These are frequently asked questions to Rob Hann from colleagues in Local Government via the Sharpe Pritchard ‘Ask-the-Author' facility concerning the subject matter of his books on local authority companies, partnerships, charging and trading.
Q: What impact (if any) does the ultra vires doctrine have for local government following the provision of powers of general competence under section 1 Localism Act 2011?
The provision of the general power of competence has undoubtedly helped local authorities to identify powers and functions to undertake a wider range of activities which hitherto may have been prohibited due to absence of clear enabling powers and/or imprecise language in pre-existing legislation.
However, the ultra vires doctrine itself is by no means a thing of the past as far as local government is concerned. Cases still arise from time-to-time which impact (or potentially impact) on the local government sector. See for example: School Facility Management Ltd & Ors v Governing Body of Christ the King College & Anor  EWHC 1118 (Comm) where Foxton J reviewed the law on ultra vires. My article outlines the key facts in this case here.
Local authorities now have the powers of an individual of full age and capacity - but, the general powers of competence are constrained by restrictions and prohibitions also contained in the 2011 Act, particularly in the context of charging and trading, which significantly impact on flexibility and require certain actions before the powers can be used (e.g., for trading – setting up a company).
Local authorities and those who deal with or advise them must always identify a clear, precise audit trail regarding statutory powers before undertaking activities. Moreover, finding and identifying the powers to do something (i.e., the ‘capacity’ to undertake an activity) only provides a partial solution to problems and difficulties caused by the ultra vires doctrine. Once identified, powers must be used lawfully in accordance with well-established public law principles.
Q: What relevance (if any) does the Local Government (Contracts) Act 1997 have for new major long-term contracts involving local authorities?
The 1997 Act is associated with the facilitation of the Private Finance Initiative (‘PFI’) programme across local government but the 1997 Act does not, in fact, mention the PFI specifically and was always designed to be applied on a much wider basis and to a wider range of transactions than simply those carried out under the PFI. Section 1 states that every statutory provision conferring a function on a local authority confers a power to enter into a contract with another person for the provision or making available of assets or services or both for, or in connection with, the discharge of that function. So, this section is a useful addition to the general powers of competence outlined above.
Certification under the 1997 Act provides confidence to those who deal with local authorities that even if there is a later ultra vires finding by a court, remedies are available in the form of ‘relevant discharge terms’. Certification is applicable at the option of the parties entering into contracts for services for the purposes of discharging any of the functions of a local authority and which last for at least 5 years.
The advantage of following the powers certification process includes the fact that the parties can make some provision for what should happen in the (hopefully) unlikely event that the contract is subsequently held to be ultra vires by a court following a challenge. These provisions are called ‘relevant discharge terms’ and were designed to enable a fairer remedy to be provided for or considered by a court, than what would otherwise be the case if no certification process had been followed (i.e., a void and unenforceable contract ab initio).
Q: Can a local authority have the power to operate with a commercial purpose under the General Power of Competence?
The General Power of Competence enables a local authority to have the “power to do anything that individuals generally do” under s1 of the Localism Act 2011 (“2011 Act”). Where a local authority wishes to operate for a commercial purpose then s4 of same places requirements on local authorities exercising their power under s1 of the 2011 Act. In particular, s4(2) requires a local authority do those things through a company in order to exercise its general power. A company under s4(2) means a company set up under the Companies Act 2006 or a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969. (s4(4)(a) and (b) of the 2011 Act).
Q: We are a local authority wishing to set up a trading company. What considerations should we take into account?
There are many and even though it is comparatively easy to set up a company it is crucial for local authorities to carefully balance and weigh up the advantages and disadvantages of doing so and to develop a business case which clearly identifies reasons for doing so. Local authorities need to be aware of competing interests and potential conflicts of interests that may arise when creating a new trading business. Among other things, important considerations include: (1) taxation and VAT; (2) how a local authority manages the overall structure of subsidiaries which are owned by it; (3) how central support services are delivered and paid for; and (4) any governance and safeguarding procedures which need to be in place in order for the local authority to meet its obligations, whilst the trading company meets its duties under the Companies Act 2006.
