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Last updated: 18-05-2023. From web page: Council Constitution.

Council Constitution 24 Part 10 - Recording Officer Decisions

Decision making and delegation

Background

  1. This document sets out the legal framework to decision making and establishes a system to document decisions taken under delegated authority.

Types of Decisions

  1. The significance of decisions taken under delegated powers will vary, and officers authorised to make delegated decisions will need to exercise judgement in determining whether decisions are significant enough to require placing in the Forward Plan if they are Executive functions and/or formally recording. To assist in this process, decisions relating to Executive functions are defined as Key or Administrative. Key Decisions must be formally recorded in accordance with paragraph 7. Administrative Decisions although not required to be formally reported to the Proper Officer, must be recorded so as to provide an audit trail as referred to in paragraph 7.
  2. In relation to non-Executive functions, officers should adopt a similar approach to formal recording to ensure transparency of decision-making. Whilst Scrutiny Panels cannot consider decisions of Regulatory Panels, such officer decisions can be challenged externally through the courts. A delegated decision form to record Council functions is referred to in paragraph 5.2.
  3. A Key Decision is as defined in Article 12.

The Process

  1. Before taking any decision, the authorised officer must take into account the principles of decision making set out the Constitution
  2. All proposed Key Decisions must be in the Council’s Forward Plan which sets out matters to be considered by the authority over the following four months and is updated on a monthly basis. Officers proposing to make a Key Decision and needing to place an item on the Council’s Forward Plan should complete the Forward Plan template and supply this to the Democratic Services Officer. This is available on the Council’s intranet site. Key decisions must be published on the Forward Plan at least 28 clear days before the proposed decision date.
  3. If it is impracticable to include the matter in the Forward Plan, then the officer must comply with the legal requirements relating to exceptional and urgent Executive decisions. These are laid out in full in the Access to Information Procedure Rules, Part 4 of the Council’s Constitution. Officers will find the explanation of the constitutional and legal position set out in the Corporate Standards on Decision-Making.
  4. If an officer is unable to give five clear days notice of a Key Decision that was not in the Forward Plan, s/he can take the decision only if the chair of the relevant Scrutiny Panel agreed that the decision is urgent and cannot reasonably be deferred. The full procedure is again set out in the Access to Information Procedure Rules and again laid out in the Corporate Standards on Decision-Making.

Call-in

  1. Relevant decisions made by officers are subject to call-in by the relevant Scrutiny Panel and cannot be implemented until either the call-in period has expired or the Scrutiny Panel has made a decision regarding the call-in. The call-in procedure is set out in the Overview and Scrutiny Procedure Rules within the Constitution.

Recording the Decision

  1. Officer Key Decisions are recorded in the same manner as Cabinet / Cabinet Member Key Decisions. The nominated Democratic Services Officer will produce a Decision Record in the same format as those relating to Cabinet decisions following the officer decision taking as advertised on the Forward Plan.
  2. The Democratic Services Officer will maintain a record of all decisions referred to in paragraphs 5.1, including any report upon which each decision was made and subject to any requirement for confidentiality, will ensure that this decision is recorded by the Council. S/he will also ensure that the record of decisions is available for public inspection during all normal office hours and that the public has the right to copy or to be provided with a copy of any part of that record upon payment of a reasonable copying and administrative charge.

Authorisation of Officers to exercise Delegated Powers

  1. The Officer Scheme of Delegation includes the power for officers to authorise other officers to exercise delegations that have been delegated to them under the Scheme. This must be to another officer or officers of suitable experience and seniority. Each Executive Director, Service Director and Head of Service will prepare a Scheme of Authorisation within 28 days of the Council’s AGM when the Scheme of Delegation is approved, and revise it as appropriate during the year. It shall set out how decisions will be made in his/her area. This should establish which officers will be given authority to make decisions under the Chief Officer’s delegated powers, and subject to which terms and conditions. The Scheme of Authorisation will be lodged with the Director of Legal & Business Services.
  2. Whilst Executive Directors, Directors and Heads of Service may authorise other officers to take delegated decisions, the decision is still their responsibility, who will be accountable for the decision to authorise and the exercise of that authorisation.

Referral

  1. Whilst this Scheme is designed to encourage officers to take responsibility for decisions, an officer may decide that a particular issue is such that it should be referred to the body from whom authority was delegated. Such a referral must take place where the proposed decision relating to Executive function is in conflict with the Council’s Budget and Policy Framework.
  2. The Executive may also direct an officer’s delegated authority should not be exercised and that the matter should be referred to the Executive.
  3. In relation to the exercise of non-Executive functions, the officer may decide to refer a particular issue to the Committee or sub-committee from whom it was delegated, or if none, arrange for an appropriate recommendation to be made to Full Council.

Giving Reasons

  1. A matter of increasing significance in local authority decision-making is when reasons have to be given. Generally, giving reasons is an accepted ‘best practice’ principle of good administration. Case law suggests that the practice may be important in ensuring that controversial decisions are rooted in relevant considerations and with proper regard to available legal powers.

Accountability

  1. Officers are accountable to the Council for any decision they make, and with the exception of decisions relating to non-Executive functions, may be required to report to, and answer questions from a Scrutiny Panel in respect of any Decision. Scrutiny Panel may also call in Key and Major Decisions before they are implemented and may recommend a course of action when the matter is to be reconsidered by the officer.

Consultation with Members

  1. General Provisions
    1. Decisions made by officers under delegated powers fall into two principal categories, namely:
      • decisions delegated to officers in or following consultation with Cabinet Member (which may or may not be Key Decisions); and
      • other decisions delegated to officer (which are not required to be taken in or following consultation with Cabinet Members) and which may or may not be Key Decisions.
    2. Officers to whom decisions have been delegated have a duty to ensure that effective consultation takes place in accordance with the Constitution / the terms of the delegation.
    3. Every effort will be made to ensure that Members have a realistic time scale to respond to consultation and, where appropriate and reasonably practicable, this time scale will be sufficient to enable Members to consult with their constituents. Members will be informed of any time restrictions which may apply relating to the process of consultation, particularly where urgent action is needed in the Council’s and/or the public interest.
  2. Decisions by Officers following consultation with Cabinet Members

    Officers to whom decision-making powers have been delegated, subject to consultation with Cabinet Members, will ensure that such consultation takes place.

  3. Other Decisions delegated to officers
    1. Officers acting within the remit of their delegated powers will ensure that they identify, at an early stage, issues upon which Members should be consulted; and
    2. Officers will ensure that appropriate and timely consultation takes place and always with the Chief Financial Officer and the Director of Governance, Legal & HR (or their nominee).
  4. Consultation with Cabinet Members

    Officers will ensure that appropriate consultation is undertaken with Cabinet Members on issues relating to their Portfolios.