Birmingham monitoring officer says it is "extraordinarily difficult to define council statutory functions"

Birmingham City Council's monitoring officer has said the local authority is collating an "evolving list" of statutory functions as it grapples to pin down what is and is not essential spend following the issuance of its section 114 notice.

Janie Berry, who is also the local authority's City Solicitor, said that it is "extraordinarily difficult to define council statutory functions" given the breadth of legislation at play.

She added that since the council issued its section 114 notice last week (5 September), she has been fielding a large number of questions from council officers about what can be considered essential spend, with one officer asking if sending a letter could be considered essential.

The council must stop all non-essential spending after having issued a section 114 notice last week in the face of an in-year financial gap of £87m and outstanding equal pay claim settlements worth up to £760m.

Her comments came during a Finance and Resources Overview and Scrutiny Committee meeting held on Thursday (7 September) after the committee's chair, Cllr Jack Deakin, asked her for a list of statutory functions.

Berry said there are "common known" statutory functions, such as food safety, child protection, and adult social care. "However to get you a definitive list is extraordinarily difficult," she stated.

"Legislation is very widespread across local authority functions, and there used to be - about twenty years ago - a list of statutory functions. It had over a thousand statutory functions on there," she noted.

"But since then, legislation has changed, and it is very difficult across any local authority to obtain a list of the precise statutory functions.

"There's also a lot of localism attached to that as well. So, statutory is now interpreted by councils in terms of what is a priority for councils to deliver as well. "

She later added: "Even just to go through all the legislation that we're involved in would take quite a significant time."

Cllr Deakin went on to ask: "Surely we have to have some form of interpretation for statutory if we are making decisions based on adhering to statutory functions?"

In response, Berry said: "We are working off a number of issues. Predominantly, it is information that is coming out of the respective directorates that both [the council's s151 officer] and I are looking at, so it is in terms of the directorate's priorities of what they deemed is a function that is a priority for them to deliver."

Berry continued: "The statutory functions as well, which I've already mentioned – for example, food safety, health and safety, some elements around adult social care that we're looking at as well, but we are definitely looking at the definitions and the parameters coming out of the directorates.

"They will then go through a significant amount of rigour from the legal department and from finance as well so that we […] develop a much more comprehensive guidance for our directorates and again with members.

"So it will be an evolving list, but we are putting a lot of challenge from a legal perspective back to the directorates as well," she noted.

She added that "not everything can be a priority".

"[The directorates] have to do a risk analysis on the work that either comes to legal or the spend that they want [the s151 officer] to consider and so we are evaluating that almost on a daily, if not twice daily, basis.

She added that she is "coming under a lot of communication" from officers across the council about what is statutory.

She said she had been asked that morning whether posting a letter was statutory.

"Yes, if it's linked with a legal function, absolutely you'd need to post the letter because that is statutory service," she said.

She added: "We're challenging back and trying to understand why you're doing this. Why is this a priority for you, and is this genuine essential spend?"

Adam Carey