16. Extract from ACA Repayment Appeals
by Sir Paul Kennedy, January 2010: Rt Hon Andrew Mackay
[187]
The ACA Review points out that you are married to
another MP, Julie Kirkbride. You designated your London flat as
your second home. She nominated it as her main home, and the constituency
home, which you also shared, as her second home. For you it was
designated as your main home. That enabled you, as a married couple,
to claim the expenses relating to both properties against ACA,
and you did so. Your claims being at or close to the full annual
allowance. The Review describes this "a financial benefit
for the couple which appears unintended under the Green Book rules,
and as such contrary to the principles governing it".
It is said that had you made different designations each of you
might have reasonably claimed up to 2/3 of the full allowance
on a shared second home. The Review has therefore concluded that
each of you was overpaid by 1/3 of the maximum ACA for each year
of the review period, a total of £29,243.
The Review also states that you were paid £9,950
for cleaning over the 4 years April 2004 to April 2008, thus exceeding
the maximum of £2,000 per annum set by the Review by a total
of £1,950.
You are therefore recommended to repay a total of
£31,193.
In your Grounds of Appeal to me you emphasise the
position of the Fees Office as a source of advice, especially
where circumstances are unusual. It has, and throughout the relevant
period has always had, authority to interpret and enforce the
rules. Thus far I agree with you, but the conclusions which you
seek to draw seem to me to be, in certain respects, mistaken.
I accept that Members were and are entitled to rely on advice
given by the Fees Office and its officials, but only if they have
no reason to believe that it is wrong. If they do rely on such
advice in good faith they cannot be said to have acted improperly
even if, in the end, the advice tendered turns out to be mistaken.
But all of this has nothing to do with the law of agency, or Estoppel.
We are concerned here with admissible claims against public funds,
and, as the Speaker wrote in his introduction to the Green Book
(April 2005 edition), "Members
themselves are responsible for ensuring that their use of allowances
is above reproach". You say that
the way in which you and your wife designated your homes was in
accordance with advice given by the Fees Office. If so it seems
to me that the advice was plainly mistaken, and indeed that you
should have recognised it to be mistaken.
As I have said in my letter to your wife, the fundamental
reason why the arrangements which you made cannot be regarded
as acceptable is that they lost sight of the purpose of ACA, which
was to assist Members to fund the cost of accommodation when they
needed a second home in order to fulfil their duties. It was never
intended to relieve them of the costs of their main home, and
you operated it in such a way as to achieve that result.
I agree that the basis of the overall approach adopted
by the Review to calculate what you and your wife might reasonably
have claimed on a shared second home is difficult to discern,
but if anything it seems to me to be generous, and you do not
contend otherwise. I therefore find no special reasons in your
individual case showing that it would not be fair and equitable
to require repayment of £29,243.
I turn to the costs of cleaning. I agree that the
limit of £2,000 per annum was not in place when the costs
were incurred, and that is unfortunate. But I am sure that you
would agree that anyone considering what sum it would be reasonable
to ask the public to pay towards the cost of cleaning a second
home would have to draw a line somewhere. The Review has drawn
it at £2,000 per annum for all Members. My Terms of Reference
(a copy of which I enclose)[188]
only permit me to intervene if I can find special reasons in your
individual case showing that it would not be fair and equitable
to require repayment either at all, or at the level recommended.
I can find no such reasons.
I would therefore dismiss both parts of your appeal.
187 Published as Appendix 2 to the First Report of
the Members Estimate Committee, Session 2009-10 (HC 348)
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188
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