Transparency and the Isles of Scilly council.

What is “The Council?” and What is the Local Government Act 1972?

In the United Kingdom Local government is currently regulated by the Act of the British Parliament called The Local Government Act 1972.

The Act can be found here.

http://www.legislation.gov.uk/ukpga/1972/70/contents

The definition of a “Council” under the Act is given in Section 2.

Constitution of principal councils in England.

(1)For every [F1non-metropolitan] county there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by this Act or otherwise.

(2)For every district there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by this Act or otherwise.

[F2(2A)Where a council mentioned in subsection (1) or (2) above are operating executive arrangements which involve a mayor and cabinet executive or a mayor and council manager executive, the council shall consist of an elected mayor, a chairman and councillors.]

[F3(2B)In such a case, a reference in this Act to a member of a council is a reference to—

(a)the elected mayor of the council,

(b)the chairman of the council, or

(c)a councillor of the council.]

(3)Each council mentioned in subsection (1) or (2) above shall be a body corporate by the name “The County Council” or “The District Council”, as the case may be, with the addition of the name of the particular county or district.

The Isles of Scilly Council is mentioned in Section 265

265 Application of Act to Isles of Scilly.

(1)There shall continue to be a council for the Isles of Scilly to be known as the Council of the Isles of Scilly.

(2)The Secretary of State may make an order providing for the constitution of the Council of the Isles of Scilly and otherwise for regulating the application of this Act to the Isles of Scilly and may on the application of the Council make an order providing for the exercise and performance there of any functions which are for the time being conferred or imposed on local authorities.

(3)Any order made under this section may—

(a)apply to the Isles of Scilly any other public general Act relating to local government;

(b)provide for the contribution by the Isles of Scilly to Cornwall County Council in respect of costs incurred by the county council on matters specified in the order as benefiting the Isles of Scilly;

(c)provide for all matters which appear to the Secretary of State necessary or proper for carrying the order into effect.

(4)Any order in force immediately before 1st April 1974 under section 292 of the 1933 Act (application of that Act to the Isles of Scilly) shall have effect as if made under this section and may be varied or revoked accordingly.

What these Sections are basically telling us is that the word “council” means the Elected representatives of the community in which they live and that those representatives gathered together to make decisions (within the boundaries of the Local Government Act 1972 and any other Act of the Parliament which binds them legally)

So basically the councillors are the representatives of the community and must be elected by a proper ballot to become councillors.

The Local Government Act 1972 is the principal Act by which the Council of the Isles of Scilly must act.

When Councillors meet they have to follow and abide by a set of “Standing Orders” which detail the way they act during meetings. The Discharge of their functions is also set out in Part VI of the Local Government Act 1972, specifically in clauses 101 to 109.

Here is the link to the Isles of Scilly web site for their standing orders.

http://committees.scilly.gov.uk/ieListMeetings.aspx?CId=272&Year=0

Under the Local Government Act 1972 you will see that the “Council” consists of a Chair, a vice chair and members. You will also see the Act allows them to employ staff. (Section 112).

As we read through the Act further you will see that from time to time the “Council” may need to delegate it’s authority to an Officer. That is also covered in Part VA, (Section 100 and it’s parts)

Access to Meetings and Documents of Certain Authorities, Committees and Sub-Committees.

Specifically Section 100G

[F1100G Principal councils to publish additional information.

(1)A principal council shall maintain a register stating—

(a)the name and address of every member of the council for the time being [F2together with, in the case of a councillor,] the ward or division which he represents; and

(b)the name and address of every member of each committee or sub-committee of the council for the time being.

(2)A principal council shall maintain a list—

(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and

(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;

but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.

(3)There shall be kept at the offices of every principal council a written summary of the rights—

(a)to attend meetings of a principal council and of committees and sub-committees of a principal council, and

(b)to inspect and copy documents and to be furnished with documents,

which are for the time being conferred by this Part, Part XI below and such other enactments as the Secretary of State by order specifies.

(4)The register maintained under subsection (1) above, the list maintained under subsection (2) above and the summary kept under subsection (3) above shall be open to inspection by the public at the offices of the council.]

I have searched diligently in the Isles of Scilly Council website and cannot find any information under Part (2) above. Viz

(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and

(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;

but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.

This is an important point because the Council officer who claimed that the closure of Park House was a decision of them as an Officer of the council and not as Member’s decision.

Having ascertained to the best of my knowledge that this Officer wasn’t delegated the Authority by Council, (by a properly constituted meeting of the council and with a Motion put and approved by members according to the Local Government Act 1972 and the Council’s own standing orders) the next Question is…. Did they (The Officer) have the Authority to close down Park House having been conferred that authority under any other Act of the Parliament of the United Kingdom?

The Act of Parliament which covers Park house is the Health And Social care Act 2008 (as amended).

