72. Letter to the Commissioner from
the Director of Strategic Projects, Department of Resources, 25
March 2010
Thank you for your letter of 15 March to [the Director
of Operations]. I am replying on behalf of the Department of Resources.
I deal first with the use of Ms Kirkbride's additional
home by her brother. The Department was not aware that Mr Kirkbride
stayed at the constituency home. In the Green Books which were
in force from 2005 to 2009, Members were "strongly
advised" against subletting or renting
out any part of a property on which ACA was claimed (this rule
applied also to paying guests). If they did so, they were required
to notify the Department, who would reduce their claims by the
amount of their rental income. They were not permitted to claim
for the mortgage costs of any part of the property occupied by
a lodger or paying guest unless this was offset against their
claim. However, where no rent was paid, there was no rule which
governed who might or might not live in, or stay at, a home on
which ACA was claimed.
At the time, the Department would not therefore have
been concerned if someone other than the Member used an ACA-funded
property for occasional stays. If the Department had become aware
of a more regular arrangement, it might have sought more information
from the Member. But it would have been unlikely to have been
concerned if the person staying in the property from time to time
was not paying rent but was providing a function that enabled
the Member to carry out his or her duties more effectively.
From the precedents of recent cases considered by
the Committee on Standards and Privileges, it is clear that the
test which should be applied to cases when another person occupies
a second home is whether the expenditure for which claims are
made is wholly and exclusively incurred in connection with the
Member's parliamentary duties. Where another person's living costs
are subsidised by ACA/PAAE payments made to a Member, or that
person receives a benefit, it is also clear that this is outside
the rules. In the case considered in the Committee's Eighth Report
of the current Session, the Committee concluded that, even though
it was the Member who had received a personal benefit (in this
case, emotional support) from a family member staying in their
second home, the Member should nevertheless repay a proportion
of the amounts she had received (although in this case, the family
member's use of the second home was "substantial,
regular and sustained").[204]
There seem to me to be special elements in the current
case. First, Mr Kirkbride's living costs do not seem to me to
have been reduced to any substantial degree by his occupation
of Ms Kirkbride's second home. He tells you that his lifestyle
was peripatetic, but that he was part-owner of another property
which he regarded as his main home. Of course, there will have
been some savings to him at the margin because of the utilities
and so on that he used at Ms Kirkbride's property, and it would
be possible to argue that she should have abated her claims in
respect of the times he was present. But if one pursued this argument
to its logical conclusion, every Member ought to have abated his
or her ACA/PAAE claims for every guest who stayed at his or her
second home—or indeed for every visitor. I would therefore
view the element of Ms Kirkbride's claims which met the costs
of accommodating Mr Kirkbride as being only at the margin claims
in respect of his living costs.
It is also clear that it was Ms Kirkbride who received
the benefit from Mr Kirkbride's presence in her second home, and
that this was a benefit which enabled her to discharge her parliamentary
role: his presence enabled her to perform her constituency duties.
Mr Kirkbride thus performed a service rather than obtaining a
benefit. That he stayed overnight was directly related to the
service he performed. I would be surprised if other Members have
not regularly asked babysitters to stay overnight in their second
homes or have had nannies who have done so. Others may have employed
residential staff such as housekeepers. Mr Kirkbride's kinship
with Ms Kirkbride can be disregarded for these purposes, except
that it meant that the consideration which Mr Kirkbride received
for his services was not a material one and, as both she and he
have said, there would have been no perceived need for any formal
record of the arrangements they came to as brother and sister.
I should add that the complainant is correct in asserting
that the provision of childcare is not claimable against parliamentary
allowances. However, it is relevant to mention in this context
that the recent Speaker's Conference on Representation has concluded
that more needs to be done to attract parents with young children
to the House. In particular, the Conference concluded that "Decisions
on childcare are a matter of personal choice and for many MPs
their arrangements will be essential to their ability to carry
out their parliamentary duties. Parents will choose to have their
children looked after in their homes (in the constituency and/or
in London) by other family members, by nannies or registered childminders,
or in a nursery or crèche. All of these choices are equally
valid and should be equally respected by the parliamentary authorities."
(para 271)[205]
Mr Kirkbride also stayed occasionally at Ms Kirkbride's
additional home in order to help her with her parliamentary ICT
needs. There is perhaps one difference between these stays and
the stays for childcare purposes: in the case of childcare, overnight
stays were intrinsic to the help offered, whereas overnight stays
in order to help with constituency ICT were incidental. However,
if Mr Kirkbride had charged his sister for his ICT services (no
such charges were made), he could have claimed for accommodation
as part of those charges and Ms Kirkbride could have claimed these
charges against her IEP. In that sense, providing overnight accommodation
could be regarded as having saved public funds.
You also ask about the claims Ms Kirkbride made in
respect of her extended mortgage. An additional loan of £50,000
was taken out in May 2008 to cover improvements to Ms Kirkbride's
additional home. This was reflected in increased claims for mortgage
interest from June 2008. The 2006 version of the Green Book states
that "re-mortgaging
is permissible if moving to different accommodation or if repairing
or improving your existing ACA home. Members should consult the
DFA before making any major commitments" (para
3.73).
There would have been no reason not to permit claims
in respect of an extended mortgage to allow for extra accommodation
for the needs of a Member's dependent child. There is no correspondence
from the Department to Ms Kirkbride to confirm the arrangement,
although she refers to the advice given to her in her letter to
the Department of 16th June 2008, which we have on file. It appears
likely that the agreement was made orally, and the absence of
any comment on Ms Kirkbride's letter implies that the Department
agreed with her.
You will be aware that Sir Thomas Legg regarded the
additional mortgage as conflicted because the payments "were
used to provide accommodation for a non-dependent family member".
However, Sir Paul Kennedy regarded claims in respect of the extension
of the mortgage to be permissible because it was an extension
to permit an improvement to the property which was allowed under
the rules, and because it was not relevant that the carer for
whom the extra room was provided would normally be the brother
of Ms Kirkbride.[206]
You may also want to know that there have been no
claims made in respect of the property from any allowance other
than ACA/PAAE. Furthermore, no claims were made for services provided
by Mr Kirkbride, either in respect of childminding or (as I mention
above) for ICT support. Some ICT equipment, software and peripherals
were bought by Mr Kirkbride and delivered to him at Ms Kirkbride's
second home. Ms Kirkbride subsequently claimed back the relevant
costs from her IEP. This took place sporadically between 2004/2005
and 2008/2009.
We have no details on file of any discussions which
the Department had with Ms Kirkbride, or someone on her behalf,
about her childcare arrangements or plans for extending her constituency
property.
A summary detailing Ms Kirkbride's ACA/PAAE claims
from 2004/5 to 2008/9 is attached.[207]
Please let me know if I can help further.
25 March 2010
204 Committee on Standards and Privileges, Eighth Report
of Session 2009-10, HC 353, para 9 Back
205
Speaker's Conference on Parliamentary Representation, Final Report
of Session 2009-10, HC 239-I, para 271. Ms Kirkbride was a member
of this Conference. Back
206
WE 61, WE 62 Back
207
Not included in the written evidence. A summary is at WE 73. Back
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