LGA 1972 S111

Question

I have had many a debate about s137 and the power of last resort and seek to understand what PCs can spend money on. . Recently however I came across a clerk who regularly used LGA1972 s111 for expenditure that didn’t fit under the normal powers . S111 reads “a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. This comes under the heading of PC subsidiary powers.

What are subsidiary powers (are they somehow associated with  "full powers ")  and to what extent can this legislation be used ?

Answer 1

Section 111 is not the general catch-all many people assume it to be. The devil's in the detail. Breaking it down, it gives the council the power to do anything which:-

will facilitate the discharge of any of their functions; or

is conducive to the discharge of any of their functions; or

is incidental to the discharge of any of their functions.

In order to use this power, the council must first identify which of their functions the proposed expenditure relates to. In almost every case, if the expenditure relates to a function of the council, it will have a specific power to incur the expenditure, so Section 111 is not the appropriate power to use. Legitimate use of S111 by parish and town councils is extremely rare.

Your example of a clerk regularly using Section 111 for expenditure that didn't fit under the normal powers seems at odds with the legislation. If the council lacks the normal power to act, S111 will not provide it. If that were the case, Section 111, handed out freely to every council since 1972, would be of far greater value than the General Power of Competence and no council, councillor or clerk could ever be accused of acting ultra vires.

Comments

I tend to agree with your thinking although your response does tell me what its not. not what it is.  If a power exists as it relates to a certain function then it is arguable that almost anything which has the remotest connection to it is allowable. It does make you wonder what was the envisaged purpose of this legislation  when written.

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The power is available to all tiers of council and is more widely used by larger councils for joint ventures and some forms of income generation. The Localism Act mopped up some of the provisions at parish level previously linked to S111, but it's debatable whether or not a parish council has a specific power to fund training for their clerk, or pay the clerk's subscriptions to professional bodies, or to fund a parish plan, or promote environmental issues, so any of the above could be a legitimate S111 expense.

Having a general provision such as this allows the sector to move with the times and innovate, within the specified parameters. It provides the flexibility that has allowed the legislation to remain largely unchanged for almost 50 years, during which time our world has changed beyond all recognition.

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I am getting to the nitty gritty stage re a complaint to the auditors about my PC spending huge amounts on possibly employing consultants at planning enquiries . I recently read some bumf on the GPC which reflected on S111 as follows
Section 111 of the Local Government Act 1972 gave local authorities the power to do anything “which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. In using this power, authorities would need to identify which of their functions an activity was ‘incidental’ to. Case law limited the degree to which functions could be justified on the basis that they were incidental to activities that were themselves incidental to local authorities’ functions.
I am trying to understand what the last para actually means in plain English . I have found legislation which talks of PC appearing at inquiries being entitled to be heard but it talks in terms of  Councillors themselves presenting . The question is of course can they use s111 to employ consultants?. There seems to be some indication that if it were so vital to “the cause “ then there would be something about in the legislation . I have found two cases where council have attempted to defend using S111 and lost . Still not sure I understand that last sentence though (or what functions are) . Be interested in others comments

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I'm pleased to see your comment, our Parish Council is hell-bent on buying a bench for a resident/family to replace one that was purchased in the 1990's by the then council members, who evidently didn't understand the S137 regulations at the time. Since you can not buy something for an individual. This has been explained to the current members who have now taken to trying to use S111 as justification. From what I can see using S111 is proof of financial irregularity it is an abuse of the power especially for a lowly bench. Things are so bad here they haven't even published a budget v actual for six months.

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Is the bench not for the benefit of all the community ?  Depends where it is sited I suppose

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Hi Marcus back in 1990's the bench was purchased without question for a resident, the family did not maintain the item and it became unsafe, it was removed and that was when a complaint came to the council even though the council had agreed a policy that new benches would not be provided unless needed. In this case, there are about ten other benches where they could put a plack. The new councillors are just hell-bent on having it even though the previous members of the council put forward a memorial wall which would have been better suited. The other point is that the new members of the council know the family personally.