Head of Legal Services authorised spending limit

Simon Barton made this Freedom of Information request to Broxtowe Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was successful.

Sue Rodden
Head of Administrative Services
Broxtowe Borough Council

Dear Sue,

On the 12th July 2011 at 13.17 pm Mr Simon Smith, Head of Legal Services for Broxtowe Borough Council, wrote the following sentence in an email to Bartons plc of Chilwell:

"I have no control over Broxtowe Borough Council's accounts save having authority to authorize expenditure up to a certain amount."

His email happened to be copied in by him to you, as Head of Administrative Services, to Mrs Ruth Hyde, your Chief Executive, to Mr Paul Adcock, Head of Finance Services and Mr Mathew Kirk, Broxtowe's Estate Manager.

Under the Freedom of Information Act please supply information to me sufficient to

1. direct me to documents showing from where this claimed 'authority to authorize expenditure' of the Head of Legal Services is derived, and

2. inform me what the 'certain amount' is a today's date (24.1.12), and was at 31.3.11 and at 16.1.2012.

3. confirm to me the financial limit the Head of Legal Service is and was authorised to spend under delegated authority at the same three dates (31.3.11, 16.1.22 and 24.1.12)

I accept the third question may be another way of asking the previous two, but I think it prudent to ask, just to be sure.

I look forward to hearing from you at an early opportunity,

Yours faithfully,

Simon Barton

Broxtowe Borough Council

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Broxtowe Borough Council

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foi, Broxtowe Borough Council

Dear Simon

Thank you for your request. You will receive a reply as soon as
possible and in any event by 21 February 2012 at the latest. Please
contact me if I can be of any help in the meantime.

Regards

Sue
______________________________________

Sue Rodden
Head of Administrative Services

Broxtowe Borough Council
Council Offices
Foster Avenue
Beeston
Nottingham
NG9 1AB

Tel: 0115 9173295
Fax: 0115 9173131
www.broxtowe.gov.uk

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Dear Sue,

Thanks for your prompt acknowledgement,

Yours,

Simon

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

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You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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foi, Broxtowe Borough Council

Dear Simon

Further to your request, I can now provide the following information:

In response to q1, the following extract from the Council's Standing Orders sets out provisions regarding expenditure. Clauses 44(2), 44(3) and 45(1) appear to be the most relevant to your enquiry.

44. Budgetary Control

(1) It shall be the duty of the Cabinet to monitor and regulate the Council's financial performance during the currency of each estimate period.
(2) No expenditure shall be incurred, or a reduction of income authorised, unless it is covered by the annual estimates approved by the Council, or by a supplementary estimate approved by the Cabinet.
(3) Amounts provided under the several main heads of the annual estimates shall not be diverted to other purposes without the approval of the Cabinet except that in the case of (i) individual capital amounts not exceeding £10,000 and (ii) individual revenue amounts not exceeding £5,000, the Chief Executive or the appropriate Chief Officer, after consultation with the Deputy Chief Executive, may approve such diversions subject to any restrictions as specified in Financial Regulations.
(4) All proposals to vary the annual estimates approved by the Council by either:-
(a) exceeding any individual amount in the estimates;
(b) varying the purpose for which any sum was included;
(c) incurring expenditure not provided for in the estimates;
(d) reducing income provided for in the estimates; shall be referred by the Chief Executive or chief officer concerned to the Deputy Chief Executive before consideration by the Cabinet.
(5) The Deputy Chief Executive shall submit to the Cabinet as and when requested a statement summarising;
(a) the supplementary estimates before the Cabinet for consideration;
(b) the aggregate amount of supplementary estimates previously approved by the Council or the Cabinet in respect of the current financial year.

