In a guest post back in June 2022, a Council Officer whistleblower claimed there was a lack of governance and internal controls within Folkestone & Hythe District Council. Since then we have provided a flow of evidence which substantiates what the whistleblower stated.
Over the last few weeks we have slowly put together a comprehensive data base which shows that 40% of payments between £5,000 and £9,999 made to contractors were not on the Contracts register.
The Transparency Code 2015 states:
Local authorities must publish details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000.
A “Responsible Officer” who is an Officer with responsibility for conducting purchasing processes for the purchase of works, supplies and/or services on behalf of the Council, need only obtain one written quote in
advance. Above £9,999, responsible officers need to obtain three quotes, or use an open competitive process with tenders following advertisement by public notice using the Council’s Invitation to Tender document.
There are many work arounds of these rules, and responsible officers are aware of them.
The Council always give the gross amount in their payment data, which means with VAT, £5,000 becomes £6,000, and £9,999, becomes £11,999.
Our starting point for all the data set out herein, is the 1 April 2018, as that is when the new Head of Paid Service and Chief Executive, Dr Susan Julia Priest (pictured), took office. Our end date is 31 March 2022, as that is the last full financial year. So, four financial years.
So let’s give this some context, in this time £13,048,143 was paid out for amounts between £6,000 and £11,999. Of this £5,160,229, or 40% was paid to contractors who were not on the contracts register, as they must be.
Neither Dr Priest, or any of her officers are allowed to disregard the Transparency Code.
Paying contractors money who are not on the contracts register is a definite breach of the Council’s own Contract Standing Orders. This along with other issues demonstrates severe lack of internal controls and governance in and of itself. It supports everything the council whistleblower claimed.
The s151 Officer, who is responsible for Council’s finances, Charlotte Spendley, ought to realize that she potentially opens the Council up to a potential tort of negligence, not just utter incompetence.
In Attorney General vs De Winton 1906; which is still good law, it holds that the senior financial officer (Charlotte Spendley) employed within our council (or any council) is not simply a servant of the Council but holds a fiduciary responsibility to local tax payers and as such owes a duty of care to the public in managing Council resources on their behalf.
Furthermore S114 of the Local Government Act 1988 as amended by the Local Government Act 2000, extends the duties and responsibilities of the S151 Officer (Charlotte Spendley) to require that she must (in consultation with the Monitoring Officer – Amandeep Khroud) report to the Executive, the District Auditor and all Members of an authority if there is or is likely to be unlawful
expenditure or an unbalanced budget (ultra vires). This was supported by two QC’s who said a report must be issued; which we reported on, in late May
But it doesn’t stop there. Let’s not forget contracts awarded after they started; which we’ve blogged about recently. We’ve discovered further contracts awarded before they started to the value of a little over £4m, which is 4% of the contract value register between 1 April 2018 and 31 March 2022. One must not forget, Contracts have vanished from the Contract Register, so the amount will be approx 5.5% to 6% and closer to £6.5m.
Once again it vindicates the Council whistleblower regarding lack of internal controls and failures of governance, because you cannot start a contract before it is awarded.
We can say the amount of payments made between £6,000 and £11,999, with no contracts on the register, and contracts awarded after they had begun, amounts to £9,4m. But as we said, this figure is more likely than not higher, and closer to £11.6m.
What the above shows is:
1 Council officers are still suffering from the Peter Principle, and the Dunning Kruger effect. There are a lack of controls over contracts and payments; which breach the Council’s constitution, Contract Standing Orders and the Transparency Code as well, by not publishing the contracts above £5,000.
2 Councillors, who are the guardians of the public purse, along with the s151 officer, are not creatures for detail, and the devil is always in the detail.
3 It Opens up the Council to a potential tort of negligence, as the harm wrought by the s151 is reasonably foreseeable. There is a relationship of proximity; as Attorney General vs De Winton 1906, makes clear, the s151 holds a fiduciary responsibility to local tax payers; and it is fair, just and reasonable to impose a duty of care on the s151 officer. Again Attorney General vs De Winton 1906 makes it clear, the s151 owes a duty of care to the public in managing Council resources on their behalf.
And finally, as we know, there are two investigations into contract and financial irregularities; which have yet to be reported on, and when they are, they may well be heard behind closed doors, even though this is public money we are talking about.
NB: The inclusion of any company in this blog post is not intended to suggest or imply that they have engaged in illegal or improper conduct.
The Shepway Vox Team
Dissent is NOT a Crime