In partnership with Stephen Sheen, the LexisPSL Local Government team highlights key features of external audit and internal audit in England.
Local authority external audits in England are unique in the way they operate. They are more legalistic than the audits of companies and they extend beyond the focus on the annual accounts that is typical of the private sector audit. The audit approach in Wales and Scotland is similar but the legal framework and detailed arrangements differ.
For the 2015/16 financial year, local government external audit operates fully under the framework of the Local Audit and Accountability Act 2014 (LAAA 2014). The LAAA 2014 provided for the closure of the Audit Commission on 31 March 2015, with its functions transferring to a number of bodies:
- Public Sector Audit Appointments – a limited company owned by the Local Government Association (LGA) and established to manage the audit contracts awarded by the Commission before its closure. These contracts are due to expire after the 2016/17 financial year but may be extended up to 2019/20
- National Audit Office (NAO) – maintaining the Code of Audit Practice and providing guidance to which auditors must have regard
- Cabinet Office – responsibility for the National Fraud Initiative and counter-fraud (working together with CIPFA)
When the existing audit contracts expire, authorities will be able to appoint their own auditors under LAAA 2014. At this point, other bodies will have relevant functions:
- Financial Reporting Council – recognising and supervising recognised supervisory bodies
- recognised supervisory bodies – responsible for registering audit firms and regulating their activity
- appointing persons – appointing auditors for authorities that opt out of the opportunity to appoint their own auditor
This Practice Note does not cover the external audit arrangements in Wales and Scotland which are overseen by the Wales Audit Office and Audit Scotland and the Accounts Commission respectively.
The appointment of external auditors
For the 2016/17 financial year (and probably for 2017/18), external audits will be carried out by firms appointed by the Audit Commission before its closure. For 2018/19, it is anticipated that LAAA 2014, Pt 3 will have full effect, requiring authorities to appoint their own auditors or to opt into arrangements for an appointing person to appoint auditors for them.
Under LAAA 2014, s 7, appointments must be made by December 31 in the preceding financial year for a maximum period of five years. The expectation is that principal authorities will need to make their first appointment by 31 December 2017. In making appointments, authorities will be guided by an auditor panel. The functions of the auditor panel are set out in LAAA 2014, s 10 and the Local Audit (Auditor Panel) Regulations 2014, SI 2014/3224 and include advising the authority on:
- the maintenance of an independent relationship with the local auditor
- the selection and appointment of a local auditor
- any proposal by the authority to enter into a liability limitation agreement
- whether to adopt a policy on the purchasing of non-audit services from the local auditor
The arrangements for establishing an auditor panel and requirements for independence are set out in LAAA 2014, ss 10–12 and Sch 4. LAAA 2014, Sch 4 in particular gives a number of options for a panel:
- a panel appointed by the authority
- a panel appointed by the authority and one or more other authorities
- a committee of the authority
- the auditor panel of another authority
The Schedule to the Local Audit (Appointing Person) Regulations 2015, SI 2015/192 specifies that an authority that has opted in to appointing person arrangements does not require an auditor panel.
Guidance on establishing and operating an auditor panel is available in CIPFA’s Guide to Auditor Panels.
If an authority fails to appoint an auditor, LAAA 2014, s 12 empowers the Secretary of State to direct the authority to appoint a particular auditor or to appoint one on its behalf.
In making an auditor appointment, authorities will follow the procedures set out in LAAA 2014, ss 7 and 8. Most of the terms of an appointment will be specified by the requirements of LAAA 2014 (eg, the duties of auditors, resignation and removal of the auditor). Areas where the authority will have discretion include:
- length of appointment (up to five years before reappointment) (LAAA 2014, s 7(2))
- whether more than one auditor is appointed for different parts of the accounts or for different audit functions LAAA 2014, s 7(6))
Liability limitation agreements can be entered into, but these must be in accordance with Local Audit (Liability Limitation Agreements) Regulations 2014, SI 2014/1628 in relation to duration and amounts.
An auditor must be eligible for appointment under the terms of LAAA 2014, s 18 and Sch 5 which apply a modification of Companies Act requirements. Eligibility will involve registration with a recognised supervisory body.
Conduct of local audit
All local government external auditors have the same duties and responsibilities, as set out in:
- LAAA 2014, Pt 5
- the Code of Audit Practice issued by the National Audit Office
The general duties of auditors are specified in LAAA 2014, s 20(1) requiring them to be satisfied in auditing the accounts that:
- the accounts comply with the requirements of the enactments that apply to them
- proper practices have been observed in the preparation of the statement of accounts, and that the statement presents a true and fair view
- the authority has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources
Per LAAA 2014, s 20(2), auditors mark the completion of an audit by entering on the statement of accounts:
- a certificate that the audit has been completed in accordance with LAAA 2014
- the auditor's opinion on the statement
These duties must be carried out in compliance with the Code of Audit Practice published by the National Audit Office (NAO) (LAAA 2014, s 20(5)) and having regard to guidance issued by the Comptroller and Auditor General (LAAA 2014, s 20(6)).