45. Authorisation and Limitation of Expenditure

(1) Chief officers may incur expenditure on revenue and capital account up to the amounts included in the approved estimates, except in the case of items marked with an asterisk, which require prior approval of the Cabinet.
(2) The Cabinet, when considering whether to incur expenditure on projects which are asterisked, shall consider a joint report from the Chief Executive or chief officer concerned and the Deputy Chief Executive, which shall include:-
(a) a detailed description of the project;
(b) the estimated initial or capital cost involved and the proposed method of financing the project;
(c) the estimated subsequent annual revenue expenditure and income resulting from the project, both for the year under consideration and in a full year; this will include details of staffing requirements, running and upkeep expenses and loan charges;
(d) the estimated savings, if any, resulting from the execution of the project.
(3) Where the Cabinet decides to proceed with the project, and the revenue effects and the capital costs are both within the budgetary estimates approved by the Council, the Cabinet or chief officer may proceed without further reference.
Where, however, the revenue effects and/or capital costs are in excess of the approved estimates, the Cabinet will consider the revised financial ceilings and the method of financing before approval is given for the seeking of tenders or placing of orders.

In response to q. 2 and 3, the "certain amount" referred to is the approved budget. For the whole of 2011/12 the budget on counsel's fees within the legal services section has been £18,000 and this has remained unchanged throughout the year.

I hope that this answers your enquiry. However, please contact me if I can be of any further help.

Regards

Sue

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Dear Sue,

Thank you for providing the information in response to my request.

As you are no doubt aware, I am trying to establish beyond doubt that expenditure that your authority has incurred, and would have in certain circumstances also have potentially incurred, was authorised entirely in line with the manner that has been delegated by Council to the officer concerned.

I do therefore have to seek further clarification on a number of points in respect of Legal Expenses authorised and budgeted for by Broxtowe Borough Council in order to satisfy my FOI enquiry:

1. Classification of Expenditure

Please confirm under which heading, based on the CIPFA Standing Accounting Classification, Legal Expenses would fall in the preparation of a Revenue Budget.

2. Budgetary Control

2.1 I note from Council’s Standing Orders (44.1) that:

“It shall be the duty of the Cabinet to monitor and regulate the Council's financial performance during the currency of each estimate period.”

Please confirm the length of the ‘each estimate period’ referred to.

2.2 I note from Council’s Standing Order (44.2) that:

“No expenditure shall be incurred, or a reduction of income authorised, unless it is covered by the annual estimates approved by the Council, or by a supplementary estimate approved by the Cabinet.”

Please confirm the annual estimates approved by the Council in respect of total Legal Expenses for the financial years 2010/2011 and 2011/2012, and

Please confirm any supplementary estimates approved by the Cabinet in respect of total Legal Expenses for the financial years 2010/2011 and 2011/2012

3. Authorisation and Limit of Expenditure

I note from Council’s Standing Order (45.1) that:

“Chief officers may incur expenditure on revenue and capital account up to the amounts included in the approved estimates, except in the case of items marked with an asterisk, which require prior approval of the Cabinet.”

Please confirm that Legal Expenses do not fall into the category of ‘items marked with an asterisk’.

4. General

I note from your response that:

“In response to q. 2 and 3, the "certain amount" referred to is the approved budget. For the whole of 2011/12 the budget on counsel's fees within the legal services section has been £18,000 and this has remained unchanged throughout the year.”

When defending a legal challenge it is usual business practice to provide for both costs incurred in defence of the matter, and possible costs should the defence be lost and costs awarded against the defending party.

Please confirm:

• that I have understood correctly that in 2011/12 counsel's fees of £18,000 were budgeted for in the legal services section
• that the £18,000 budget was entirely to defend a Judicial Review, and if not, please inform me how did this figure break down
• the provision in the accounts made over and above the ‘counsel’s fees’ limit of £18,000 should the defence be lost and costs awarded against the defending party

Kind Regards,

Simon

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

Visit our Website www.broxtowe.gov.uk to make payments, download forms and to find information about all our services.

You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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foi, Broxtowe Borough Council

Dear Simon

Thank you for your message. I will reply to you as soon as I can.

Regards

Sue

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Dear Sue,

Thanks.

Hopefully all the information is still to hand for you?

Many thanks again,

Simon

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

Visit our Website www.broxtowe.gov.uk to make payments, download forms and to find information about all our services.

