LG 1 - Cymdeithas Llywodraeth Leol Cymru
Atotiad 2 - Saesneg yn unig
Draft
Welsh Assembly Government
Protocol on the provision of Local Government Support, the Undertaking of Intervention and the Exercise of Powers of Direction under the Local Government Act 1999
Background
1.This protocol, which has no specific statutory basis, sets out the principles that should be considered in the provision of local government support, the undertaking of intervention, and the exercise of powers of direction by the Welsh Ministers under Section 15 of the Local Government Act 1999. It also describes the role of the Welsh Local Government Association (WLGA) and regulators and inspectors in these activities.
2.The general principles within this protocol have been developed in consideration of the range of statutory powers available to the Welsh Assembly Government for local government intervention and direction (Annex A) and are intended to inform the development of detailed protocols in those respective areas. However, this protocol is specifically concerned with the power of direction contained in Section 15 of the Local Government Act 1999 and the statutory duties of the Wales Audit Office (WAO) as set out in the Public Audit (Wales) Act 2004.
3.This protocol provides a framework for the Welsh Assembly Government, the WLGA, the Wales Audit Office, Care and Social Services Inspectorate Wales (CSSIW) (as an operationally distinct division of the Assembly Government), Estyn , and other regulators and inspectors to discuss policy for the provision of local government support, the undertaking of intervention, and the exercise of direction powers. The Assembly Government and WLGA are signatories of the protocol and accordingly are committed to its implementation.
4.The purpose of all support and intervention is to secure improvement in the delivery of services for the benefit of the community and citizens.
5.The protocol gives expression to the shared aim of the Welsh Assembly Government, Welsh local government and regulators and inspectors in Wales to support continuous improvement in the delivery of services by local government for the benefit of the public. It acknowledges an authority’s ownership of a problem in the delivery of its services and acknowledges where external direction or guidance is also being applied. It also provides a clear framework for support and for intervention, where appropriate.
Interpretation
6.Support: Where this protocol refers to ‘support’ it refers to additional external capability and capacity that is made available to an authority. Support arrangements per se are non-prescriptive but the WLGA has a central role in their organisation and in encouraging sharing of best practice and providing peer to peer support.
7.Intervention: Where this protocol refers to ‘intervention’ it refers to when a body external to a local authority takes action or co-ordinates action, to remedy under-performance. It usually (but does not necessarily) follow a regulator’s or inspector’s adverse judgement on an authority's performance. Additional capability and capacity may also be made available but is focussed on supporting the activity co-ordinated by the external body.
8.Direction: Where this protocol refers to ‘direction’ it refers specifically to the exercise by the Welsh Ministers of their powers of direction under Section 15 of the Local Government Act 1999.
Purpose
9.Local authorities have a responsibility to deliver high-quality, cost effective services that respond to the legitimate expectations of service users. Local authorities, therefore, have a responsibility to meet national standards and targets . They should set their own high standards - covering both cost and quality - for all the services for which they are responsible, in the context of their local priorities where these are applicable. Examples of where an authority may be considered to be under-performing in this respect include, but are not limited to, those listed in Annex C.
Principles governing local government support and intervention activities
Principle 1: Areas of actual or potential weakness should be known in advance of any moves towards support or intervention.
10.Local authorities are expected to have robust performance management arrangements in place to provide timely and accurate performance data to Cabinet members, senior management and scrutiny. This will support annual service assessments, which should be capable of identifying the main opportunities, threats and constraints that an authority faces in meeting its broad aims. Where areas of concern are identified local authorities are best placed to take immediate remedial action as part of their normal improvement cycles. The improvement cycle outcomes should be used to feed into the Joint Risk Assessment (JRA) process (Circular 28/2005).
11.The JRA process should result in agreement between each local authority and its regulators and inspectors regarding the most significant risks and challenges faced by the organisation in meeting its broad objectives and the plans for mitigating or avoiding those risks. The JRA is a process of ongoing dialogue between an authority and the regulators and inspectors rather than a single annual event. The outcomes of the risk assessment process are summarised in the authority’s annual Improvement Plan, which also outlines the improvement actions the authority intends to take in the coming year.
12.The JRA process also informs the regulatory plan that summarises the regulation and inspection activity planned in an authority for the year ahead. The outcomes of that work are summarised in the Annual Letter prepared by the Relationship Manager in consultation with the Appointed Auditor.
13.In order to avoid the risk of "wait and see" escalating into the breakdown of a service and as an aid to clearer direction, where JRAs and similar mechanisms highlight areas for concern they should also note any material possibility of a need for support or intervention where and to the extent that shortcomings are not rectified. Local authorities should then take remedial action (including seeking support) well in advance of a situation becoming critical.
