Local authority posts and functions subject to regulation
This article looks at the roles of local authority senior officers and the factors that local authority employers should take into account when appointing senior officers. It also explores other regulatory requirements specific to recruitment in local authorities.
Head of paid service
Section 4 of the Local Government and Housing Act 1989 requires every relevant authority to designate one of its officers as its head of paid service and to provide that officer with such staff, accommodation and other resources as are, in that officer's opinion, sufficient to allow their duties to be performed. It is the duty of the officer, where it is appropriate to do so, to prepare a report for the authority on their proposals with regard to:
- the manner in which the discharge by the authority of its different functions is coordinated;
- the number and grades of staff required by the authority for the discharge of its functions;
- the organisation of the authority's staff; and
- the appointment and proper management of the authority's staff.
In practice, in the vast majority of cases, this responsibility is assigned to the post of chief executive, for whom a wider model job description is set out in the conditions of service prescribed by the Joint Negotiating Committee for Chief Executives of Local Authorities.
Section 5 of the Local Government and Housing Act 1989 requires every relevant authority to designate one of its officers as monitoring officer to undertake certain prescribed functions as set out in that section, including reporting any proposals, decisions or omissions by the authority or its executive that contravene an enactment or a Code of Practice made under an enactment. The person appointed as monitoring officer may not also be the "section 151 officer".
Section 151 of the Local Government Act 1972 requires every local authority to make arrangements for the proper administration of its financial affairs and to ensure that one of its officers has responsibility for the administration of those affairs. Under s.114 of the Local Government Finance Act 1988 that officer has a duty to report decisions or proposed decisions about incurring expenditure that may be unlawful. Section 6 of the Local Government and Housing Act 1989 prescribes a number of professional qualifications (including membership of the Chartered Institute of Public Finance and Accountancy), one of which the officer must hold. The section 151 officer is generally the chief financial officer.
The Chartered Institute of Public Finance and Accountancy has published a Statement on the role of the chief financial officer in local government, which sets out how the requirements of s.151 should be fulfilled by chief financial officers and the organisational arrangements needed to support them.
Under sch.2 to the Localism Act 2011, every local authority (other than Districts within a County Council and Town and Parish Councils) is required to designate one of its officers as a scrutiny officer to support the work of the authority's overview and scrutiny committee(s). Authorities cannot designate as scrutiny officer:
- the head of the authority's paid service;
- the authority's monitoring officer; or
- the authority's chief finance officer.
Appointment of senior officers
The Local Authorities (Standing Orders) (England) Regulations 2001 (SI 2001/3384) provide that the council must approve the appointment of the head of paid service before an offer of appointment is made.
The following procedure applies in respect of appointments to posts of head of paid service (to which the provisions above also apply), statutory and non-statutory chief officers and deputy chief officers (within the meaning of s.2 of the Local Government and Housing Act 1989) and assistants for political groups (within the meaning of s.9 of the Local Government and Housing Act 1989).
If a committee comprising elected members is making an appointment, there must be at least one member of the executive on the committee, and members of the executive must have the opportunity to raise objections to a proposed appointment.
In such cases, the appointer (ie the person or body "discharging the function of" appointment) must notify the proper officer (ie the person appointed to perform this function in accordance with s.270(3) of the Local Government Act 1972, which in most authorities will be the monitoring officer) of the person whom it is proposed to appoint and any other particulars relevant to the appointment. The proper officer must then:
- inform all members of the executive of the proposals; and
- notify them of the period in which the elected mayor (in a mayor and cabinet executive) or the leader (in a leader and cabinet executive) may advise the proper officer of any objection on the part of the executive to the proposed appointment.
The offer of appointment can be made only if:
- the mayor or leader has informed the proper officer that neither they nor the members of the executive have any objection to the offer of appointment; or
- there has been an objection from the mayor or leader or a member of the executive, but the appointer is satisfied that the objection is not material or is not well founded.
These provisions relate to local authorities operating with a mayor and cabinet executive or a leader and cabinet executive. They do not apply in the case of authorities operating with a mayor and council manager, or under alternative arrangements as set out in part II of the Local Government Act 2000.
Involvement of councillors in appointment decisions
The Local Authorities (Standing Orders) (England) Regulations 2001 (SI 2001/3384) regulate the involvement of councillors in decisions relating to the appointment of staff. The Regulations apply only to England.
Councillors are not permitted to be involved in the appointment of staff below deputy chief officer (apart from political assistants or mayors' assistants). Their involvement in the recruitment of staff at deputy chief officer level or above is not obligatory. However, where councillors are involved in the appointment of chief officers and deputy chief officers at least one member of the executive must be a member of the relevant committee or sub-committee.
Appointments to posts advertised externally
The Local Authorities (Standing Orders) Regulations 1993 (SI 1993/202) regulate the appointment of the head of paid service, chief officers (statutory and non-statutory), political assistants and mayors' assistants where a post is to be advertised externally. The Regulations require that the authority draw up a statement specifying the duties of the post and a person specification. This should be sent to any person on request. The authority must also advertise the post in such a way that it is brought to the attention of people qualified to apply for it. If no qualified candidates apply, the post must be re-advertised in the same way. The Regulations require the authority either to interview all applicants or to create a shortlist and interview the shortlisted applicants.
The authority can delegate any of the above processes, including the actual appointment, to a committee or sub-committee. A chief officer may also be delegated to draw up the job description and person specification and to advertise and interview for the post, but they cannot make an appointment.