You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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foi, Broxtowe Borough Council

Dear Simon

Further to your message below, I hope the following helps:

1. Legal expenses is a support service and the costs are fully recharged to various other service headings across the Council. As such it does not appear as a separate line on government returns or within the published accounts.
2.1 The estimate period referred to is one financial year
2.2 The original estimate for legal expenses in respect of 2010/11 was £358,600 but this was subsequently revised to £317,800 when the revised estimates were approved. The original estimate in 2011/12 was £345,050 and figures in the process of being approved show a revised estimate of £350,900. No supplementary revenue estimates were approved in either year in respect of the legal expenses budget.
3. Legal expenses is not covered by an asterisk - this usually relates to certain capital schemes
4. The budget for counsel's fees is to cover a wide range of activities where it may be necessary to engage with external experts including advice on constitutional matters, planning, health and safety and representations in court where necessary. The £18,000 budget is not in respect of any one specific judicial review and no breakdown is available - it is purely a best estimate based upon typical spend levels in other years. It is not the Council's normal practice to make provision for costs awarded against the Council and this would generally be dealt with in retrospect should such an occurrence take place where the costs awarded cannot be contained within the overall budget. However a supplementary revenue estimate of up to £10,000 was approved in 2011/12 in respect of a court case specifically relating to a strategic planning site and the core strategy. This budget was included within the heading for planning policy matters. In addition, each year the Council maintains a contingency budget which it uses to meet unforeseen expenditure as and when it arises. At present the amount remaining in this contingency budget is £43,900. Sums are only allocated from contingency with the approval of cabinet.

Regards

Sue

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Dear Sue,

Thank you for your recent email.
I believe it is common ground that Broxtowe Borough Council’s Head of Legal Services made a decision under delegated authority to defend a Judicial Review of a planning decision of the Council.
In relation to this, correspondence between ourselves under the Freedom of Information Act appears to suggest that the Head of Legal Services also authorised spending during the current financial year of £12,500, on Counsel Fees in relation to the defence of this Judicial Review.
My email to you through the Whatdotheyknow.com website of the 24.1.12 requested that you ‘supply information to me sufficient to ........direct me to documents where this claimed ‘authority to authorise expenditure of the Head of Legal services is derived’
You have been kind enough to supply plenty of information that shows what should and should not happen. Quoting this in full, rather than risking any misinterpretation,
44. Budgetary Control

(1) It shall be the duty of the Cabinet to monitor and regulate the Council's financial performance during the currency of each estimate period.
(2) No expenditure shall be incurred, or a reduction of income authorised, unless it is covered by the annual estimates approved by the Council, or by a supplementary estimate approved by the Cabinet.
(3) Amounts provided under the several main heads of the annual estimates shall not be diverted to other purposes without the approval of the Cabinet except that in the case of (i) individual capital amounts not exceeding £10,000 and (ii) individual revenue amounts not exceeding £5,000, the Chief Executive or the appropriate Chief Officer, after consultation with the Deputy Chief Executive, may approve such diversions subject to any restrictions as specified in Financial Regulations.
(4) All proposals to vary the annual estimates approved by the Council by either:-
(a) exceeding any individual amount in the estimates;
(b) varying the purpose for which any sum was included;
(c) incurring expenditure not provided for in the estimates;
(d) reducing income provided for in the estimates; shall be referred by the Chief Executive or chief officer concerned to the Deputy Chief Executive before consideration by the Cabinet.
(5) The Deputy Chief Executive shall submit to the Cabinet as and when requested a statement summarising;
(a) the supplementary estimates before the Cabinet for consideration;
(b) the aggregate amount of supplementary estimates previously approved by the Council or the Cabinet in respect of the current financial year.