Q: Can a local authority use a Limited Liability Partnership as its trading company vehicle?
No. The range of corporate vehicles contained in both the Local Government Act S 95 and the Localism Act 2011 (section 4) do not extend to Limited Liability partnerships (LLPS). However, A Limited Liability Partnership could be an option where a local authority is not primarily acting for a commercial purpose but is pursuing other objectives e.g. economic development or regeneration objectives. If acting for a commercial trading purpose, s4 of the Localism Act 2011 requires a company that has been set up under the Companies Act 2006 or a Bencom (see Q 1 above)..
Q: What are the limitations on utilising the charging power under s93 of the Local Government Act 2003 (“LGA 2003”)?
S93 allows local authorities to recover the cost of providing services that they would not have ordinarily been able to justify or been able to provide. There is a general duty to ensure that the annual income from charges does not exceed the cost of provision of those services in accordance with s93(3) of the LGA 2003.
S93 does not apply where there is a specific charging power for a particular service in another piece of legislation (in accordance with s93(2)(a)) or if there is legislation which expressly excludes a local authority from charging for a service (s93(2)(b)).
Q: Can you tell us whether the best value duty applies generally to a police authority?
Generally: No. Section 1 of the Local Government Act 1999 imposes the Best Value Duty on ‘local authorities’ which includes (though not limited to):
“(a) an English local authority;
(b) a National Park authority;
(c) the Broads Authority; and
(d) the Common Council of the City of London in its capacity as a police authority…”
Previously this list did include police authorities, however that was removed by the Police Reform and Social Responsibility Act 2011 (which also introduced PCCs) and replaced with that specific inclusion of the Common Council of the City of London.
However, whether the best value duty applies to some police authorities might depend on the constitution of the police authority in question. Some police authorities are also fire and rescue authorities. The Best Value Duty is imposed on fire and rescue authorities, though that duty might only relate to its functions as a fire and rescue authority. By way of analogy, the Common Council of the City of London has both a Best Value Duty imposed on it when functioning as a local authority and also when functioning as a police authority.
Q: Can a Public Authority contract out of their Human Rights obligations under the Human Rights Act 1998 by using a private company to provide a service?
Generally, no. As section 6 of the Human Rights Act 1998 (HRA) imposes a duty on all ‘public authorities’ to act compatibly with European Convention on Human Rights.
A ‘public authority’ is defined to include court or tribunal and any person certain of whose functions are ‘functions of a public nature’. ‘Functions of a public nature’ are then defined to include government departments, local government, police etc.; and private companies performing services traditionally provided by a public authority.
This becomes important when you consider that many public bodies increasingly rely on private contractors to fulfil public functions (outsourcing) such as contracting with housing associations to carry out some functions of a social landlord and contracting with private care homes to provide care.
The Courts have held that a private company performs a public function when it is closely associated with the local authority relying on its services. For example, in Poplar Housing v Donoghue, a registered social landlord was a public authority when attempting to terminate a tenancy originally granted by a local authority - the role of the housing company was so closely assimilated to that of Tower Hamlets Council that the housing company was performing a public function.
This may place a may place a positive obligation on a local authority to prevent human rights breaches of, for example, care home residents whose care it has commissioned from the private sector. This can be done by ensuring the relevant private company has a good track record at procurement stage and ensuring ongoing contract management.
Rob Hann is Head of the Local Government team at Sharpe Pritchard. He has over 30 years in local government, having worked for several local authorities and as the ex-head of legal at 4ps/Local Partnerships for many years.
He is also the author/editor of two major guides on Local Authority Charging and Trading (which is available as free download) and Local Authority Companies and Partnerships both of which are now exclusively available through the Sharpe Edge platform in e-format.
This ‘Ask-the-Author’ portal facilitates direct communication with Rob from local authorities, who may wish to explore ideas, questions and issues affecting PFI contracts, local authority income generation initiatives, charging, trading, LA Companies, powers and other projects and programmes that local authorities might be involved with or might be contemplating. Please note, however, that the ‘Ask-the-Author’ facility is not designed to replace or be a substitute for detailed legal advice on specific issues.