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Clerks report on General Power of Competence
Background
Parish councils are legal entities established by statute and as such have powers and duties also enshrined in statutes. Until the localism Act of 2011 parish councils were only permitted to do those things where they had the powers spelt out in statute. Most of the powers conferred by statute are specific, such as the power to provide allotments or burial grounds.
In addition to specific powers there is also a wider power under section 137 of the Local Government Act, to permit expenditure, up to certain limits, for purposes not otherwise authorised, provided it is to the benefit of the area or part of it, or all or some, of the inhabitants. S137 is a power of last resort and where other powers exist they should be used
Typically the expenditure on grants usually falls within S137. Since S137 has to be to the benefit of the whole of the parish or part of it, grant aid an individual is not permitted.
It follows from the above that Parish council activities are subject to legal challenge for stepping outside the powers or in excess of the limitations
Recent Legislation – Localism Act 2011
Statutory instrument 965, “Parish Councils (General Power of Competence)(Prescribed
Conditions) Order 2012, issued under the localism act introduced a “General Power of Competence” (GPoC). The intention being to allow “Eligible council” powers to undertake an activity or incur expenditure without the need to have to identify specific powers.
“The Government’s intention in providing eligible parish councils with the general power of competency is to better enable them to take on their enhanced role and allow them to do things they have previously been unable to do under existing powers”.
Eligible councils have “the power to do anything that individuals generally may do” as long as they do not break other laws. It is intended to be the power of first, not last, resort. The eligible council has to ask itself if an individual is allowed to do it. If the answer is “yes”, then a parish council is normally permitted to act in the same way.
Use of a GPoC is not restricted to the boundary of the parish it may be used anywhere
The only real limitation is that the general power of competence cannot be used to circumvent an existing restriction in an existing specific power. Neither is a GPoC relevant where an individual cannot act eg issuing a precept relies on specific powers conferred elsewhere.
GPoC is a power, an does not replace “Duties” imposed on councils, such as those concerned with Governance and Finance.
Typically GPoC has been used to run community shops, establish a company to provide services, Grant aid an individual.
Since it is te power of first resort it is incompatible with S137 LGA 1972 and if the parish adopts a GPoC S137 will no longer be used
Eligibility
There are 3 conditions which have to be met for a parish to adopt a GPoC
a. It must pass a resolution that it meets all the criteria and adopts a GPoC. The resolution can be passed at any time at an ordinary meeting of the council
b. At the time of passing the resolution at least two thirds of the council are there by virtue of being declared elected (all 7 current councillors have been declared elected even though the election was uncontested).
c. At the time of passing the resolution, the parish clerk must hold a recognised professional qualification: –
• The Certificate in Local Council Administration (CiLCA);
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• The certificate of Higher Education in Local Council Administration; or
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Governance awarded by the University of Gloucestershire or its successor qualifications
Once the resolution has been passed the parish council has the freedom to Act with the same powers as individual persons (except where prohibited by law). The GPoC stays in existence until the next “relevant” meeting where the GPoC lapses unless a repeat resolution is passed and all three criteria are still met. The next “relevant” meeting is the annual meeting following the four yearly elections.
Glinton Parish council meets all three requirements
Recommendation
Parish are recommended to pass the following resolution
“The Parish Council hereby confirms we meet the eligibility criteria for adoption of a General
Power of Competence as defined in the Localism Act 2011 and SI 965 The Parish Councils (General Power of Competence)(Prescribed Conditions) Order 2012. We further resolve to adopt a General Power of Competence.
If adopted, the GPoC will remain in place until the annual meeting to be held in 2018 immediately after Parish council elections are concluded. If then, again approved, it will remain in force until the annual meeting immediately following the next elections for the parish council
John Haste
11th May, 2022