45. Authorisation and Limitation of Expenditure

(1) Chief officers may incur expenditure on revenue and capital account up to the amounts included in the approved estimates, except in the case of items marked with an asterisk, which require prior approval of the Cabinet.
(2) The Cabinet, when considering whether to incur expenditure on projects which are asterisked, shall consider a joint report from the Chief Executive or chief officer concerned and the Deputy Chief Executive, which shall include:-
(a) a detailed description of the project;
(b) the estimated initial or capital cost involved and the proposed method of financing the project;
(c) the estimated subsequent annual revenue expenditure and income resulting from the project, both for the year under consideration and in a full year; this will include details of staffing requirements, running and upkeep expenses and loan charges;
(d) the estimated savings, if any, resulting from the execution of the project.
(3) Where the Cabinet decides to proceed with the project, and the revenue effects and the capital costs are both within the budgetary estimates approved by the Council, the Cabinet or chief officer may proceed without further reference.
Where, however, the revenue effects and/or capital costs are in excess of the approved estimates, the Cabinet will consider the revised financial ceilings and the method of financing before approval is given for the seeking of tenders or placing of orders.
Information and Clarification requested
In order to complete this Freedom of Information Act request, please provide documentary evidence sufficient to demonstrate
• That sufficient potential expenditure on Counsel fees in relation to the Foundry Close Judicial Review (now believed to amount to £12500 in 2011/2012 financial year) was anticipated by the relevant select committee and provided for in the 2011/2012 budget of the relevant service. (It is our understanding that this would be Finance – Legal Services, so please confirm this is correct)
• that such sufficient potential expenditure was approved by Council, and.
• from which service budget the expenditure was subsequently authorised
• That the potential expenditure on claimant’s fees (in the circumstances that the claimant had been successful) in relation to the Foundry Close Judicial Review was anticipated by the relevant select committee and provided for in the 2011/2012 budget of the relevant service.
• That a mechanism exists to draw to the attention of Council the potential for such costs, and, in the case of the Foundry Close Judicial Review, that this potential cost was drawn to the attention of Council.
And, lest there be remaining confusion, please confirm
• The expenditure on Counsel fees for all services that Broxtowe Borough Council have authorised in the 2011/2012 accounting period in relation to any matter, for example, the topic of supported housing and Nottinghamshire County Council, ‘strategic’ land at Toton, sound LDF, constitutional matters, planning, and health & safety, Please itemise them under the headings under which they have been incurred.

I look forward to hearing from you by 21st February 2012.

With thanks.

Simon

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

Visit our Website www.broxtowe.gov.uk to make payments, download forms and to find information about all our services.

You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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foi, Broxtowe Borough Council

Dear Simon
Thank you for your message. I will reply to you as soon as I can.
Regards
Sue

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foi, Broxtowe Borough Council

Dear Simon

In addition to the detailed information which you have already received from the Council as to its powers of expenditure, the only information I can usefully add that would not prove repetitious of replies to your earlier connected enquiries is as follows:
(i) At the time of the Foundry Close judicial review hearing, £12,875 remained available from within the Legal Services budget for counsel's fees. No separate budget authorisation was obtained in respect of costs associated with this judicial review and it has not been separately drawn to the attention of cabinet although several leading members were of course aware that it was taking place.
(ii) To date this year the Council has incurred expenditure on counsel's fees totalling £15,375 split between Legal Services (£12,625) and planning policy advice (£2,750).

Regards

Sue

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Dear Sue,

Dear Sue,
Thank you for your reply to my today to my Freedom of Information Act request.
Your three replies so far have narrowed down considerably what is claimed to have been the sequence of events that provided the funding for the defence of the Foundry Close Judicial Review.
I do not wish to appear repetitious, but have no alternative but to refer you back to the specific documentary evidence requested, under the Freedom of Information Act, in the six bullet points at the end of my response to you of the 14th of February.
I have annotated in capitals where requested information has not been provided, or otherwise, where I believe you have given answers to me
• That sufficient potential expenditure on Counsel fees in relation to the Foundry Close Judicial Review (now believed to amount to £12500 in 2011/2012 financial year) was anticipated by the relevant select committee and provided for in the 2011/2012 budget of the relevant service DOCUMENTARY EVIDENCE, PLEASE (It is our understanding that this would be Finance – Legal Services, so please confirm this is correct...... I BELIEVE YOU CONFIRM IN YOUR LETTER OF 21 FEBRUARY IT IS FINANCE – LEGAL SERVICES
• that such sufficient potential expenditure was approved by Council, DOCUMENTARY EVIDENCE, PLEASE and
• from which service budget the expenditure was subsequently authorised IT APPEARS TO ME YOU CONFIRM IN YOUR LETTER OF 21 FEBRUARY THAT THE SERVICE BUDGET WAS LEGAL SERVICES
• That the potential expenditure on claimant’s fees (in the circumstances that the claimant had been successful) in relation to the Foundry Close Judicial Review was anticipated by the relevant select committee and provided for in the 2011/2012 budget of the relevant service I INTERPRET YOUR REPLY TO MEAN THAT NOT ALL CABINET MEMBERS WERE AWARE THE JUDICIAL REVIEW WAS TAKING PLACE; AND NEITHER THE MERITS NOR RISKS OF DEFENDING THE ACTION HAD BEEN SEPARATELY DRAWN TO CABINET’S OR FOR THAT MATTER COUNCIL’S ATTENTION BY OFFICERS. IS THAT CORRECT?
• That a mechanism exists to draw to the attention of Council the potential for such costs, and, in the case of the Foundry Close Judicial Review, that this potential cost was drawn to the
attention of Council THE QUESTION OF WHETHER THERE IS A MECHANISM DOES NOT APPEAR TO HAVE BEEN ANSWERED, ALTHOUGH YOU APPEAR TO CONFIRM THAT ANY MECHANISM THAT MIGHT EXIST WAS NOT APPLIED.

