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The Case Tribunals (England) Regulations 2008

S.I. 2008/2938 · Made 13 November 2008 · Extends to England and Wales

Up to date with all changes known to legislation.gov.uk, revised to 18 January 2010.

Local Government, England

Made 13th November 2008

Laid before Parliament 18th November 2008

Coming into force 12th December 2008

The Secretary of State for Communities and Local Government, having consulted the Administrative Justice and Tribunals Council in accordance with section 44 of, and paragraph 24(1) of Schedule 7 to, the Tribunals Courts and Enforcement Act 2007f1, in exercise of the powers conferred by sections 64(7), 65(4A), 77(2) and (6), 78A(4), (5), (7) and (8) and 105(2) of the Local Government Act 2000f2 makes the following Regulations:

Annotations to the whole text

Footnotes

f1

2007 c. 15. Case tribunals and interim case tribunals constituted under section 76 of the Local Government Act 2000 (c. 22) are listed tribunals for the purposes of paragraph 24(1) of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 by virtue of article 2 of the Administrative Justice and Tribunals Council (Listed Tribunals) Order 2007 (SI 2007/2951).

f2

2000 c.22. Section 64(7) was inserted by section 192(5) of the Local Government and Public Involvement in Health Act 2007 (c. 28); section 65(4A) was inserted by section 192(8) of that Act; and section 78A was inserted by section 198 of that Act.

Contents

  1. 1Citation, commencement and application
  2. 2Interpretation
  3. 3Sanctions available to First-tier Tribunal
  4. 4Notices
  5. 5Withdrawal of references by ethical standards officer
  6. Signature
  7. Explanatory note

1Citation, commencement and applicationI1

(1)

These Regulations may be cited as the Case Tribunals (England) Regulations 2008 and shall come into force on 12th December 2008.

(2)

These Regulations apply in relation to England.

2InterpretationI1

In these Regulations—

  • “the Act” means the Local Government Act 2000;

  • F1...

  • “any relevant authority concerned” means any relevant authorityf1 in England of which a respondent is a member or co-opted member;

  • F2...

  • “ethical standards officer” means an ethical standards officer appointed under section 57(5)(a) of the Act;

  • “respondent” means a person who is the subject of the investigation which gave rise to the reference to the F3First-tier Tribunal under section 64(3) or 65(4) of the Act, or regulations made under section 66 of the Act; and

  • “the relevant authority concerned” means the authority of which a respondent is a member or co-opted member and with whose code of conduct the respondent is alleged to have failed or, in the opinion of F4the First-tier Tribunal, has failed to comply.

3Sanctions available to First-tier TribunalF4I1

(1)

If F1the First-tier Tribunal makes a decision under section 78A(4) of the Act in respect of a respondent, other than a decision to take no action, it may, subject to paragraphs (2) and (3), impose any one of, or any combination of, the following sanctions—

(a)

censure of the respondent;

(b)

restriction for a period not exceeding 12 months of the respondent’s access to the premises of, or the respondent’s use of the resources of, the relevant authority concerned, or any relevant authority concerned, provided that any such restriction—

(i)

is reasonable and proportionate to the nature of the failure to comply with the authority’s code of conduct; and

(ii)

does not unduly restrict the respondent’s ability to perform the functions of a member;

(c)

partial suspensionf1 of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months;

(d)

suspension of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months;

(e)

a requirement that the respondent submit a written apology in a form specified by F2the First-tier Tribunal;

(f)

a requirement that the respondent undertake such training or participate in such conciliation as the First-tier Tribunal specifies;

(g)

partial suspension of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months or until such time as the respondent submits a written apology in a form specified by the First-tier Tribunal;

(h)

partial suspension of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months or until such time as the respondent has undertaken such training or participated in such conciliation as the First-tier Tribunal specifies;

(i)

suspension of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months or until such time as the respondent has submitted a written apology in a form specified by the First-tier Tribunal;

(j)

suspension of the respondent from the relevant authority concerned, or any relevant authority concerned, for a period not exceeding 12 months or until such time as the respondent has undertaken such training or participated in such conciliation as the First-tier Tribunal specifies; or

(k)

disqualification of the respondent for being, or becoming (whether by election or otherwise) a member of the relevant authority concerned, or any other relevant authority, for a period not exceeding 5 years.

(2)

If F3the First-tier Tribunal imposes a sanction under paragraph (1)(c) or (d) or any of the sub-paragraphs from (g) to (j), the period for which the respondent is suspended or partially suspended must not exceed the remainder of the respondent’s term of office.