Non-statutory chief officers, political assistants and mayors' assistants can be excluded from these provisions by the authority's standing orders.
Assistants for political groups
Under s.9 of the Local Government and Housing Act 1989 a local authority may appoint up to three assistants for political groups, subject to stringent conditions and safeguards.
The appointment of each assistant is the responsibility of the political group that the post is to represent. Although the post of assistant for a political group is "politically restricted", the selectors can take account during the selection process of a candidate's political activities. The criteria laid down for the posts are that:
- only one post can be appointed to a political group;
- the three largest groups in each authority qualify for a post (if membership of the group consists of at least 10% of the membership of the authority);
- the terms and conditions must not be less favourable than those of other political assistants in the authority;
- the contract of employment must terminate at or before the annual council meeting following the first elections after the person was appointed (or the first annual council meeting after the person has been in the post for three years if the council is elected by thirds);
- the local authority cannot delegate any functions to an assistant, and no other authority officer can be required to work under the direction of an assistant (other than in respect of secretarial or clerical services).
In addition, the remuneration of the assistants must not exceed a figure specified from time to time in regulations. With effect from 4 July 2006, the Local Government (Assistants for Political Groups) (Remuneration) (England) Order 2006 (SI 2006/1509) raised the assistants' salary limit to £34,986, then the equivalent to spinal column point 44 on the National Agreement on Pay and Conditions of Service pay spine. The Local Government and Public Involvement in Health Act 2007 makes provision for the Secretary of State to specify the maximum pay of political assistants by reference to a point on a relevant pay scale rather than by specifying an amount. This provision is effective from 31 January 2008. Welsh ministers may make such an order in relation to Wales and have determined that it should be spinal column point 49.
The authority should also mention in the job pack the effect of holding a politically restricted post.
Special provisions in relation to mayors' assistants are set out in the Local Authorities (Elected Mayor and Mayor's Assistant) (England) Regulations 2002 (SI 2002/975). These Regulations provide that:
- an elected mayor may appoint one person to provide assistance to them;
- a mayor's assistant will be an employee of the authority;
- the position of mayor's assistant will be regarded as a politically restricted post for the purposes of part I of the Local Government and Housing Act 1989;
- a mayor's assistant cannot supervise other staff except insofar as they are provided with secretarial or clerical services;
- the authority, executive and committees of the authority cannot delegate their functions to a mayor's assistant;
- a mayor's assistant shall be employed on such terms and conditions (including remuneration) as the elected mayor sees fit within the financial resources of the authority.
The Regulations also specify that appointment of the mayor's assistant should not last beyond:
- the term of office for which the elected mayor was elected; or
- if the elected mayor ceases to be mayor before the end of the term of office for which they were elected, the date on which they cease to hold office.
It is important that the assistant is clear about what will bring the contract to an end and this should be expressly stated in the contract/written statement of terms and conditions of employment.
The authority should also mention in the job pack the effect of holding a politically restricted post.
Directors of children's and adults' social services
Under s.18 of the Children Act 2004, local authorities are required to appoint a director of children's services and a director of adult social services. The director of children's services has responsibility for the local authority's education and social services functions insofar as they relate to children. The Secretary of State has power by order to remove an individual appointed to such office).
Politically restricted posts
Section 1 of the Local Government and Housing Act 1989, contains provisions to introduce the principle of politically restricted posts. Local authority employees holding politically restricted posts are disqualified from membership of any local authority, other than a parish or community council, from being a Member of Parliament or a Member of the European Parliament, and from membership of the Scottish Parliament or Welsh Assembly. They are subject to prescribed restrictions on their political activity through the Local Government Officers (Political Restrictions) Regulations 1990 (SI 1990/851). This includes canvassing.
The politically restricted posts are as follow:
- Specified posts such as the head of paid service and the monitoring officer; chief officers and their deputies; officers exercising delegated powers; and political assistants. For these post-holders no rights of appeal or exemption apply.
- All posts that meet the duties-related criteria for determining a "sensitive" post, irrespective of remuneration level, unless the post-holder appeals successfully against the determination. These posts are defined as those that give advice (excluding purely factual information) on a regular basis to the employing authority, any committee or sub-committee of the authority or any joint committee on which the authority is represented, or speak on behalf of the authority on a regular basis to journalists and broadcasters. These post-holders can appeal to the head of paid service on the grounds that the local authority has wrongly applied the criteria.
Responsibility in England for considering applications by post-holders for exemption from political restriction passed from local authority standards committees to heads of paid service on 1 July 2012, in accordance with sch.4 to the Localism Act 2011. In Scotland and Wales, independent adjudicators are appointed to grant and supervise exemptions from political restriction.
Until January 2010, political restriction was also applicable to those employees whose pay was in excess of National Joint Council for Local Government Services spinal column point 44. This restriction was removed from 12 January 2010 under the Local Democracy, Economic Development and Construction Act 2009.
The political restrictions are incorporated into the contract of employment of every local authority employee who holds a politically restricted post.
UNISON has always been opposed to the political restrictions on local authority staff and claimed before the European Commission for Human Rights that the statutory restrictions in this respect are an infringement of human rights. This issue was tested in Ahmed and others v United Kingdom  IRLR 188 ECHR. It was, however, held that the Local Government Officers (Political Restrictions) Regulations 1990 did not breach the European Convention on Human Rights, since the interference with the employees' rights had been shown to be "prescribed by law", in pursuance of one or more legitimate aims within the meaning of art.10(2) of the Convention and was "necessary in a democratic society" to attain them.