14.This approach should be supported by pro-active information and process sharing. This is an essential element in advance of and during any support and/or intervention activity. Defining characteristics of this include:
i.Honesty in reporting
ii.Sharing information, processes and best practice with peers and other national organisations
iii.Maximising the sharing of robust real-time performance management data with peers, regulatory bodies and others.
15.Specifically, this information and process sharing should occur at Regional Forums for regulators and inspectors (or equivalent arrangements as may subsequently be agreed) that should meet on a regular basis (at least twice) during the year and, in turn, make appropriate connections with the Improvement Board (Circular 28/2005).
Principle 2: No automatic ladder/ratchet of Intervention
16.There is a wide spectrum of activity which can be described as either ‘support’ or ‘intervention’. Support is not automatically a stage towards intervention. Nor should support be used when intervention would be more appropriate. In some circumstances, both an authority and external bodies would welcome intervention being the first option.
17.The degree of external co-ordination and/or support provided in any given situation will vary and be selected, following discussion between an authority and other national organisations, according to what is appropriate to the authority’s context. Determining factors will include:
Type of area/problem requiring particular attention
The capacity of the local authority to refocus resources and address the issue without adversely impacting on other areas/services (including, for example, considering risks associated with staff morale and reaction).
18.The Welsh Ministers will only use their powers of direction where appropriate and proportionately to the seriousness of the failure. They will seek appropriate support from other national organisations, including the WLGA, regulators, inspectors and auditors, in rectifying the weaknesses which are the subject of any such direction.
Principle 3: Local authorities are responsible for improving their own performance, including remedying any shortcomings
19.Where there is evidence (from whatever source) of actual or potential under-performance, a local authority should have a reasonable opportunity to rectify matters itself, with appropriate support.
20.Evidence of actual or potential under-performance will often be brought to the attention of the Welsh Assembly Government or other national organisations through numerous formal and informal mechanisms. Where the totality of evidence suggests to the Welsh Assembly Government or other national organisations that an authority cannot maintain an adequate level of performance in certain services or functions without external input, that authority will be offered the opportunity to seek remedial support.
21.Assessing the need for support or intervention is necessarily qualitative and embraces numerous different forms of evidence. It is very often misleading to conceive of this in terms of fixed or quantifiable ‘triggers’, and such approaches and language will be avoided.
22.Where the Welsh Assembly Government requests information from an authority in order to help define the best support or intervention solution, the authority will be required to provide an accurate and timely response and co-operate with such action as the Welsh Assembly Government may propose. The Welsh Assembly Government will then work with the authority and other national organisations to define the best support or intervention solution.
23.Local authorities are responsible for timely diagnosis of individual performance and potential, which should be enabled by pro-active information and process sharing alongside comprehensive evaluation and assessment of senior management’s capacity. However, it is recognised that an identified need for personal/professional development may be flagged up by other means.
24.Where individual development areas are identified, peer support and challenge should be made available. Here the WLGA will normally have a major role, including help with mentoring and consultancy.
25.WLGA will also consider the solutions it can offer the authority as a whole in providing support and building capacity in light of the totality of evidence and the authority’s context, and following discussion with other national organisations who will seek to agree what most effectively represents the position of the authority.
26.There are several ways of providing support and achieving effective improvements. Local authorities have the prime responsibility for delivering quality services, addressing shortcomings and failings. The WLGA is committed to work with authorities to support improvement where problems exist. The WLGA actively encourages its member authorities to partake in pro-active information and process sharing (principle 1) so that advice and support tailored to the particular needs of the authority can be offered.
27.The Improvement Board will consider, in particular, where an ‘advisory board’ (i.e. a group of external advisors convened to assist an authority in their improvement process) may be an appropriate model for the co-ordination of any support and/or intervention activity.
28.If the Welsh Assembly Government concludes it is necessary to circumvent the principles of this protocol due to the nature of the problem and the subsequent need to act immediately, it will inform the authority of the reasons for doing so when using its powers. The form and extent of the direction will be commensurate to the type and seriousness of failure and the need to deliver effective improvement.
Principle 4: A programme for support and/or intervention activity should be established in consultation with the authority and national organisations along with clear start and exit mechanisms
29.It is often not appropriate or necessary to set strict limits for support and/or intervention activities. Instead, any support or intervention activity should be carefully considered and scoped with the authority and national organisations, taking into account the contextual factors listed at paragraph 17 and appropriate criteria for exit should be determined. Exit criteria may include, but are not limited to, evidence of stability and sustainability of:
i.Governance and leadership
ii.Performance
iii.Corporate capacity.
30.The programme of support and/or intervention activities should be agreed by the authority, the Welsh Assembly Government and other national organisations who should:
share acceptance of the issue requiring particular attention
agree the approach being adopted
agree the levels and types of support or involvement, including financial and human resource commitments
agree start and exit criteria.
