Local Government and Public Involvement in Health Bill

House of Lords

Session 2006 - 07
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Local Government and Public Involvement in Health Bill

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Part 9 — The Commission for Local Administration in England
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175
Annual reports
(1)
Section 23A of the Local Government Act 1974 (c. 7) (annual reports) is
amended as follows.
(2)
In subsection (1), after “functions” insert “(an “annual report”)”.
(3)
In subsection (2)—
5
(a)
for “The report” substitute “The annual report”;
(b)
for “their own report” substitute “their annual report”.
(4)
In subsection (3), for “the report submitted by them under subsection (1)
above” substitute “the annual report”.
(5)
After subsection (3) insert—
10
“(3A)
The Commission must lay a copy of the annual report before
Parliament.”
(6)
Omit subsections (4) and (5) (comments on Commission’s annual report).
176
Power to investigate
Before section 25 of the Local Government Act 1974 insert—
15
“24A
Power to investigate
(1)
Under this Part of this Act, a Local Commissioner may investigate a
matter—
(a)
which relates to action taken by or on behalf of an authority to
which this Part of this Act applies,
20
(b)
which is subject to investigation under this Part of this Act by
virtue of section 26, and
(c)
in relation to which subsection (2), (3) or (5) is satisfied.
(2)
This subsection is satisfied if, in relation to the matter, a complaint
which satisfies sections 26A and 26B has been made to a Local
25
Commissioner.
(3)
This subsection is satisfied if, in relation to the matter—
(a)
a complaint which satisfies sections 26A and 26B has been made
to a member of an authority to which this Part of this Act
applies, and
30
(b)
the complaint has been referred, or is treated as having been
referred, to a Local Commissioner under section 26C.
(4)
Any question whether subsection (2) or (3) is satisfied in relation to a
matter shall be determined by a Local Commissioner.
(5)
This subsection is satisfied if—
35
(a)
the matter has come to the attention of a Local Commissioner,
and
(b)
section 26D applies to the matter.
(6)
In determining whether to initiate, continue or discontinue an
investigation, a Local Commissioner shall, subject to the provisions of
40
this section and sections 26 to 26D, act in accordance with his own
discretion.

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(7)
Without prejudice to the discretion conferred by subsection (6), a Local
Commissioner may in particular decide—
(a)
not to investigate a matter, or
(b)
to discontinue an investigation of a matter,

if he is satisfied with action which the authority concerned have taken
5
or propose to take.”
177
Authorities subject to investigation
(1)
Section 25 of the Local Government Act 1974 (c. 7) (authorities subject to
investigation) is amended as follows.
(2)
In subsection (4), for paragraphs (b) and (c) substitute—
10
“(b)
to a committee or sub-committee of that authority (including a
joint committee or joint sub-committee on which the authority
are represented),

and (for the avoidance of doubt) subsections (4ZA) to (5) apply for the
purposes of this subsection.”
15
(3)
After subsection (4) insert—
“(4ZA)
Any reference to an authority to which this Part of this Act applies also
includes, in the case of a local authority operating executive
arrangements, the executive.”
(4)
In subsection (4A) (Greater London Authority), omit paragraphs (b) and (c).
20
(5)
Omit subsection (4B) (sub-committees of the London Transport Users
Committee).
(6)
In subsection (5)—
(a)
in paragraph (c), after “constituted” insert “by the authority”;
(b)
in paragraph (d), after first “school” insert “maintained by the
25
authority”;
(c)
in paragraph (e), after “constituted” insert “by the authority”.
(7)
After subsection (5) insert—
“(6)
Subsection (7) has effect where an authority to which this Part of this
Act applies exercise a function entirely or partly by means of an
30
arrangement with another person.
(7)
For the purposes of this Part of this Act, action taken by or on behalf of
the other person in carrying out the arrangement shall be treated as
action taken—
(a)
on behalf of the authority, and
35
(b)
in the exercise of the authority’s function.
(8)
Subsection (7) does not have effect where, by virtue of another
enactment, the action would be treated as action taken by the
authority.”
178
Matters subject to investigation
40
(1)
Section 26 of the Local Government Act 1974 (matters subject to investigation)
is amended in accordance with subsections (2) and (3).