The Code of Audit Practice is prepared in accordance with LAAA 2014, Sch 6. The Code must be approved by Parliament and has the formal status of secondary legislation. The First Code issued under LAAA 2014 was published in April 2015 and the Comptroller and Auditor General has a duty to use reasonable endeavours to replace it within five years. In the meantime, any alterations must be approved by Parliament.
The Code must embody what the Comptroller and Auditor General considers best professional practice with respect to the standards, procedures and techniques to be adopted by local auditors. This is largely achieved by requiring auditors to comply with the Financial Reporting Council’s International Standards for Auditing (UK and Northern Ireland) and Ethical Standards where relevant.
The 2015 Code contains:
- the principles to be applied when carrying out an audit
- clarification of the respective responsibilities of the authority and the auditor in relation to the statement of accounts
- specification of auditors’ responsibilities in relation to other published information (eg, governance statement)
- terms for the auditors’ work on value for money arrangements
- specifications for reporting the results of the auditor’s work
- terms for the exercise of additional powers and duties
In carrying out their responsibilities, auditors are given extensive rights of access to documents and information under LAAA 2014, s 22. At all reasonable times, auditors have rights of access to every document that relates to the authority or an entity connected with the authority that the auditor thinks is necessary for the purposes of their functions under LAAA 2014. Auditors may also require members and officers of the authority (and elected representatives, appointees and employees of entities within the scope of an authority’s group accounts) to provide such information or explanation as the auditor thinks is necessary for the purposes of LAAA 2014. If the auditor thinks it necessary, the relevant person can be required to meet the auditor to give the information or explanation.
Statements in response to a requirement of the auditor under this LAAA 2014, s 22 may not be used in evidence against that person in criminal proceedings (LAAA 2014, s 22(11)). Persons are not compelled to disclose information in respect of which a claim to legal professional privilege could be maintained in legal proceedings (LAAA 2014, s 22(12)).
LAAA 2014, s 23 proscribes that it is an offence for a person to obstruct the exercise of any power conferred by LAAA 2014, s 22 or to fail to comply with any requirement of a local auditor under the section without reasonable excuse.
LAAA 2014, Sch 11 places confidentiality requirements on auditors in relation to information acquired in the course of their audit. Generally information can only be disclosed with the consent of the authority or the person to whom the information relates.
External auditors have a number of reporting requirements, arising variously from the LAAA 2014, the Code of Audit Practice and International Auditing Standards (UK and Northern Ireland). The requirements are summarised in Chapter 4 of the Code:
Planning the audit
- audit planning report – advising the authority how the auditor intends to carry out their duties in respect of the accounts and of the audited body’s arrangements to secure value for money through the economic, efficient and effective use of its resources
Completion of audit fieldwork
- report to those charged with governance – reporting to those charged with the governance of the authority:
- the results of the audit of the financial statements
- the results of the work in respect of the authority’s arrangements to secure value for money
- the results of any additional work undertaken in accordance with the auditor’s statutory powers and duties.
Conclusion of the audit
- audit report – reporting:
- the results of the auditor’s work on the financial statements, including an opinion as to whether they present a true and fair view
- the results of the auditor’s work on the authority’s value-for-money arrangements, including a conclusion on those arrangements
- reporting by exception on other information published with the statement of accounts
- statement on Whole of Government Accounts consolidation schedules – providing a statement on whether any schedules the authority is required to produce are consistent with the financial statements
- annual audit letter – providing a commentary on the results of the auditor’s work and highlighting any issues that the auditor wishes to draw to the attention of the public
- audit completion certificate – certifying the completion of the audit, with the effect of closing the audit following the discharge of the auditor’s responsibilities
Auditors also have powers under LAAA 2014, s 24 and Sch 7 to issue reports and recommendations in specific circumstances:
- public interest reports—under LAAA 2014, Sch 7, para 1(1) an auditor must consider whether, in the public interest, to make a report on any matter coming to their notice during the audit and relating to the authority or an entity connected with it, so that it can be considered by the authority or brought to the public's attention
- written recommendations—under LAAA 2014, Sch 7, para 2(1) an auditor may make a written recommendation to the authority relating to the authority or an entity connected with it, so that the recommendation can be considered by the authority
In both circumstances, LAAA 2014, Sch 7 sets out processes for the report or recommendations to be considered by the authority, the publicity to be given to the meeting and the arrangements under which it will be held and the publicity to be given for decisions. Authorities must also give publicity to public interest reports by publishing them and circulating them to specified potential interested parties.