(3)

If the First-tier Tribunal makes a decision under section 78A(4) of the Act, other than a decision to take no action, in respect of a respondent who has ceased to be a member of any relevant authority at the date on which it makes the decision, it may only impose a sanction under either paragraph (1)(a) or (1)(k).

4NoticesI1

(1)

Where F1the First-tier Tribunal makes a decision under section 78A(4) of the Act it must give a notice to the standards committee of any relevant authority concerned, and may give a copy of that notice to the standards committee of any other relevant authority of which the respondent has been a member or co-opted member.

(2)

The notice specified in paragraph (1) must—

(a)

state that F2the First tier-Tribunal has decided that the respondent has failed to comply with the code of conduct of a relevant authority;

(b)

specify the details of that failure;

(c)

specify whether F3the First tier-Tribunal has decided to impose a sanction under regulation 3(1), and if so what that sanction is;

(d)

specify the date from which any sanction is to take effect; and

(e)

state that the respondent may, by virtue of section 78B(4) of the Act F4and section 11 of the Tribunals, Courts and Enforcement Act 2007, seek permission to appeal to the Upper Tribunal against the decision, or any other decision of F5the First tier-Tribunal which relates to the respondent.

(3)

Subject to paragraph (4) where a notice given under paragraph (1) specifies any sanction under regulation 3(1) the notice shall have the effect of bringing the sanction into force on the date specified in the notice.

F6(4)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5Withdrawal of references by ethical standards officerI1

(1)

F1Subject to any provision in Tribunal Procedure Rules relating to the withdrawal of proceedings, an ethical standards officer who has referred a matter to the F2First-tier Tribunal under section 64(3)(b) or 65(4) of the Act may withdraw that reference if—

(a)

the circumstances are as mentioned in any of sub-paragraphs (a) to (c) of paragraph (2); and

(b)

the requirements of F3paragraph (3) of this regulation are satisfied.

(2)
(a)

A sentence of imprisonment (whether suspended or not) for a period of not less than three months, without the option of a fine, has been passed on the respondent.

(b)

The ethical standards officer is satisfied—

(i)

that the matter is materially less serious than appeared to be the case when it was referred to the F4First-tier Tribunal and that as a consequence is not sufficiently serious to be determined by F5the First-tier Tribunal or a standards committee; or

(ii)

that the pursuit of the matter would not be in the public interest.

(c)

The F6First-tier Tribunal invites the ethical standards officer to withdraw the reference.

(3)

Except in a case where the First-tier Tribunal agrees to dispense with the requirement in this paragraph, the ethical standards officer—

(a)

has given 28 days notice in writing to—

(i)

the person who made the written allegation under section 57A of the Act which gave rise to the investigation;

(ii)

the respondent;

(iii)

the standards committee of any relevant authority concerned; and

(iv)

the monitoring officer of any relevant authority concerned,

that a request is to be made to the F7First-tier Tribunal to withdraw the reference, and

(b)

has considered any representations received from any person in that regard.

F8(4)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)

The F9First-tier Tribunal shall give reasons in writing for the giving of an invitation under paragraph (2)(c) F10....

(6)

Where a reference to the president of the Adjudication Panel is withdrawn under this regulation, the ethical standards officer shall give to each person or body to whom notice was given under paragraph (3)(a)—

(a)

written notice of the withdrawal; and

F11(b)

any written reasons given by the First-tier Tribunal in relation to the withdrawal, including any written reasons given under paragraph (5).

Signature

Signed by authority of the Secretary of State for Communities and Local Government

John Healey

Minister of State

Department for Communities and Local Government

13th November 2008

Explanatory note

(This note is not part of the Regulations)

Tribunals drawn from the Adjudication Panel for England, known as “case tribunals” consider matters referred to them in order to determine whether members and co-opted members (or former members or co-opted members) of relevant authorities in England have failed to comply with an authority’s code of conduct, and if so whether any sanction should be imposed.

Regulation 3(1) makes provision as to the sanctions which are available to a case tribunal when it has decided that a person has failed to comply with an authority’s code of conduct and that a sanction should be imposed. The sanctions specified in paragraphs (1)(b) to (d) and (g) to (j) of that regulation may have effect in respect of any relevant authority in England of which the person is a member or co-opted member. Paragraph (1)(k) enables a case tribunal to disqualify a person, for a period not exceeding five years, for being or becoming a member or co-opted member of the relevant authority with whose code of conduct that person has failed to comply, or any other relevant authority in England and Wales.

Regulation 4 makes provision as to the content and effect of notices served on standards committees by case tribunals.

Regulation 5 makes provision as to the circumstances in which references of matters by an ethical standards officer to the president of the Adjudication Panel for England for adjudication by a case tribunal or interim case tribunal may be withdrawn, and the procedure for so doing.