Who is responsible for confirming a Councillor hasn’t fallen foul of S85

Question

Hi. Who is responsible to ensure a Councillor hasn’t fallen foul of Section 85 LGA 1972 - ie 6 months not attending PC meeting when the PC becomes inquorate?
Thanks

Answer 1

Nobody is responsible as such. The council can resolve to allow a councillor to go past the six month period and remain in office if his or her  personal circumstances are viewed sympathetically , recovery from a stroke, operation etc. But there is no obligation for the clerk or council to remind a councillor that the six month deadline is imminent etc even if the PC is quorate. That said, a good clerk would make the council aware of an imminent six month deadline and suggest that those getting close to it could be sent a reminder.

Comments

I agree, certainly the two previous Clerks would have done so

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Is it not the clerks job to advise council of legal obligations and imminent affects on the council's position. I would argue that this includes actions by individual councillors. A good council would ensure that the apologies section is not just a nod through but an accurate register of attendance by councillors and acceptance or rejection of reasons for non-attendance. Surely as a bare minimum they owe it to their electorate as a basic measure of councillor performance.

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Councillors should be acquainted with their legal and procedural obligations, but in the real world, not all are. I think a good clerk should however make councillors aware of an impending six month disqualification because it isn't the members job to compile and present attendance data. A suspension will entail either a possible by election which brings extra costs or a co option which entails extra councillor activity. Surely it is better to know in advance about these arising than just be told about them out of the blue, particularly if they risk some council meetings being non quorate.

Answer 2

The PC may only resolve to ‘allow” an extension past 6 months non-attendance if that approval is resolved before the expiry of 6 months non-attendance.
Who is responsible for legislative compliance?
Generally speaking that would be the Proper officer who, more often than not, will be but is not required to be the clerk.

Answer 3

The responsibility for ensuring a councillor does not fall foul of s85 is the councillor themselves.  Neither the clerk nor anyone else has a legal duty to remind the councillor that they must attend meetings, although some would argue that there is a moral obligation.  It would be the clerk's responsibility to inform the principal authority that a councillor has failed to attend for six months.

You have mentioned that the PC becoming inquorate in your question.  Failure to attend for six months does not necessarily render the PC inquorate unless the number of councillors falls below the minimum as a result of that absence which would render the PC unable to operate.   This does not affect the operation of s85 which would apply regardless of whether the council has met or is able to meet.

Comments

We were only operating with 3 Councillors- after their last meeting (29/3/22) without apparently saying, AFTER that meeting, one resigned leaving the Council inquorate and no possibility of ‘waving the 6 month rule’

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No legal duty upon a proper officer to remind anyone of their personal responsibility to attend a PC meeting. There is a matter of professional responsibility to ensure a PC functions effectively and within legislation though.
This sort of ‘not my job’ dismissive attitude is hardly a paradigm example to be setting.
The clerk issues the summons, the clerk records the attendees in the minutes, the clerk has contact details for individual Cllrs which may not be available to Cllrs.
There would be no HARM in the clerk (or chair) seeking to understand the reason for non attendance from a simple human / welfare position of interest let alone the consideration of effective running of the PC.
That the person has now been absent for 6 months takes the PC into dysfunction through lack of numbers.
Well done all  - especially the clerk and chair (who, in my estimation bear additional responsibility even if it isn’t written in blood in the legislation.

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The council doesn't have any option to "waive" the six month rule.  It is an operation of law so outside your control.   If you are inquorate as a result of the recent resignation, your clerk needs to report this to the elections office at your principal authority.  They, the principal authority, have a legal duty to appoint someone to ensure you are quorate (it's often a district councillor) and can continue to operate.

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Yes it does:

“…unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority...”

s85(1)

In practice, this is the acceptance of an apology for absence which happens at the beginning of the meeting.
Apology accepted = 6 month clock starts again
Absence noted either without apology or apology not accepted = clock ticks towards 6 months.
Wasn’t it you previous post that stated in your PC apologies are subject to a blanket rejection since it is either in attendance or absent and anything else is just bluster?

I may be wrong but I think that was yourself.

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Not me -
We had 3 councillors at meeting in March 2022.
After meeting ended one resigned.
Presumably didn’t warn the others!
So they could not waive s85 (approve their absence)

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Apol’s - didn’t mean yourself Allyson, I meant DBsW.
I seem to recall a previous post / thread where it was stated that one PC (can’t rightly remember who the poster was) simply didn’t accept apologies and just recorded present or absent.
Actually, I very much agree with that status since who is qualified to decide if one Cllr’s apology is more or less ‘genuine’ or ‘appropriate’ than another’s.
Simpler to just record present or absent. I like it.
I liked it so much I adopted it!

Answer 4

On reflection - as is often the case, it is the question which is ambiguous here.
Are you saying the PC is ALREADY inquorate and that cllr(s) may have not attended meetings for >6months BECAUSE there has not been a meeting for > 6 months?

The question is open to several different interpretations.

Comments

Hi
NALC sent a Legal Update out June 2020 that confirmed s85 says 6 mths starts with last meeting attended, and covers entire period up to next meeting called - if there are no meetings for 6mths, all councillors will cease to be councillors!
Googled lralc NALC June 2020

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Yes! After last meeting (March 2022) one of the three remaining Cllrs resigned

Answer 5

The ruling is not black and white - has apologies been accepted for the missing councillor, are they in the services?  If a councillor is or personal circumstances or even some work commitments especially in todays job climate then they could challenge the decision- Tread carefully and seek advice would be my advice.

Comments

What ruling?

There is simply the primary legislation and elements such as active service duty and acceptance of apologies is in the existing legislation.
Or do you have a Judgement / Court ruling to reference?

It is an entirely different matter - primary legislation already exists. If you believe there to have been a ‘ruling’ which amends, supersedes or replaces primary legislation PLEASE reference it.