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(2)
For subsection (1) substitute—
“(1)
For the purposes of section 24A(1)(b), in relation to an authority to
which this Part of this Act applies, the following matters are subject to
investigation by a Local Commissioner under this Part of this Act—
(a)
alleged or apparent maladministration in connection with the
5
exercise of the authority’s administrative functions;
(b)
an alleged or apparent failure in a service which it was the
authority’s function to provide;
(c)
an alleged or apparent failure to provide such a service.
(1A)
Subsection (1) is subject to the following provisions of this section.”
10
(3)
Omit subsections (2) to (4) (procedure for making complaints).
(4)
In Schedule 5 to that Act (matters not subject to investigation), for paragraph 3
substitute—
“3    (1)
Action taken in matters relating to contractual or other commercial
transactions of any authority to which Part 3 of this Act applies
15
relating to—
(a)
the operation of public passenger transport;
(b)
the carrying on of a dock or harbour undertaking;
(c)
the provision of entertainment;
(d)
the provision and operation of industrial establishments;
20
(e)
the provision and operation of markets.
      (2)
Sub-paragraph (1) does not include transactions for or relating to—
(a)
the acquisition or disposal of land;
(b)
the acquisition or disposal of moorings which are not
moorings provided in connection with a dock or harbour
25
undertaking.
      (3)
Sub-paragraph (1)(a) does not include action taken by or on behalf of
the London Transport Users Committee in operating a procedure for
examining complaints or reviewing decisions.
      (4)
Sub-paragraph (1)(e) does not include transactions relating to—
30
(a)
the grant, renewal or revocation of a licence to occupy a pitch
or stall in a fair or market, or
(b)
the attachment of any condition to such a licence.”
179
Complaints and matters coming to Commissioners’ attention
(1)
After section 26 of the Local Government Act 1974 (c. 7) insert—
35
“26A
Who can complain
(1)
Under this Part of this Act, a complaint about a matter may only be
made—
(a)
by a member of the public who claims to have sustained
injustice in consequence of the matter,
40
(b)
by a person authorised in writing by such a member of the
public to act on his behalf, or
(c)
in accordance with subsection (2).

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(2)
Where a member of the public by whom a complaint about a matter
might have been made under this Part of this Act has died or is
otherwise unable to authorise a person to act on his behalf, the
complaint may be made—
(a)
by his personal representative (if any), or
5
(b)
by a person who appears to a Local Commissioner to be suitable
to represent him.
26B
Procedure for making complaints
(1)
Subject to subsection (3), a complaint about a matter under this Part of
this Act must be made—
10
(a)
in writing, and
(b)
before the end of the permitted period.
(2)
In subsection (1)(b), “the permitted period” means the period of 12
months beginning with—
(a)
the day on which the person affected first had notice of the
15
matter, or
(b)
if the person affected has died without having notice of the
matter—
(i)
the day on which the personal representatives of the
person affected first had notice of the matter, or
20
(ii)
if earlier, the day on which the complainant first had
notice of the matter.
(3)
A Local Commissioner may disapply either or both of the requirements
in subsection (1)(a) and (b) in relation to a particular complaint.
26C
Referral of complaints by authorities
25
(1)
This section applies where a complaint about a matter is made to a
member of an authority to which this Part of this Act applies.
(2)
If the complainant consents, the complaint may be referred to a Local
Commissioner by—
(a)
the member of the authority to whom the complaint was made,
30
(b)
any other member of that authority, or
(c)
a member of any other authority to which this Part of this Act
applies which is alleged in the complaint to have taken or
authorised the action complained of.
(3)
Subject to subsection (4), a referral under this section must be made in
35
writing.
(4)
A Local Commissioner may disapply the requirement in subsection (3)
in relation to a particular referral.
(5)
If a Local Commissioner is satisfied that the complainant asked a
member of an authority mentioned in subsection (2) to refer the
40
complaint to a Local Commissioner, he may treat the complaint as if it
had been referred to him under this section.
(6)
In this section, references to a member of an authority include—
(a)
in relation to a National Park authority, a member of any of the
councils by whom a local authority member of the authority is
45
appointed;

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(b)
in relation to a joint board, a member of any of the constituent
authorities of the joint board;
(c)
in relation to a joint authority established by Part 4 of the Local
Government Act 1985, a member of a constituent council of that
authority.
5
26D
Matters coming to attention of Local Commissioner
(1)
This section applies to a matter which has come to the attention of a
Local Commissioner if—
(a)
the matter came to his attention during the course of an
investigation under this Part of this Act,
10
(b)
(subject to subsection (3)) the matter came to his attention—
(i)
before the person affected or his personal
representatives had notice of the matter, or
(ii)
in any other case, before the end of the permitted period,
and
15
(c)
it appears to the Local Commissioner that a member of the
public has, or may have, suffered injustice in consequence of the
matter.
(2)
In subsection (1)(b)(ii), “the permitted period” means the period of 12
months beginning with—
20
(a)
the day on which the person affected first had notice of the
matter, or
(b)
if the person affected has died without having notice of the
matter, the day on which the personal representatives of the
person affected first had notice of the matter.
25
(3)
A Local Commissioner may disapply the requirement in subsection
(1)(b) in relation to a particular matter.”
(2)
In section 27 of that Act (provisions relating to complaints)—
(a)
for the title substitute “Members of the public”;
(b)
in subsection (1), for the words before paragraph (a) substitute “In this
30
Part of this Act, “member of the public” means an individual or a body
of persons, whether incorporated or not, other than—”;
(c)
omit subsection (2).
180
Reports and statements of reasons
(1)
Section 30 of the Local Government Act 1974 (c. 7) (reports on investigations)
35
is amended as follows.
(2)
For subsection (1) substitute—
“(1)
If a Local Commissioner completes an investigation of a matter, he shall
prepare a report of the results of the investigation and send a copy to
each of the persons concerned (subject to subsection (1B)).
40
(1A)
A Local Commissioner may include in a report on a matter under
subsection (1) any recommendations that he could include in a further
report on the matter by virtue of section 31(2A) to (2BA).
(1B)
If, after the investigation of a matter is completed, the Local
Commissioner decides—
45