31.All should acknowledge that there is an unavoidable stigma associated with intervention, and even with some forms of high-profile support. This can have a seriously detrimental effect on a local authority’s image and reputation and in particular on its ability to recruit and retain staff. This can and should be mitigated by a phased exit strategy which publicly acknowledges progress made by the local authority during support or intervention, and reduces the level of engagement accordingly.
Principle 5: There should be 360? Feedback
32.A system of 360? feedback (i.e. a feedback mechanism whereby the perceptions of key internal and external audiences regarding the quality and effect of the intervention activity are captured and compared to perceptions of the authority’s self-view) should feature to ensure that any lessons there are to be learnt are fully captured. Therefore, a formal case review and evaluation should be undertaken by an external party at the end of each intervention. This will be arranged by the Assembly Government and will produce:
i.a published report for public learning.
ii.a non-published case study for those involved for the purpose of their own learning.
33.The case review and evaluation should comprise:
Reflections on the ‘before’, ‘during’ and ‘after’ of intervention activity
the authority's considerations of the external bodies and partners
self-reflection by an authority's leadership
the external bodies' and partners’ observations on the authority.
34.To distil the learning and ensure that it feeds back into the policy process, the public report should be shared with the Improvement Board, the Inspectorates Forum and Welsh Assembly Government Policy Boards. Non-published case studies should be shared only with those involved (including the relevant Regional Forum for inspectors and regulators).
Exercise of powers of direction under the Local Government Act 1999 by the Welsh Ministers
35.Where it is decided, following discussion between the authority and national organisations, that direction is an appropriate course of action, direction powers will be invoked on the basis of clear evidence and the risk identified through the Wales Programme for Improvement process. Such evidence may emerge from (amongst other sources):
- annual audits of financial accounts
- the joint risk assessment (including for example lack of effective scrutiny, lack of effective performance management)
- inspection reports and other regulatory activity
•draft reports, complaints, or reviews
- failure to comply with statutory duties
- failure to deliver action plan outcomes
- audit of annual improvement plans
- reviews of functions
- regulatory action and reports that flow from that
- public interest reports
- whistleblowing that triggers formal action, reports of inquiries, Ombudsman investigations or judicial findings
- concerns raised about serious danger or harm to the public.
36.Before the decision to exercise powers of direction is taken, the authority will have had the opportunity to make representations about any report or evidence that is the basis for a proposed direction. These representations are a significant part of the process in determining whether the exercise of powers of direction is appropriate. If necessary, and as urgently as the case requires, the Welsh Assembly Government could require further investigations to be made to ensure it has all relevant information on which to base a reasonable decision.
37.Where it is decided that the exercise of powers of direction may be necessary, the Welsh Assembly Government will formally notify the authority, the WLGA and the Inspectors/Regulators. The usual sequence of action would be as follows:
•the authority will be notified in writing of the improvements the Welsh Assembly Government judges necessary;
•the authority will be given a deadline to produce and publish a statement of action for making such improvements;
•the statement of action will need to set out clearly the actions to be carried out, the support that will be required, the people responsible for delivery, the costs involved, the intended outcomes, the dates by which they are to be achieved, the authority’s own proposals for monitoring and implementing the statement of action, and the arrangements for monitoring the continued success of improvement actions;
•if the statement of action is acceptable to the Welsh Assembly Government, the authority will be notified, informed how implementation will be supported and monitored, and given criteria for exit;
•if the statement of action is unacceptable the Welsh Assembly Government will notify the authority, the WLGA and the regulators/inspectors of its being minded to direct the authority under the powers contained in section 15 of the Local Government Act 1999;
•the authority will be given the opportunity to make representations about the direction proposed.
38.If the statement of action is accepted but the action is not being implemented effectively, or if the outcomes are not met on time, the Welsh Assembly Government will inform the authority, the WLGA and inspectors/regulators and direct the authority as appropriate to secure improvements.
Exercise of powers of direction in cases of urgency
39.Although the above arrangements will be the norm, there may be exceptional cases where, for example, the severity or persistence of failure, or the continuing risks of harm or financial loss, show that urgent direction is necessary. If such circumstances prevail, then the Welsh Assembly Government retains the discretion to abbreviate the procedures outlined above as it sees necessary so as to move immediately to giving a direction. When exercising its powers in this way, the Welsh Assembly Government will notify the authority, the WLGA and inspectors/regulators of the direction that is necessary and the reasons for urgency. In this respect, the Welsh Assembly Government will be subject to the requirements of section 15.
