Office of Public Sector Information

EXPLANATORY NOTE

(This note is not part of the Regulations)

Orders under section 7 of the Local Government and Public Involvement in Health Act 2007 (“the 2007 Act”) give effect to proposals for changes to the structure of local government. In particular, they provide for there to be a single tier of local government for the areas to which they relate. There is a single tier of local government for an area if there is a county council and no district councils or if there is a district council and no county council.

The first orders to be made under section 7 of the 2007 Act provide for the establishment of single tiers of local government in Bedfordshire, Cheshire, Cornwall, County Durham, Northumberland, Shropshire and Wiltshire on 1st April 2009 (S.I.s 2008/907, 634, 491, 493, 494, 492 and 490, respectively). In Cornwall, County Durham, Northumberland, Shropshire and Wiltshire, the existing county council continues after 31st March 2009 as the single tier council for the county. In Bedfordshire, the county council is wound up and dissolved. Bedford Borough Council continues as the single tier council for the borough of Bedford and a new Central Bedfordshire Council (a district council) becomes the single tier council for the rest of the county. In Cheshire, the county council is superseded by two new district councils, Cheshire East, and Cheshire West and Chester, which become single tier councils for their respective areas.

These Regulations, which are of general application, supplement those orders and any orders that may be made in the future under section 7 of the 2007 Act.

Section 14(3) of the 2007 Act provides for regulations under section 14 to have effect subject to any provision included in an order under section 7 or 10. Additionally, regulation 1(2) provides for these Regulations to have effect subject to any provision included in—

(a) other regulations under Chapter 1 of Part 1 of the 2007 Act (which may make provision for the transfer of specific functions, property, rights and liabilities between authorities affected by orders under section 7),

(b) an order under section 20 of the 2007 Act (which, so far as relevant to these Regulations, enables mistakes in section 7 orders to be corrected if they cannot be corrected by the making of amending orders under that section),

(c) an order under section 86 of the 2007 Act or regulations under section 97 of the 2007 Act or an order under Part 2 of the Local Government and Rating Act 1997 (transfers relevant to parish councils), or

(d) regulations under section 7 of the Superannuation Act 1972 (relevant to pension schemes of local government employees).

Regulation 1(2) also provides that these Regulations do not affect transfers of property, rights or liabilities made by agreement under section 16 of the Local Government and Public Involvement in Health Act 2007 (agreements between councils about incidental matters).

Regulation 2 contains definitions, including that of “the reorganisation date” which, in relation to a predecessor council and an order under section 7 of the 2007 Act, means the date specified in the order as that on which the council is to be wound up and dissolved.

Regulation 3 contains provisions relevant to the supply of information by a local authority which is to be wound up and dissolved (a “predecessor council”) to the appropriate single tier council (a “successor council”).

Regulations 4 and 5 make provision for the transfer of functions from a predecessor council. (In this context, “functions” means the powers and duties exercisable by a predecessor council immediately before the reorganisation date.) Where the predecessor council is succeeded by only one successor council, all of its functions transfer to that council on the reorganisation date. Where there is more than one successor council for a predecessor council’s area, most of the predecessor council’s functions transfer on the reorganisation date to the successor councils and become exercisable by each of them independently of the other or others. A function of a predecessor council that relates to a particular part of its area, for example, a function conferred by a local Act, will transfer to the successor council whose area consists of or includes that part.

In Part 3 of the Regulations, regulation 6(1) contains definitions relevant to that Part and regulation 6(2) makes clear that regulations 9 to 13 do not apply to transfers of property, rights and liabilities under regulation 7.

Regulation 7 makes provision for the transfer of property, rights and liabilities where a predecessor council is to be succeeded by only one successor council.

Regulation 8 makes provision for the transfer of property, rights and liabilities where a predecessor council is succeeded by more than one successor council.

Paragraph (1) of regulation 8 provides that property of a predecessor council that is held exclusively for charitable purposes is to transfer in accordance with regulation 9, and that property in the form of a predecessor council’s financial reserves (defined in regulation 6) is to transfer in accordance with regulation 10. Other property, rights and liabilities of a predecessor council are to transfer to a “caretaker” council in accordance with regulation 13 unless—

(a) they are the subject of an agreement under section 16 of the 2007 Act or of the arbitrator’s award in the arbitration of a disputed matter under subsection (3) of that section made before the reorganisation date (in which case they will transfer in accordance with the agreement or the award); or

(b) other regulations under section 14 of the Act provide for their transfer.

Where regulation 13 applies with respect to some of a predecessor council’s property, rights or liabilities that is a disputed matter within the meaning of section 16(3) of the 2007 Act, it does so only until the matter is the subject of a default award.

Regulations 11 and 12 contain provisions relevant to agreements under section 16 of the 2007 Act.

Regulation 13 deals with the situation where there is more than one successor council in relation to a predecessor council and, by the date that falls three months before the reorganisation date, the successor councils have not been able to reach agreement under section 16 of the 2007 Act as to which of them should take particular property, rights or liabilities of the predecessor council (“residual matters”). The Secretary of State is required to nominate one or more of the successor councils as a “caretaker” council, with the consequence that, if agreement under section 16 has not been reached by the reorganisation date, residual matters will transfer on that date to the caretaker council. Where the Secretary of State nominates more than one of the successor councils as the caretaker councils, he is required to indicate the particular residual matters, or the classes or descriptions of residual matters, that are to transfer to a particular caretaker council. Each caretaker council is required to hold the particular residual matters, or residual matters of the specified classes or descriptions, on trust for itself and the other successor council(s) concerned until a decision has been made as to which of the successor councils should take them.

In Part 4 of the Regulations, regulation 14 requires a council to which land has been transferred and which has been identified by the successor councils concerned as surplus to their requirements to dispose of it. The net proceeds or net deficits are to be shared among or borne by the successor councils concerned.

Regulation 15 provides for the “caretaker” council to recover part of its expenditure from the other successor council(s) concerned or, as the circumstances require, to distribute part of any surplus attributable to its management of the property, rights and liabilities for which it is the “caretaker”.

Regulation 16 deals with access to records.

In Part 5, regulation 17 provides for the resolution of disputes as to the interpretation or application of provisions of the Regulations.