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Part 9 — The Commission for Local Administration in England
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(a)
that he is satisfied with action which the authority concerned
have taken or propose to take, and
(b)
that it is not appropriate to prepare and send a copy of a report
under subsection (1),

he may instead prepare a statement of his reasons for the decision and
5
send a copy to each of the persons concerned.
(1C)
If a Local Commissioner decides—
(a)
not to investigate a matter, or
(b)
to discontinue an investigation of a matter,

he shall prepare a statement of his reasons for the decision and send a
10
copy to each of the persons concerned.
(1D)
For the purposes of subsections (1) to (1C), the persons concerned are—
(a)
the complainant (if any),
(b)
any person who referred the matter under section 26C(2),
(c)
the authority concerned, and
15
(d)
any other authority or person who is alleged in the complaint,
or who otherwise appears to the Local Commissioner, to have
taken or authorised the action which is or would be the subject
of the investigation.”
(3)
In subsection (2), for “the complaint” substitute “a complaint about the matter”.
20
(4)
In subsection (2AA)(a), for “the duty imposed by subsection (1)(c) above”
substitute “the duty to send a report or statement to the Authority under
subsection (1), (1B) or (1C)”.
(5)
Before subsection (3) insert—
“(2B)
Subsections (3) to (8) apply in the case of a report under subsection (1).”
25
(6)
In subsection (3), for “the interests of the complainant and of persons other
than the complainant” substitute “the interests of the complainant (if any) and
of other persons”.
(7)
In subsection (7), for “the interests of the complainant and of persons other
than the complainant” substitute “the interests of the complainant (if any) and
30
of other persons”.
181
Power of Commissioners to make recommendations etc
(1)
Section 31 of the Local Government Act 1974 (c. 7) (further provisions about
reports on investigations) is amended as follows.
(2)
For subsection (1) substitute—
35
“(1)
This section applies where a Local Commissioner reports that there has
been—
(a)
maladministration in connection with the exercise of the
authority’s administrative functions,
(b)
a failure in a service which it was the function of an authority to
40
provide, or
(c)
a failure to provide such a service.”

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(3)
For subsection (2B) substitute—
“(2B)
Where the report relates to maladministration, those recommendations
are recommendations with respect to action which, in the Local
Commissioner’s opinion, the authority concerned should take—
(a)
to remedy any injustice sustained by the person affected in
5
consequence of the maladministration, and
(b)
to prevent injustice being caused in the future in consequence of
similar maladministration in connection with the exercise of the
authority’s administrative functions.
(2BA)
Where the report relates to a failure in, or to provide, a service which it
10
was the function of the authority to provide, those recommendations
are recommendations with respect to action which, in the Local
Commissioner’s opinion, the authority concerned should take—
(a)
to remedy any injustice sustained by the person affected in
consequence of the failure, and
15
(b)
to prevent injustice being caused in the future in consequence of
a similar failure in, or to provide, a service which it is the
function of the authority to provide.”
(4)
In subsection (3)(b), for “maladministration” substitute “the maladministration
or failure”.
20
182
Publication of reports etc by Commissioners
After section 31A of the Local Government Act 1974 (c. 7) insert—
“31B
Publication of reports etc by Commissioners
(1)
A Local Commissioner may—
(a)
publish all or part of a report or statement under section 30,
25
(b)
publish all or part of a report under section 31,
(c)
arrange for further publication of all or part of a statement
published under section 31(2D) or (2G), or
(d)
publish a summary of a matter which is the subject of a report
or statement under section 30 or 31,
30

if, after taking into account the public interest as well as the interests of
the complainant (if any) and of other persons, he considers it
appropriate to do so.
(2)
A Local Commissioner may—
(a)
supply a copy of all or part of a report, statement or summary
35
mentioned in subsection (1) to any person who requests it, and
(b)
charge a reasonable fee for doing so.
(3)
Subsection (3) of section 30 applies to—
(a)
any part of a statement under section 30, and
(b)
any part of a summary of a matter,
40

that is published, or a copy of which is supplied, under this section as
it applies to a report prepared under section 30.”
183
Making complaints etc electronically
(1)
In section 32 of the Local Government Act 1974 (law of defamation and