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The Local Government in Scotland Act 2003
Power to Advance Well-Being Guidance
CHAPTER 2: POWER TO ADVANCE WELL-BEING
How does it work?
2.1 Local authorities need to have the necessary statutory powers to enable them to be more responsive to the needs of the people they serve. Before the Act came into force, local authorities could do only those things that they were empowered to do by specific statutory powers, duties and functions. This created a degree of uncertainty over the extent of the 'enabling' powers which local authorities had. While this legal framework was sufficient to allow local authorities to deliver a range of services, it constrained them from developing a broader and more innovative role. Local authorities had to check whether legislation explicitly enabled them to engage in a particular activity.
2.2 The power to advance well-being has been provided to encourage innovation and closer partnership working between local authorities and other bodies in better responding to the needs of communities. The new power is wide-ranging and enables local authorities to do anything that they consider is likely to promote or improve the well-being of their area and/or persons in it.
2.3 The breadth of the power is such that local authorities should regard it as a "power of first resort" when they are in any doubt about whether existing powers would enable them to take a particular course of action or deliver a particular service. That is, rather than searching for a specific power elsewhere in statute in order to take a particular action, the Scottish Executive encourages local authorities to look to the new power in the first instance in taking forward measures likely to promote and improve well-being.
2.4 Local authorities will however still need to check that what they intend to do under this power is in accordance with the law more generally. Relevant legal issues may include, for example:
- law of contract;
- relevant EU treaty obligations, directives and regulations which apply to procurement and state aided activity;
- current UK legislation that extends to Scotland, such as the Competition Act 1988, the Companies Acts, disability discrimination, human rights, data protection and employment legislation;
- vulnerability to judicial review;
- principles of natural justice; and
- other legislation relevant to local authorities.
2.5 There is a continuing need for local authorities to be openly accountable for their stewardship of public funds, and this is accentuated by the relaxation in the statutory restrictions on their ability to incur expenditure which the power represents. Decisions to commit funds under this power need to be transparent and need to reflect good practice in assessing options. As with other statutory functions the use of the power will be subject to audit by local authority auditors appointed by the Accounts Commission. If the Controller of Audit finds that there has been a contravention of the law, or a loss due to negligence or misconduct, he may make a report to the Accounts Commission which may apply sanctions to officers or members who are responsible.
2.6 Councils will wish to take account of other guidance when appropriate. For example, when deciding to fund arms-length bodies they should follow the Code on "Following the Public Pound" issued jointly by the Accounts Commission and CoSLA.
Possible uses
2.7 It should be stressed that the following are illustrative examples and should not be read as limiting potential use of the power.
2.8 Local authorities will wish to consider how the power might be used to pursue activities that contribute to achieving Community Planning objectives, other cross-cutting issues and shared priorities, national priorities, and overarching policies, which promote and improve well-being. These might be policies and programmes that wholly or in part, will close gaps in opportunity or outcomes for disadvantaged groups of people or geographical areas. Uses might include activities relating to:
- Enhancing local service delivery;
- Promoting sustainable development;
- Tackling climate change;
- Improving mental, social and physical health;
- Tackling poverty and deprivation;
- Promoting financial inclusion in disadvantaged communities;
- Reducing inequalities and promoting equalities;
- Encouraging participation and community capacity building;
- Improving and conserving the quality of the local environment;
- Promoting local culture and heritage;
- Protecting, enhancing and promoting biodiversity;
- Promoting economic development; or
- Improving Community Safety.
What the Act does
2.9 Section 20(1) of the Act gives a local authority the power to do anything that it considers is likely to promote or improve the well-being of its area and persons within that area, or either of those. It is for the local authority to decide whether any particular action would be likely to promote or improve the well-being of its area and/or persons in it.
2.10 Specific examples of the kind of action that can be taken are set out in
section 20(2) of the Act which states that the power to advance well-being includes power to:
(a) Incur expenditure;
(b) Give financial assistance to any person;
(c) Enter into arrangements or agreements with any person;
(d) Co-operate with, or facilitate or co-ordinate the activities of, any person;
(e) Exercise on behalf of any person any functions of that person, and
(f) Provide staff, goods, materials, facilities, services or property to any person.