And, lest there be remaining confusion, please confirm
• The expenditure on Counsel fees for all services that Broxtowe Borough Council have authorised in the 2011/2012 accounting period in relation to any matter, for example, the topic of supported housing and Nottinghamshire County Council, ‘strategic’ land at Toton, sound LDF, constitutional matters, planning, and health & safety, Please itemise them under the headings under which they
have been incurred. I BELIEVE YOU HAVE ANSWERED THIS QUESTION IN FULL ALTHOUGH I WOULD ASK YOU TO DOUBLE CHECK FOR ME THAT THIS INFORMATION PROVIDED IN YOUR ANSWER IS ENTIRELY CORRECT?
I look forward to receiving the documentary evidence to complete this Freedom of Information Act request by the end of the day.
Many thanks,

Simon

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

Visit our Website www.broxtowe.gov.uk to make payments, download forms and to find information about all our services.

You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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foi, Broxtowe Borough Council

1 Attachment

Dear Simon

Further to your message below, please see the enclosed document prepared by the Deputy Chief Executive. I believe that this, together with my earlier responses, has answered comprehensively all your enquiries into this matter which is taking up a considerable amount of officer time. Therefore, if you require any additional information it may be more productive for you to meet with the Deputy Chief Executive so that the Council can be clear what it is exactly that you are trying to ascertain.

If you would like to discuss this further with Mr Staley, please contact Lesley Shelton on 0115 9173234 to arrange a convenient time and date.

Regards

Sue

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Dear Sue,

Thank you for your and Mr Staley's response which take us further forward.

In my opinion for this request to be satisfied I now simply require to see the relevant page of the budget book you refer to. I think a meeting with Mr Staley would also be a good idea and this I will arrange through Leslie Shelton as you suggest, hopefully therefore giving us the opportunity of killing two birds with one stone.

With that in mind, it is my intention as a courtesy to try to close this matter as a Freedom of Information request by updating its status to 'complete' if I can this evening, hopefully preventing it moving to 'overdue'.

In conclusion, I assure you it is not my intention to use officer time in any way unnecessarily, and I, for one, certainly have other things than this that I would prefer to be occupying my time. All of us though have to accept that we are paid to do this as part of our jobs.

I would hope you understand that over the last few years it is no secret that on more than one occasion I have been completely justified in questioning and successfully challenging the accuracy of information used by or provided to me by your council.

As such there should be no surprise that now I have no choice but to remain vigilant.

With genuine thanks for you patience and assistance,

Yours sincerely,

Simon Barton

Broxtowe Borough Council

Thank you for contacting Broxtowe Borough Council. This is an automated reply to let you know that your email has been received. If any action is necessary it will be passed to the relevant officer who will respond to you directly.

Visit our Website www.broxtowe.gov.uk to make payments, download forms and to find information about all our services.

You can telephone us on 0115 9177777. Our switchboard is open for calls Monday to Thursday from 8.30am to 5.00pm and 8.30am till 4.30 on Fridays. The main Council Offices are also open for visitors between these times.

You can write to us at - Broxtowe Borough Council, Council Offices, Foster Avenue, Beeston, Nottingham, NG9 1AB.

Broxtowe Borough Council

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