request (see suggested form at Appendix 1 below) explaining why it is desirable and appropriate to grant the dispensation.

A request for dispensation must be made on an individual basis.

4. Approval Process

A dispensation may only be granted to a member if:

• Without the dispensation, the number of persons prohibited from participating in any particular business would be so great a proportion of the body transacting the business as to impede the transaction of the business, or
• Without the dispensation, the representation of different political groups on the body transacting any particular business would be so upset as to alter the likely outcome of any vote relating to the business, or
• Without the dispensation, each member of the authority's Executive would be prohibited from participating in any particular business to be transacted by the Executive, or
• Granting the dispensation is in the interests of persons living in the authority's area, or
• It is otherwise appropriate to grant a dispensation.

Depending on the constitutional provisions of each individual authority, the power to grant dispensations may be exercised by the Council or be delegated to a committee or an officer (typically the Monitoring Officer).

Applications dealt with by an officer will normally be determined more quickly. Applications made to the Council or a committee will usually go to the next ordinary meeting or it may be appropriate to arrange a special meeting at the discretion of the Chair. Applications must be received sufficiently far in advance to enable a report to be prepared and the agenda published five clear days before the meeting.

The decision should be formally notified to the member together with reasons at the earliest opportunity.

5. Criteria for determination of requests

In reaching a decision on a request for a dispensation, the following should be considered:

• The nature of the member’s interest;
• The extent to which the request could have been avoided or other arrangements made;
• The need to maintain public confidence in the conduct of the council’s business;
• The extent to which there is some personal benefit and the extent of the public benefit obtained by agreeing to a dispensation;
• The possible outcome of the proposed vote;
• The need for efficient and effective conduct of the council’s business;
• Any other relevant circumstances.

6. Terms of dispensations

Dispensations may be:

• Granted for one meeting or for a period not exceeding 4 years (provided it doesn’t exceed the term of office of the member concerned);
• Subject to specific conditions, e.g. notification of any material change in circumstances arising from the dispensation.

7. Disclosure of decision

Any member who has been granted a dispensation must declare the nature and existence of the dispensation before the commencement of any business to which it relates.

A copy of the dispensation must be kept with the Register of Members’ Interests.

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:

• Member and officer indemnities
• Complying with the Public Sector Equality Duty
• Members’ interests, bias and pre-determination
• Who runs councils in no overall control?
• Recording and publishing officer decisions
• The role of substitutes
• What next for parish councils?
• Dual-hatted members and local government reorganisation 

APPENDIX 1

APPLICATION FOR A DISPENSATION UNDER SECTION 33 OF THE LOCALISM ACT 2011 IN RESPECT OF A DISCLOSABLE PECUNIARY INTEREST

Name of member:

A member who has a Disclosable Pecuniary Interest or other registrable or non-registrable interest in a matter that is under consideration may not participate in the consideration of that matter by the council, a committee or sub-committee or by the Executive or a committee of the Executive unless they have first obtained a dispensation from the Council.

You may apply for a dispensation by completing this form and sending it to [INSERT RELEVANT NAME OR POST TITLE].

1. What is the matter for which dispensation is sought?

Please provide full details including amounts where the matter involves funding or finance.

2. For which type of meeting is dispensation sought?

(Council, Cabinet, Committee or Sub-Committee)

3. What is the nature of the Disclosable Pecuniary Interest or other interest?

Please provide full details.

4. What is the date of the meeting(s) at which this matter is to be considered?

Insert date.

5. For how long is the dispensation needed?

Please note that it cannot be longer than 4 years nor exceed the term of office of the member concerned.

6. Do you benefit personally from the business to which this application relates?

Yes/No. If “yes” the full details must be provided of the nature and extent.

7. How is the business of the council being impeded in the absence of a dispensation?

Insert details.

8. Are there any other factors that might help the council to reach a decision on the application?

Insert details.

9. Are you seeking a dispensation to speak and vote?

Yes/No.

10. Are you seeking a dispensation to speak but not vote?

Yes/No.

Name: ________________________________________

Signed: _______________________________________

Date: _________________________________________