2.11 Items (a) and (b) make it clear that local authorities can regard the power to advance well-being as including a broad spending power. When undertaking any activity in pursuit of promoting or improving well-being, the power to advance well-being enables local authorities to incur expenditure, and specifically identifies the provision of financial assistance (item (b)) as one means of doing so. Local authorities are able to fund the activities of different groups and bodies, if they consider that this expenditure is likely to promote or improve the well-being of their area or persons in it. Such financial assistance may be given by any means local authorities consider appropriate, including by way of grants, loans, guarantees or indemnities as elements of financial packages, or contributions in cash or kind.
2.12 Items (c) and (d) provide local authorities with powers to make arrangements or agreements with any person and to allow them to co-operate with, or facilitate or co-ordinate the activities of any person. Again it is for local authorities to consider what such arrangements or agreements might be and whether they would be likely to advance well-being, but an example might be the formation of or participation in companies or any other form of association or vehicle for joint working. The power to advance well-being could also help to support local authorities' efforts in working with Community Planning partners to provide better, more joined-up services to their communities. It is anticipated that other Community Planning partners will respond positively to these flexibilities within the scope afforded to them and to identify any residual legislative barriers to achieving joint objectives and best value.
2.13 Item (e) makes clear that the power to advance well-being enables local authorities to deliver services that fall within the responsibility of other service providers. This does not transfer statutory responsibility or accountability for that function, but gives greater scope for local authorities and their Community Planning partners to determine how best to discharge their functions in light of local needs and circumstances. For example, the Community Care and Health (Scotland) Act 2002 sets out specific arrangements for joint working, delegation of functions and pooled budgeting for joint working in community care. This power is obviously more extensive. Item (f) makes clear that, in addition to providing financial assistance, local authorities can also provide other forms of assistance including staff, goods, materials, facilities, services and property. In other words, they can make such a contribution 'in kind', although where such contributions relate to an agreement entered into in relation to a trading operation (as defined under proper accounting practice) the terms of the Local Authority (Goods and Services) Act 1970 apply.
2.14 "Person" in the context of items (b) to (f) means any legal person and would include bodies corporate and unincorporated associations - for example, voluntary organisations. The term "person" is defined as such in Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379).
Who should benefit
2.15 Section 20(3) provides that the power of well-being may be exercised in relation to, or for the benefit of:
- The whole or any part of a local authority area;
- All or some of the persons within that area.
2.16 The Act has been drafted in this way to provide flexibility. The power may be exercised in relation to particular groups of people within a community - for example, minority ethnic communities, women, men, older people, young people and children, and people with a physical disability or with mental health needs, the business community etc. "Persons within that area" may include persons resident in that area or who are otherwise present in the area, for example tourists and commuters.
2.17 In considering the needs of such groups, local authorities will need to consider their obligation under Section 59 of the Act to discharge the power to advance well-being in a manner which encourages equal opportunities and, in particular, observance of the equal opportunities requirements.
2.18 Section 20(4) allows a local authority to use the power to advance well-being outwith its area if it considers that doing so is likely to promote or improve the well-being of its area and persons within it.
2.19 In exercising the power outwith its area, the Scottish Ministers would expect a local authority to consult the local authority (or local authorities) and other relevant bodies in the area where they are proposing to take action under the power to advance well-being, although there need not be disproportionate consultation in relation to minor matters.
Exercise of the power by joint fire boards, joint police boards and unitary fire and police authorities
2.20 The Act grants the power to advance well-being to local authority joint fire boards and joint police boards, as well as to Dumfries and Galloway and Fife councils in their capacity as fire and police authorities. Joint boards are specifically mentioned in the Act in order to ensure that they, as well as the "unitary" authorities, can make use of the flexibility provided by the power and, in particular, to ensure that they can participate fully with other partners in joint Community Planning initiatives. However, when considering their uses of the power, joint fire boards, joint police boards and unitary fire and police authorities should interpret "well-being" in a narrower sense, in relation to their own specific duties in respect of fire services and policing respectively. It is not expected that a joint fire board, joint police board or a unitary fire or police authority would commit resources to an initiative in support of an aspect of well-being which is not related to its primary purposes. The width of the power does, however, allow the joint boards and unitary authorities substantial discretion with which to judge whether activities are related to their primary roles or not.
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