The coronavirus pandemic is creating difficult and worrying times for everyone and local authorities in particular have to deal with many of the harsh practical consequences. They must continue to provide services and comply with their statutory obligations but at the same time provide stability and continuity for their communities.

Some of these issues are peculiar to public bodies and thought needs to be given to the legal implications of these:

  • What happens if services have been outsourced and the service provider becomes insolvent or gets into difficulty as a result of the problems we face? Local authorities will need to consider the best option to ensure continuity and future provision of services. There are also likely to be questions arising as to the status of staff used for outsourced services and ownership of assets used in the provision of such services.
  •  
  • Decision making and democratic accountability. Many local authorities have sensibly decided to postpone face to face meetings for the foreseeable future but they still need to function and the public will still expect there to be transparency of decisions. Those involved in the governance of local authorities need to be satisfied that their constitutions are up to date on the details of delegations, recording of decisions and provisions for decisions in times of urgency.
  •  
  • Public Procurement. Local authorities may need to procure services, supplies or works at short notice if urgent needs arise or existing suppliers are unable to meet their responsibilities. They will need to be familiar with the powers provided in legislation and their own constitutions for urgent procurement. The Government has issued helpful guidance on the ability to procure quickly
  •  
  • State aid. Local authorities need to ensure that any transactions they have with economic undertakings are compliant with State aid. In the context of the coronavirus pandemic, the European Commission has published details of actions that may be taken by public sector authorities that it considers to be outside the scope of state aid control. Local authorities will however still need to be alert to the potential State aid implications for any of their actions.
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  • Meeting statutory obligations. The impact of the pandemic on the availability of workers, access to resources and ability to travel could put pressure on the ability of local authorities to comply with their statutory duties.
  •  
  • Personal duties of statutory officers. A local authority’s monitoring officer and chief finance officer have duties which must be discharged personally or by a nominated deputy if they are unable to act due to absence or illness. In view of the inevitability that some officers may be affected by illness or self-isolation, officers with personal responsibilities should consider whether they need to designate a deputy if they have not already done so.
  •  
  • The responsibilities of local authorities as owners, landlords and tenants of properties. As with any owner or occupier who controls a building, local authorities will be obliged to comply with any relevant legislation, such as health and safety. The particular responsibilities of local authorities and the services that they provide may mean that the persons who use their buildings have particular vulnerabilities.
  •  
  • We are already talking to local authorities who have leased their premises and now find themselves faced with requests by tenants for rent concessions in these difficult times. This of course raises the potential for State aid.
  •  
  • Tenants in difficulty may wish to argue that leases have been frustrated if they are unable to use those buildings because of the pandemic. It is a hard task to prove that a lease has been frustrated but these are exceptional times and there is some case law on this point.

If you are responsible for any of these issues and have any concerns relating to the legal implications for the public sector arising from the coronavirus then please contact the following members of the Geldards Public Sector Team.

RELATED:   CENTRAL, DEVOLVED & LOCAL GOVERNMENT


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