Action by the auditor
The LAAA 2014 gives external auditors a number of powers to take action against authorities undertaking illegal expenditure (or proposing to do so) or planning to overspend. These powers have been carried over from previous audit regimes, some dating back many decades.
In the last 20 years the powers to take action have been rationalised, particularly to remove the power of surcharge to recover losses incurred as a result of the wilful misconduct of members or officers. However, the powers that remain in LAAA 2014 are not clearly linked to responsibilities for auditors to carry out procedures that would result in the identification of all reasonable opportunities to take the relevant action. For instance, auditors have no statutory duty to consider the legality of expenditure or an authority’s arrangements for ensuring legality. Instead, their interest will come from the requirement under auditing standards to address the risk that the financial statements might be materially misstated as a result of non-observance of laws or regulations. It is consequently rare for the powers to be applied.
The available powers to act comprise:
- application to the court for declaration that an item of account is illegal (LAAA 2014, s 28)
- issue of an advisory notice (LAAA 2014, s 29 and Sch 8)
- application for judicial review of a decision of the authority, or of a failure to act, which it is reasonable to believe would have an effect on the accounts (LAAA 2014, s 31)
The Code of Audit Practice requires that auditors considering whether to exercise any of these powers and determining the time and resource to be spent on dealing with matters that come to their attention, to take into account:
- the significance of the subject matter
- whether there is wider public interest in the issues raised
- whether the substance of the matter has been considered previously by the body’s auditor
- whether the substance of the matter falls within the scope of work conducted by an inspectorate or other body
- the costs of dealing with the matter, bearing in mind that these are borne by the taxpayer
- in the case of objections, the rights of both those subject to objection and of the objector
Application to the courts
Auditors may take action under LAAA 2014 where they consider an item in the authority’s accounting records or statement of accounts is unlawful. Where the court makes a declaration, it can also order rectification of the accounting records and/or statement of accounts.
Powers that the court had previously under the Audit Commission Act 1998 to order persons found responsible for incurring or authorising unlawful expenditure to repay the sum and for disqualifying members have not been brought into LAAA 2014.
LAAA 2014, ss 28
Under LAAA 2014, s 29 (supported by LAAA 2014, Sch 8), auditors can issue advisory notices where they consider that an authority or an officer of an authority has made, or is about to make, a decision that involves, or would involve, the body incurring expenditure that is unlawful, is about to take or has begun to take a course of action that, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency, or is about to enter an item of account, the entry of which is unlawful.
An advisory notice requires an authority to give the auditor up to 21 days’ notice in writing if it proposes to make or implement the decision, take or continue to take the course of action or enter the item of account cited in the notice. The notice must be accompanied by (or followed within seven days) by the service of a statement of reasons by the auditor.
While an advisory notice has effect, until certain conditions are satisfied it is not lawful for the body concerned or any officer of that body:
- where the notice relates to a decision, to make or implement the decision
- where the notice relates to a course of action, to take or continue to take the course of action
- where the notice relates to an item of account, to enter the item of account
The conditions are that the body has considered, in the light of the advisory notice and the auditor's statement of reasons, the consequences of doing the action specified in the notice, has given the auditor notice of its planned course of action and the notice period in the advisory notice has expired.
Power of auditor to apply for judicial review
Under LAAA 2014, s 31 the auditor may make an application for judicial review with respect to any decision of that body or any failure by it to act that it is reasonable to believe would have an effect on the accounts of that body.
The rights of the public
The Local Audit and Accountability Act 2014 gives members of the public significant rights under audit, in particular to:
- inspect the accounting records and supporting documents of the authority (LAAA 2014, s 26)
- question the auditor about the accounting records (LAAA 2014, s 26(2))
- make an objection to the auditor (LAAA 2014, s 27)
These rights are supported by provisions in the Accounts and Audit Regulations 2015, SI 2015/234.
Under LAAA 2014, s 26 interested persons have a right at each audit of accounts to inspect the accounting records for the financial year to which the audit relates and all books, deeds, contracts, bills, vouchers, receipts and other documents relating to those records. They are permitted to make copies of all or any part of those records or documents. However, this right is subject to two specific constraints:
- a commercial confidentiality protection – information is protected if its disclosure would prejudice commercial confidentiality and there is no overriding public interest in favour of its disclosure (LAAA 2014, s 26(4))
- personal information protection – interested persons are not able to inspect or copy any part of any record or document containing personal information (ie information that identifies a particular individual or enables a particular individual to be identified) (LAAA 2014, s 26(5))
There is also a body of established precedents in this area that might justify an authority limiting access to the accounting records in other ways. For example, questions can be asked about what exactly constitutes an interested party, whether a motive to inspect records might be illegitimate and what range of documents relates to the accounting records.