Under this act the Minister for health has been given the Power to make regulations.
The latest Set of Regulations are the:-

The Health and Social Care Act 2008 (Regulated Activities)
Regulations 2014.
Linked here.

http://www.legislation.gov.uk/ukdsi/2014/9780111117613/contents

Interpretation
2.—(1) In these Regulations—

(Meaning of Terms under the regulations. (with PDF page numbers)).

“nominated individual” must be construed in accordance with regulation 6(2); (Page 4/32)

“registered manager” means, in respect of a regulated activity, a person registered with the
Commission(b) under Chapter 2 of Part 1 of the Act as a manager in respect of that activity; (Page 5/32)

“registered person” means, in respect of a regulated activity, a person who is the service
provider or registered manager in respect of that activity; (Page 5/32)

Nominated individual under Section 6(2). (Page 8/32)
Requirement where the service provider is a body other than a partnership
6.—(1) This regulation applies where the service provider is a body other than a partnership.
(2) The body must give notice to the Commission of the name, address and position in the body
of an individual (in these Regulations referred to as “the nominated individual”) who is—
(a) employed as a director, manager or secretary of the body, and
(b) responsible for supervising the management of the carrying on of the regulated activity by
the body.
(3) The registered person must take all reasonable steps to ensure that the nominated
individual—
(a) is of good character,
(b) has the necessary qualifications, skills and experience to properly supervise the
management of the carrying on of the regulated activity,
(c) is able by reason of their health, after reasonable adjustments are made, of properly doing
so, and
(d) is able to supply to the registered person, or arrange for the availability of, the
information specified in Schedule 3.

To explain what this means.
1. This refers to the council of the Isles of Scilly. They are the Service Provider. They are not a partnership. They have to nominate a “nominated Individual” The person appointing the “nominated individual” this is the “registered person”
2. The Service provider (registered person) is responsible for 3 (a),(b),(c),(d).
SCHEDULE 3 Regulations 4 to 7 and 19(3)
Information Required in Respect of Persons Employed or Appointed for
the Purposes of a Regulated Activity
1. Proof of identity including a recent photograph.
2. Where required for the purposes of an exempted question in accordance with section
113A(2)(b) of the Police Act 1997(a), a copy of a criminal record certificate issued under section
113A of that Act together with, after the appointed day and where applicable, the information
mentioned in section 30A(3) of the Safeguarding Vulnerable Groups Act 2006 (provision of
barring information on request)(b).
3. Where required for the purposes of an exempted question asked for a prescribed purpose
under section 113B(2)(b) of the Police Act 1997, a copy of an enhanced criminal record certificate
issued under section 113B of that Act together with, where applicable, suitability information
relating to children or vulnerable adults.
4. Satisfactory evidence of conduct in previous employment concerned with the provision of
services relating to—
(a) health or social care, or
(b) children or vulnerable adults.
5. Where a person (P) has been previously employed in a position whose duties involved work
with children or vulnerable adults, satisfactory verification, so far as reasonably practicable, of the
reason why P’s employment in that position ended.
6. In so far as it is reasonably practicable to obtain, satisfactory documentary evidence of any
qualification relevant to the duties for which the person is employed or appointed to perform.
7. A full employment history, together with a satisfactory written explanation of any gaps in
employment.
8. Satisfactory information about any physical or mental health conditions which are relevant to
the person’s capability, after reasonable adjustments are made, to properly perform tasks which
are intrinsic to their employment or appointment for the purposes of the regulated activity.
9. For the purposes of this Schedule—
(a) “the appointed day” means the day on which section 30A of the Safeguarding Vulnerable
Groups Act 2006 comes into force;
(b) “satisfactory” means satisfactory in the opinion of the Commission;
(c) “suitability information relating to children or vulnerable adults” means the information
specified in sections 113BA and 113BB respectively of the Police Act 1997

3. General discussion (Explanatory Note.. Not part of the regulations) (31/32) re nominated individuals and registered persons.
In Part 3, regulations 4 to 7, and Schedules 3 and 4, contain requirements in relation to persons
registered in respect of the carrying on or management of a regulated activity (“registered
persons”), and require certain information to be available in relation to those persons. Where a
regulated activity is carried on by a body other than a partnership, that body must nominate an
individual (“the nominated individual”) who must meet certain requirements (regulation 6).
Regulation 7 lays down requirements in relation to registered managers.
Regulation 5 lays down a new fit and proper person requirement that must be met by directors of
an NHS trust, an NHS foundation trust or a Special Health Authority that carries on a regulated
activity. The requirement lays down criteria to be met by such directors, including that they are of
good character and that none of the grounds of unfitness specified in Part 1 of Schedule 4 apply. A person must not perform the relevant role if they fail the fit and proper person requirement. A
health service body that fails to comply with this requirement could have a condition imposed on
its registration with the Care Quality Commission, requiring it to comply with the requirement,
under section 12(5)(b) of the Act.
Regulations 8 to 19 lay down fundamental standards to be met by registered persons. Regulation
20 lays down a further fundamental standard to be met by health service bodies. The fundamental
standards provide that:
(a) care and treatment must be appropriate and reflect service users needs and preferences
(regulation 9);
(b) service users must be treated with dignity and respect (regulation 10);
(c) care and treatment must only be provided with consent (regulation 11)
(d) care and treatment must be provided in a safe way (regulation 12);
(e) service users must be protected from abuse and improper treatment (regulation 13);
(f) service users’ nutritional and hydration needs must be met (regulation 14);
(g) all premises and equipment used must be clean, secure, suitable and used properly
(regulation 15);
(h) complaints must be appropriately investigated and appropriate action taken in response
(regulation 16);
(i) systems and processes must be established to ensure compliance with the fundamental
standards (regulation 17);
(j) sufficient numbers of suitably qualified, competent, skilled and experienced staff must be
deployed (regulation 18);
(k) persons employed must be of good character, have the necessary qualifications, skills and
experience, and be able to perform the work for which they are employed (regulation 19);
(l) health service bodies must be open and transparent with service users about their care and
treatment (regulation 20).

