Birmingham City Council’s City Solicitor and Monitoring Officer issued a section 5 report last week. But what is a section 5 report?
A quick internet search would probably lead you a notice issued under section 5 of the Landlord and Tenant Act 1987, where the landlord informs a leaseholder that they are selling the freehold. But in this case we are concerned with sections 5 and 5A of the Local Government and Housing Act 1989 instead.
For local authorities, a section 5 report is issued by the monitoring officer when they believe that a proposal, decision or omission by the authority has, or is likely to, break the law. Specifically, the notice is issued due to a ‘contravention … of any enactment or rule of law’ and the report by the monitoring officer pertains to that proposal, decision or omission.
A section 5 report can also be issued for any maladministration or failure as mentioned in Part III of the Local Government Act 1974 or Part II of the Local Government (Scotland) Act 1975, which makes the corresponding provision for Scotland. Section 5 itself deals with decisions made by the council and its committees, while section 5A deals with decisions made by elected members under executive arrangements, such as cabinet members.
The monitoring officer in a local authority is the statutory officer responsible for the authority’s legal governance, in much the same way as the chief financial officer (the section 151 officer in England and Wales and the section 95 officer in Scotland) is responsible for the authority’s finances.
A section 5 report should be published in consultation with an authority’s head of paid service (e.g. chief executive) and the chief finance officer. Once issued, a meeting must be held by the authority within 21 days to discuss the matter, the same timeframe for a section 114 notice concerning financial irregularity, except for police and fire authorities which have three months instead.
Birmingham’s section 5 report was issued due to the council’s failure to secure a decision relating to the implementation of a job evaluation programme, and its failure to come up with a plan within the statutory timeframe to address issues which led to it issuing a section 114 notice two weeks earlier in relation to the severe ongoing financial challenges facing the council. As such, it indicates that more time is needed to solve the problem. Commissioners are likely to be appointed shortly by the secretary of state to take over some of the council’s functions from the elected members.