Nature of a direction
40.The Welsh Assembly Government may take such action it judges necessary to secure compliance by the authority with the requirements of Part 1 of the Local Government Act. This may require, for example, directing the local authority to act within a specified period to:
•prepare or amend an improvement plan;
•follow specified procedures in relation to an improvement plan;
•establish appropriate support and advice arrangements;
•establish performance reporting and management arrangements that enable effective executive and scrutiny functions within the local authority
•carry out a review of its exercise of specified functions;
•make sure a function is carried out so as to achieve specified objectives;
•secure advice/ support on the performance of that function;
•secure the function from a specified provider (i.e. a neighbouring authority) or put the function out to tender.
•hold a local inquiry into the exercise by the authority of specified functions.
Monitoring and review
41.In cases where a function is exercised by the Welsh Assembly Government or a person acting on its behalf, the Welsh Assembly Government will aim to return that function to the control of the local authority as soon as is practicable. To that end it will regularly monitor the function involved and consider whether the authority is in a position to resume and sustain effective responsibility for the function. The Welsh Assembly Government will notify the authority, the WLGA and regulators/inspectors of any decision arising from such monitoring and the reasons for it.
42. Where the direction is such that the responsibility for the function remains with the local authority, the direction will be lifted when the Welsh Assembly Government is content that the objectives of the direction can be met on a sustainable basis (and in accordance with clear exit criteria)
Media relations and exchange of information
43. Any announcements, publications or press releases issued in relation to any part of the procedures for support or intervention activities covered under this protocol will be subject to the agreement set out in the document “Local Government Partnership Scheme” (extract at Annex B).
Signatories to the Protocol:
Minister for Social Justice and Local Government
Leader of the Welsh Local Government Association
ANNEX A
OTHER STATUTORY POWERS AVAILABLE TO THE WELSH MINISTERS FOR LOCAL GOVERNMENT INTERVENTION OR DIRECTION:
•to intervene in certain education matters under sections 497 and 497A of the Education Act 1996 and section 68 of the Education and Inspections Act 2006;
•to intervene in social services matters under section7D of the Local Authority Social Services Act 1970 and in relation to certain matters concerning children under section 84 of the Children Act 1989 and section 50 of the Children Act 2004;
•to intervene in relation to the right to buy, under the Housing Act 1985;
•to intervene in relation to building regulations, under section 116 of the Building Regulations Act 1984;
•to intervene in relation to a local development plan under section 71 of the Planning and Compulsory Purchase Act 2004;
•to intervene in relation to certain traffic management duties, under the Traffic Management Act 2004, sections 20 –27;
•to intervene in library authority matters under section 10 of the Public Libraries and Museums Act 1964.
•to direct the Auditor General, under section 10A(2) of the Local Government Act 1999, to carry out an inspection of an authority’s compliance with the requirements of Part 1 of the Act. In conducting the inspection, an inspector has a right of access at all reasonable times to any premises of the authority or any necessary document relating to the authority, and can require the provision of such document or require the attendance of the person holding or accountable for such document to give any information of explanation about it (section 11 of the Act).
ANNEX B
Extract from ‘Local Government Partnership Scheme’
The Sharing of Public Announcements
9.10The Assembly Government will seek to share news releases and public statements concerning local government with the associations representing Welsh local government in advance of the media. If it is not possible to share fully the text of any such pending release or statement, the Welsh Assembly Government's press office will liaise with counterparts in the relevant association to provide advance notice of the imminence and likely content of a release or statement.
9.11News releases and public statements directly concerning an individual local authority or its geographical area will be shared with the press officer or other appropriate officer of that authority in advance of the media.
9.12Where public announcements regarding co-operation on policies, publications or projects take place, a joint statement incorporating comments from the Assembly Government and the relevant association may be used when appropriate in place of complementary press releases.
9.13Associations representing Welsh local government will adopt reciprocal arrangements with the Welsh Assembly Government.
ANNEX C
The following list provides examples of where an authority may be considered to be under-performing in relation to the Wales Programme for Improvement.
This is not an exhaustive list.
Failure of Process
•a failure to consult or consult adequately as identified by the external auditor
•a failure to produce an improvement plan, or a failure to include any of the statutory elements within it
•a failure to agree, publish, or carry out a programme of reviews in compliance with the statutory framework
•unreasonable neglect of alternative options for service provision when conducting reviews
•a failure to collect and report on core data sets within the performance measurement framework
•a failure to set performance targets or publish details of performance against them
•a failure to set performance targets which are based on a sound understanding of current performance;
•a failure to compare performance with that of others
•a failure to analyse effectively performance information
•a failure to make adequate information available to local people about the performance of the authority in relation to other bodies
Failure of Substance
•persistently high costs (by comparison with other councils or, where appropriate, with private and voluntary sector providers) which are not satisfactorily accounted for by higher quality service or greater level of need
•failure to improve service standards or a deterioration in standards (as defined in Wales Programme for Improvement Guidance)
•failure to draw up and implement an action plan following a critical regulatory report
•failure to undertake a robust Joint Risk Assessment and agree a subsequent Regulatory Plan