Public inspection rights are only exercisable during a period specified by the Accounts and Audit Regulations 2015, SI 2015/234. Regulation 14 prescribes that rights are exercisable during a single period of 30 working days, defined by regulation 15 to include at least the first ten working days of July (changing to the first ten working days of June for the 2017/18 financial year). The period for a particular authority is commenced the day after the responsible financial officer publishes the unaudited accounts for the year on its website, together with a declaration that the accounts are unaudited and may eb subject to change and a statement in prescribed form about inspection rights and how they might be exercised.
Questions and objections
During the public inspection period, local electors have rights under LAAA 2014, ss 26 and 27:
- to request an opportunity for the elector (or any representative of theirs) to question the auditor about the accounting records
- to make an objection to the auditor which concerns a matter in respect of which the auditor could make a public interest report, or concerns a matter in respect of which the auditor could apply for a court declaration that an item of account is illegal
LAAA 2014, s 27 requires objections to be made in writing, with further specification in Accounts and Audit Regulations 2015, SI 2015/234, reg 17 that the written notice of objection must contain:
- the facts on which the local government elector relies
- the grounds on which the objection is being made
- so far as is possible, particulars of any item of account which is alleged to be contrary to law and any matter in respect of which it is proposed that the auditor could make a public interest report.
The Code of Audit Practice requires auditors to take into account various matters before deciding to consider an objection – see the 'Action by the Auditor' section above. LAAA 2014, s 27 also permits auditors not to consider an objection where:
- the objection is frivolous or vexatious
- the cost of considering the objection would be disproportionate to the sums to which the objection relates
- the objection repeats an objection already considered
Objections must be made before the close of the public inspection period. If they are made at a later date, they cannot be heard, but the auditor would be bound by the Code of Audit Practice to take information received into account in discharging their audit responsibilities.
Where an objection is made on the basis of an illegal item of account and the elector is aggrieved at a decision by the auditor not to consider the objection or not to apply for a court declaration, LAAA 2015, s 28(3) gives the elector a right to appeal to the court.
External audit fees are paid for by the local authorities. The Audit Commission presently sets fee scales annually following consultation with interested parties. The fee scales are designed to cover the auditor’s costs and those of the Audit Commission. Where unforeseen work is required, eg in respect of matters raised by the public, these costs are also borne by the audited body. It is intended that the LGA will lead interim arrangements for public sector audit after 2015. The LGA will set up a new company to take on responsibility for management of the Audit Commission’s contracts until the legal introduction of local appointment in 2017.
Fraud and corruption
The Audit Commission worked with local government to combat fraud and corruption mainly through the National Fraud Initiative. This involves extensive collection of data from a range of public and private sources. This data is then compared and matched electronically. Any data matches are then subject to further investigation for possible fraud. From the closure of Audit Commission, the Cabinet Office will assume responsibility for the National Fraud Initiative from the Audit Commission. The National Fraud Initiative will become part of the Efficiency and Reform Group—a joint Cabinet Office and Treasury initiative aims to drive savings throughout the civil service.
Grants and returns
External auditors undertake certification work on a range of grants and returns currently on behalf of the Audit Commission. There are thresholds that determine the extent of the audit work required. The Department for Communities and Local Government and HM Treasury are working with grant-paying bodies to develop transitional arrangements to provide assurance for existing schemes when the Commission closes.
Presently the Audit Commission reviews the work of all its audit suppliers on an annual basis and publishes the results in an annual report. The Commission uses the Financial Reporting Council's Audit Quality Review Team to carry out some reviews which contribute to the annual report. It is expected that quality assurance of the work carried out will fall to the LGA, NAO and those local authorities that appoint their own auditors.
The Accounts and Audit Regulations 2015, SI 2015/234 issued in exercise of the powers conferred by LAAA 2014, ss 32, 43(2) and 46 make provisions in relation to internal audit.
Regulation 5(1) requires that authorities must undertake an effective internal audit to evaluate the effectiveness of their risk management, control and governance processes. This audit must take into account public sector internal auditing standards or guidance.
The currently applicable Public Sector Internal Audit Standards (PSIAS) are published by CIPFA, based on the International Professional Practices Framework of the Institute of Internal Auditors. Supplemental guidance is provided in a Local Government Application Note for the United Kingdom Public Sector Internal Audit Standards (£).
Under Accounts and Audit Regulations 2015, SI 2015/234, reg 5(2), officers and members must make available such documents and records and supply such information and explanations as are considered necessary by those conducting an internal audit, provided they are required to do so for the purposes of the audit. 'Documents and records' are specified to include information recorded in an electronic form.
Audit committees are now a common feature of local authority governance arrangements, particularly in directing and reviewing internal audit work, but are not a statutory requirement.