Regulation 8(2) deals with who is responsible for complying with the Regulations in
circumstances where there is more than one registered person in respect of a regulated activity.
Regulation 21 states that, for the purposes of compliance with the Regulations, a registered person
must take account of guidance issued by the Care Quality Commission under section 23 of the Act
and the code of practice issued by the Secretary of State under section 21 of the Act in relation to
the prevention or control of health care associated infections. The guidance issued by the Care
Quality Commission is available from the Care Quality Commission, Citygate, Gallowgate,
Newcastle upon Tyne, NE1 4PA (www.cqc.org.uk). The code of practice issued by the Secretary
of State is available from the Department of Health, Richmond House, 79 Whitehall, London
SW1A 2NS (www.gov.uk/government/organisations/department-of-health).
Regulation 22 creates offences in relation to breaches of requirements in regulation 11, 12, 13(1)
to (4), 14, 16(3), 17(3) or 20(2)(a) and (3) and also includes a due diligence defence relating to any
proceedings for such a breach. Regulation 23 imposes penalties for those who commit such
offences.
Etc Etc.

4. Diagramatic representation of the Delegated Powers of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Diagramatic representation of the Delegated Powers of the Health and Social Care Act 2008

Delegatus non potest delegare which means that the delegate cannot delegate.

Principal Authority Delegated Authority Signed on behalf of Service Responsible for management of
Service Provider Provider. Services provided under Regs.

5. It is clear that the Registered person is acting for the organisation Registered to carry on an residential care facility (The Council of the isles of Scilly). It is also clear that the registered person is responsible for choosing the Nominated individual. The nominated individual has duties set out in the regulations.
6. There is a Legal construct in English Law called Delegatus non potest delegare which means that the delegate cannot delegate.
7. Under the Act and the regulations, these legal instruments delegate the power to set up an aged care facility to the registered person (Acting on behalf of The Council of the Isles of Scilly) and so that registered person cannot delegate their responsibilities to the nominated person. (Who’s duties are set out in detail in the regulations). There is no duty or authority to close the facility, only to keep it open by upholding the regulations.

Conclusion.
The discussion above is what I understand by transparency.
a) Have the “council” fulfilled their legal obligations?
b) Have the “council” members an understanding of their responsibilities under the Various Acts of Parliament which instruct them on their governance?
c) Do elected members have an understanding of the processes required to do their jobs?
d) Do the staff understand their responsibilities under the Local Government Act 1972 and any other Act of the parliament which places legally binding responsibilities on them?
e) Do the Staff at the council have an understanding of Accountancy? In one council meeting I was appalled at the understanding of the basics of accountancy.

The answer to this is that I don’t know and make no comment about any of them, good or bad. All that I am trying to do is point out that there are laws which govern the way that Councils operate. It is my opinion that the council of the Isles of Scilly hasn’t been following those laws. My opinion was formed by a huge amount of reading and discussion with a Solicitor friend of mine who has been practicing the law for 40 years.
I also went through the Council records of meetings of the Subcommittee responsible as well as the Full Council for an 18 months period. I could not find any delegation of power (which I believe to be unlawful anyway) and no Motion or resolution to close down Park House. I wrote a report of this research which is 36 pages long. The report is appended here.

Park house timeline

I apologise to the readers of this document as it is long and a complicated subject. However that alone shows how complex Local government decision making is and how important your vote is as well.

I also apologise for any Bad grammar and spelling. The whole thing has been done in haste because of the impending elections to council.

I think Geoff Jenkins summed it up beautifully.

“We might be from Scilly, but we are not stupid”

 

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One thought on “Transparency and the Isles of Scilly council.

  1. Well done Vin. I don’t understand half of it. I hope you sent a copy to the councillors on Scilly – that is if you could find their email addresses. Your spelling seems to be fine.

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