The Charity Commission has issued its first ever Official Warning to a local authority over failing properly to manage its charities.  Calderdale Metropolitan Borough Council is one of over 1200 councils across England and Wales that are trustees of charities and has failed to file annual returns and accounts for 13 charities, which have been overdue for several years.  The Official Warning states that this, and the council’s failure to comply with an action plan the Commission issued to it in 2023, amounts to misconduct and/or mismanagement in the administration of the charities.  The Commission has stated that the council also needs to: implement processes to ensure all 13 charities are compliant with their accounting responsibilities going forward; provide up to date contact details for all charities; locate and identify all 13 charities on a local register containing details about the charities and their assets; hold regular trustee meetings, ensuring all councillors are aware of their duties and responsibilities, treating all charities as separate entities; and review financial controls of all charities, taking steps to record and implement processes as well as provide evidence of this action to the Commission.

OFSTED Guidance details the new Complaints Process . The Process applies to Inspections and Regulatory Activity carried out across all education and care providers after 4 April 2024. The changes allow a provider to seek a Review of their Inspection. This may include both the conduct of Inspectors and the judgment reached. This may be done when they receive their draft Inspection Report.

If the provider remains dissatisfied with OFSTED’s Response to their formal Complaint they will be able to escalate it to the CENTRE FOR EFFECTIVE DISPUTE RESOLUTION.

Article 6 of the GDPR states that processing of data shall be lawful ONLY IF AND TO THE EXTENT that  at least one of 6 situations applies. These include when processing is NECESSARY for the performance of a task carried out in the PUBLIC INTEREST or in the exercise of official authority vested in the controller. In Case C-252/21, the META case, the CJEU Grand Chamber says at paras 108-112 inclusive that this means that the legitimate data protection issues pursued must not be reasonably capable of being achieved just as effectively by other means less restrictive of the rights and freedom of data subjects. A balance then requires to be struck. Particular attention must be paid when the data subject is a child.

In R (PIFFS ELM LTD) v COMMISSIONER FOR LOCAL ADMINISTRATION IN ENGLAND (2023) EWCA Civ 486 the Court of Appeal rules that the Local Government Ombudsman has no jurisdiction to withdraw a final report and reopen a completed investigation. Moreover, a Court of law should decide purely legal questions.

In R ( Milburn ) v Local Government and Social Care Ombudsman ( 2023 ) EWCA Civ 207 parts of a Complaint to the Ombudsman were excluded, pursuant to Section 26 of the Local Government Act 1974, because the Complainant had made, and/or could have made an Appeal to the First Tier Tribunal (Special Educational Needs and Disability ).

In SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –

1. “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
2. The exemption is “ prejudice based “ : para 190;
3. The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
4. The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
5. The harm must relate to the interests protected by the exemption : ibid;
6. It is a qualified exemption : para 191;
7. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
8. Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;

There is a public interest in preventing prejudice to commercial interests : para 314.

In PIFFS ELM LTD v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND (2022) EWHC 1547 (Admin) the Court holds that the Local Government and Social Care Ombudsman (the LGO) has an implied power, under Section 30 in Part 3 of the Local Government Act 1974 (LGA 1974) to withdraw a Final Report, in order to conduct further investigation, under Sections 24A, 26 and 28, and potentially to issue a further Report, with a different outcome.

The statutory provisions confer a very wide discretion on the LGO to decide what complaints he/she should or should not investigate and whether or not to continue or discontinue any such investigation, subject to review by the Court on the usual public law grounds.  Authorities have emphasised the informal nature of the process.

The Courts have noted the utility of the practice of the LGO of inviting comments on their draft Report from the authority and the aggrieved person before the decision is issued. Read more »

In Moss v Kingston RLBC (2021) EWHC 1032 ( Admin ) Thornton J stated that (1) a public’s right to inspect a local authority’s accounts is a long standing right : para 61; (2) the statutory right of inspection does not lie in policies of transparency and openness, but in financial and democratic accountability of public authorities for the use of public money and the conduct of public business : para 62; (3) The main purposes of the rights to inspect, question the auditor and object to the accounts are to enable electors and other persons interested to assist the auditor in his audit, in advance of its completion : para 63; (4) The auditor must satisfy himself that the authority has made proper arrangements for the 3Es, economy, efficiency and effectiveness : para 64; (5) The right of inspection is subject to the gateways that a sufficient interest must be demonstrated and it must be the right time in the audit timetable : para 67; .and (6) The potential exemptions from the right to inspect are limited and do not include the audited body’s time or cost of compliance : paras 69-76 inc.

The Local Audit (England and Wales) (Amendment) (EU Exit) Regulations 2019 will enable EU qualified auditors currently auditing local public bodies to continue to work in the UK, for a transitional period, in the event of a “no deal”. The Regulations are pursuant to powers in Section 8 of the European Union (Withdrawal) Act 2018, and are subject to the negative resolution procedure. There are now 238 Withdrawal Act Statutory Instruments.

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