Two QCs say report must be issued over unlawful expenditure of Premier Roofing & Clifford Carpentry and Interior contracts
Following on from our last post,
Is this evidence of Fraud, Financial Irregularities, Non Compliance @ Folkestone & Hythe District Council?
we sought the legal opinions of two Queen’s Counsels (QCs) who specialize in Local Government Law.
As such we were advised it is necessary to consider Folkestone & Hythe District Council’s constitution, as it is the legal framework which holds the Council, its officers, and elected Councillors to account.
The only specific provision of the constitution which we have identified that relate to the questions we asked: Is it evidence of fraud financial irregularities and non-compliance by FHDC, are set out at Part 10 – Financial Procedure Rules, Contract Standing Orders and Auditing the Council.
However, the QCs made it clear, the constitution does not stand alone as other statutes affect it.
The two QCs, both specialists in Local Government law, have concluded that the expenditure about which they were asked to advise the Shepway Vox Team, was unlawful. They state:
In the circumstances, and subject to anything which may emerge during the Council’s investigation and the Internal Auditors investigation (led by Christine Parker of EKAP), it seems inescapable that the Chief Finance Officer & s151 officer (Charlotte Spendley) must make a statutory report or reports. The reporting function under s114(2)(a) & (b) of the Local Government Finance Act 1988, is by way of a duty that must be fulfilled when the conditions arise for it to apply, as they do in these set of circumstances given the evidence available. Even if there might be cases in which the incurring of unlawful expenditure could properly be treated as something de minimis and to be disregarded, the present case cannot be regarded as falling into that category. The sums in question are material, and the reasons why the expenditure was unlawful are far from technical. Even if past expenditure on the Premier Roofing contract and Clifford Carpentry and Interiors were by some means returned (probably not easy to achieve), that would not alter the fact that the relevant expenditure had been unlawful when the excess was incurred, and nor would it solve the problem of fundamental breaches to the Council’s constitution and in particular Part 10 of the Council’s constitution – the Financial Procedure Rules, Contract Standing Orders and Auditing the Council.
The QCs go onto say:
Although our specific remit in this case was to assess the unlawful expenditure we agree with the client’s suggestion that the Council’s monitoring officer under s5 of the Local Government and Housing Act 1989 must also have been triggered, on the basis that there has been a contravention of an enactment or a rule of law. Engaging in unlawful expenditure without statutory power to do so can be regarded as a contravention of the rule of law that statutory bodies must act within the powers given to them by statute. Making unauthorised payments on contracts in circumstances such as this is similarly a contravention of the ultra vires rule.
The Chief Finance Officer (Charlotte Spendley) is required under the Local Government Finance Act 1988 to consult the monitoring officer (Amandeep Khroud) when preparing a report. In such circumstances, we see no reason why the monitoring officer’s own reporting duty cannot in substance be discharged by the provision of appropriate comments within the CFO’s report (e.g. to the effect, if this is the case, that the monitoring officer agrees with what the CFO has said, considers that the facts set out amount to as 5 contravention, and wishes the comments to be treated as a report by the monitoring officer).
Lord Agnew states: “Total fraud loss across government is estimated at £29 billion a year.”, and given the last Annual Fraud Indicator by forensic auditors stated “43.4bn” in local government, the unlawful expenditure by the Folkestone & Hythe District Council is just the tip of a giant iceberg.
The council cannot empty bins, procure contracts properly, spend money lawfully and many other things. The incompetence is unbelievable and the unlawful behaviour of the council is not missed on the public.
They – the Council – have allowed their reputation to be damaged beyond repair, and the public will consider them corrupt, if they don’t already.
I wonder how their respective professional bodies (eg: Law Society, etc) would react to a referral from a member of the public? I doubt if such a referral would be “pushed aside” as would probably be the case if a referral was made to FHDC.
Yes then there is the Chartered Accountant body Ms Spendley belongs to the FRC, RICS who Mr Clifford and Mr Wallner belong to, an there are more bodies to deal with the Chief Exec and Mr Blaszkowicz. There are the local government chronicle, The MJ and Public Finance online magazines. Don’t expect Kentonline to do anything as they’ll not bite the hand which feeds them. Oh and finally, as an elected Cllr said today ‘Fish rot from the head down’
Crispin: It does not bode well expecting the law society to take a local authorities head of legal services to task, a file of irrefutable evidence was provided to them regarding Deborah Upton when she was head of legal services , head of housing and monitoring officer at Medway where she dismissed whistle blowers who blew on contract fraud, the whistleblowers took her to court and won, law society did nothing at all, would not even investigate!!!!!
Remember Deborah Uptons husband got rid of Mr Wallner from Medway Council for contract fraud and Deborah immediately employed him, now tell me no-one at the council knew they were employing a known fraudster?
And I thought it was only councillors who like to stick their snouts in the trough.
Obviously wrong thinking there then.
I always wonder whether any national legislation includes a section which states that our local council does not to abide by current guidelines or statutes with an extra provision that local councillors should maintain a complete lack of scrutiny coupled with wilful blindness to wrongdoing.
Doubtless right now the document shredders are going as fast as in 1975 in the US Embassy in Saigon, followed by data corruption or loss on the Folkestone & Hythe District Council servers.
Is a cover up worthy of Mikey [Stainer] imminent?
As Harry Hill might say “What’s the odds of that then?” Pretty high I reckon because they’ve got a magic money tree called council tax payers – so no problem there then.
Or is there going to be something unique happen where senior staff are actually held responsible and do the decent thing and get sacked.
Yeahhhhhhhhh.. Right like that’s going to happen ehhhh.
Think I’ve cracked it!!!
There actually hasn’t been a fraud technically speaking and the monitoring officer and Sec 151 officer cannot be held accountable because no one intended to break the law. It’s good enough for Boris Johnson, so why not local authority fraudsters and incompetent council officers?
Yes….. And as the Tories said in Parliament sometime back “the law was only broken in a very specific and limited way”
It’s all so simple now.
Thanks for that.. I feel much better now knowing that they obviously can’t be fraudsters or incompetent.