Individual ward member delegated powers

Many councils already make provision for councillors to be able to deal with issues of local concern directly. Some operate systems of neighbourhood committees, neighbourhood forums or area forums, with the power to spend small amounts of money on ward issues. This has always been discretionary, and it is up to councils to decide whether neighbourhood working is right for their local community.

However, section 236 of the Local Government and Housing Act 2007 gives additional statutory authority to councils to formally delegate powers to individual councillors to carry out any function of the authority. The authority given under s.236 to delegate powers goes beyond the delegation of budgets and allows Ward Members to make potentially significant decisions that would not otherwise be open to them.

Section 100EA of the Local Government Act 1972 and the Exercise of Functions by Local Councillors (Written Records) Regulations 2009 require any decisions made by councillors under these delegated powers to be formally recorded and, within one month of the date on which the decision is made or action taken, to provide the record to the authority.

It is important to note that these powers are separate to existing powers that can be given to individual Cabinet Members to make decisions.

Scope

Although s.236 gives broad powers to delegate “any function” of the authority to an individual member, there are obviously some that will be more appropriate than others. It would not be appropriate to delegate powers to make planning, licensing or social care decisions, for example. But delegated powers could be used to allow councillors to play a more active role in a wide range of policy areas.

Functions that could be delegated include powers to:

1. Supplement local safer neighbourhood teams with additional officers;
2. Effect repairs or improvements to streets – including putting in place road-calming measures;
3. Develop and oversee youth activities and facilities in the ward;
4. Provide grants to local groups to carry out community projects;
5. Target particular local problems that cut across different council departments and/or other partners, e.g. tackling public health problems in a given ward based on demographic information. This could include local action on issues such as childhood obesity and diet.

Executive or Non-Executive?

Different functions need to be delegated in different ways. Non-Executive functions can be delegated directly by full Council. However, Executive functions are delegated directly by the Leader or, if they are already delegated to Cabinet Members, they may be delegated to an individual Ward Member by that Cabinet Member.

The effective use of these powers will require members and officers to think differently about the way in which services are provided. In particular, Ward Members will need to consider:

1. How they can use their local knowledge to support any powers they are given;
2. Whether they need additional support in exercising delegated functions, e.g. legal advice;
3. How they will ensure that decisions they make under delegated powers are evidence-based;
4. How they will be supported if their decisions are challenged, e.g. by judicial review;
5. How they will publicly record the decisions they make under these powers.

Officers will need to:

1. Work closely with Ward Members to develop their skills and expertise;
2. Provide advice to ensure that delegated functions are exercised effectively;
3. Give prompt effect to decisions made under delegated powers;
4. Promptly and accurately record decisions made by a Ward Member.

Practicalities of Delegation

Councils should amend their constitution to provide for the possibility of delegating powers to Ward Members, e.g. by examining the way in which they delegate powers to Cabinet Members, or neighbourhood forums or committees, and see how the powers under s.236 fit into these existing frameworks.

However, requiring a constitutional change every time the council wishes to alter the functions that are delegated to Ward Members would not be appropriate. Councils could therefore:

1. Establish “enabling powers” in their constitution for the use of these delegations, which could remain dormant until members saw a need to activate them;
2. Delegate certain functions to Ward Members across the board, thus enabling the council to plan more strategically for the provision of local budgets, and even to reorganize services to provide an area focus;
3. Use the delegation powers more sparingly, to tackle specific issues in specific wards in response to a particular challenge.

Different approaches will be more, or less, compelling in different authorities depending on existing practice and culture. Councils should, however, develop a clear policy to define when and under what circumstances a function will be delegated.

Care should be taken to mitigate the increased risk of individual councillor decision-making being challenged, whether for bias, corruption, impartiality, irrationality, etc. The possibility that political bias might be alleged in some authorities means that an individual decision on functions to be delegated should not itself be a decision delegated to a Cabinet Member or to Cabinet (particularly if Cabinet is one-party). If a decision is made that functions will be delegated in an ad hoc manner – as described above – steps will need to be taken to ensure that the decision on delegation is not influenced by party political or other irrelevant or unreasonable considerations.

Links with the Councillor Call for Action (CCfA)

Councils should think about the way in which CCfAs (see my previous article) could influence these decisions. Where councils have decided to take advantage of the powers under s.236, they will find that there are some close links with CCfA:

1. Members exercising delegated powers will have more opportunities to resolve issues locally without having recourse to CCfA processes (depending on the issue);
2. CCfAs on particular issues may encourage councils to use s.236 to delegate powers to members to resolve those issues locally – further improving the council’s responsiveness to local issues.

Delegating to Wards

The power in the Act relates to the delegation to individual members, but councils may wish to put steps in place to ensure that delegated powers are used jointly between all members representing a certain ward - particularly in the case of wards where political representation is split between two or more parties.

This may not involve the official delegation of functions to all the ward members as a “group”, but in practice the delegation of functions to councillors in the same ward will mean that those councillors will need to work together to ensure that the decisions that they each make complement each other. Local practice and guidance will need to emphasise this issue – especially in multi-party wards.

Recording Delegated Decisions and Scrutiny

When they are made, delegated Ward Member decisions will need to be recorded and provided to the Council in accordance with s.100EA of the 1972 Act and Regulation 2 of the 2009 Regulations.

Precise arrangements – including timescales for publishing decisions – can be made by individual authorities. However, it may be most effective for councils to record the delegations they make in their official schedule or scheme of delegations to minimise the possibility of decisions being challenged.

The need to record decisions exercised under delegated powers complements the provisions requiring similar records to be kept for Cabinet Member decisions. The requirement in s.100EA ensures that decision-making carried out by Ward Members is open and transparent, and is accompanied by the right, exercisable by scrutiny functions, to hold members to account for decisions they have made by having them attend committee meetings, under s.120 of the Act. This may provide a useful opportunity for local authorities to think about the way that their neighbourhood bodies link up to their scrutiny function.

While councils need to put provisions in place to allow the recording of these decisions, this should not result in increased bureaucracy. Where functions are delegated under s.236, councils should:

1. Provide members with training to allow them to fulfil these roles effectively. Doing so will naturally lessen later administrative requirements;
2. See the requirement to record decisions as an opportunity to highlight good work being carried out by members in local communities, and to share good practice across the region;
3. Present members with checklists or guidance advising of the principles that they should use when exercising their powers, and the people they should consider when doing so;
4. Link s.236 and s.100EA with existing neighbourhood working; for example, suggesting that members make decisions at neighbourhood forums, in public, and that those decisions be recorded in the minutes for those meetings.

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

Geoff’s first article on the role of the backbench councillor can be found here.

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

• What is an Officer?
• Councillors in an increasingly digital age
• Dual-hatted members and local government reorganisation
• 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?
• The role of the backbench councillor