Consultation on the Community Empowerment (Scotland) Bill

Consultation on the Community Empowerment (Scotland) Bill

Response Questionnaire

Chapter 3 - Proposals with draft legislation

Please read the draft Bill provisions before you answer these questions. You do not need to answer all the questions in this questionnaire, only answer the questions that you have an interest in. Separate questionnaires are provided for each chapter of the consultation paper.

Please make sure you also return the Respondent Information Form with your response, so that we know how to handle it.

3.1Community Right to Request Rights in Relation to Property

Please read Part 1 of the draft Bill (Annex C pages 1 to 9) before you answer these questions:

Q1Do you agree with the definition of community body at section 1?

Yes No 

Do you have any changes to suggest?

Section 1 (2) allows an unincorporated body to be designated as a community body under Section 1(a). Consideration should be given to remove unincorporated bodies from the list as it would be inappropriate to transfer assets to a “club” or “group” managed by a committee. It would be more appropriate to insist that requests only be allowed from incorporated bodies.
Section 1 (5) (f) allow property to be returned on winding up ofa community body and this is of concern to the Council. The liabilities are not defined and could be considerable if the property is leased or in a bad state of repair. Consideration should be given to allow the Council to assess the position, limit their liability and recover where necessary.
There is a risk to the public sectors ability to address some key challenges e.g. heath inequalities by disinvesting in some communities to invest in communities of greater need. This would also apply to new emerging communities resulting from the growth and planned future growth of the population in the area. If several community interest groups wish to apply for rights for the same property, how would the public sector manage and assess this?

Q2Do you agree with the list of public bodies to be covered in this Part at Schedule 1 (Annex C page 21)?

Yes  No

What other bodies should be added, or removed?

Scottish Prison Service to be added.
Criminal Justice Partnerships to be added.

Q3What do you think would be reasonable timescales for dealing with requests, making an offer and concluding a contract, in relation to sections 5(6), 6(2)(c) and 6(6)?

The Bill P161-5(6) – states that regulations will set out the prescribed period for advising applicants of decisions so we cannot comment on the reasonableness of the timescale. However, we note there will be a provision to allow for the parties to agree an extended timescale, in the event that there is a delay.

Q4Do you agree that community bodies should have a right of appeal to Ministers as set out in section 8?

Yes No 

Are there other appeal or review procedures that you feel would be more appropriate?

No additional comments.

Q5What form of appeal or review processes, internal or external, would be appropriate in relation to decisions made by local authorities and by Scottish Ministers?

At this point it is difficult to determine in the absence of any sense of scope of activity.The local authority will need to develop a scheme and policies in response to the Bill which will need to consider how appeals will be dealt with. There are a number of options including within council committee procedures and the CPP Board could be used as a review mechanism. It would be important that appeal processes and decisions remain within governance of the local authority and CPPs regarding local assets.
It would be useful to insert a “sunset” clause where national and local government could review the volume of appeal actions and then determine whether there is a need for an independent external approach.

Q6Do you have any other comments about the wording of the draft provisions?

This Bill does set out relevant factors which should be taken into consideration when making a decision, which is helpful. However, it indicates that Minster’s may specify in regulation the procedures to be followed by a relevant authority in relation to requests and information to be involved in requests. We would encourage that Ministers ensure that such regulations are issued before all authorities start designing their internal procedures.
In relation to the disposal of land, whilst appreciating the right to prevent sale during the period of contact it is important that the local authority and other authorities affected retains the right to access land in order to carry out what may be required in order to sell post expiry of the contact if transfer is not permanent.
It is important to note that capital assets are actively managed in the public sector. The need to move away from property based assets to equipment and additional investment in IT systems to support a transformation in service delivery (e.g. home based care) is a key element of our SOA and partners strategic plans. If the public sector organisations are not able to reinvest capital by selling property assets to allow investment in other assets it is difficult to imagine how we will invest to deliver our future strategy.
If a community registers a RTB, but then does nothing with it, what right does the public authority have to change their decision? The public sector authority could be left with liability over a period of time, as it presently stands, there is no right to revoke their earlier decision.
Land valuation may be better achieved through a joint valuation from a pool of suitably qualified agents or the District Valuer.
The Bill refers to the ‘public interest’, would this be determined locally and would there be further guidance on what constitutes this?
Public sector bodies are organisations with complex organisational structures, which use many partner organisations. Would the provisions extend to land / buildings that are leased to arms length organisations? Would the existence of a lease / licence to occupy be a barrier to land / buildings being included?
The Scottish Government should clearly set out what happens if the community body disbands.

Q7What costs and savings do you think would come about as a result of these draft provisions? Please be as specific as you can.

It is difficult to determine the overall costs and savings arising from the Bill as it depends on the extent of the transfer activity. There will be costs associated to the management and administration of some measures e.g. assessment of asset transfer and appeal processes.
Partners are concerned that community groups may be unaware of the ownership of various public sector properties and that the administrative burden will largely fall to the local authority. This will lead to work load increase and the local authority may be held unfairly accountable for delays in timescales for processing requests. Ministers should consider the costs involved in making the ownership of all public sector assets transparent and easily identifiable for communities.
The costs and savings arising from the bill will vary on a property to property basis. From a local authority perspective there is the potential to reduce the level of backlog maintenance in relation properties in need of repair and upgrading and potentially reduce running costs across the portfolio.
Costs will be incurred in managing assets whilst going through the process to transfer to community ownership which may be longer than normal disposal methods. This will include utilities/ security, threat of vandalism/ asset stripping etc. There are also concerns about the potential for speculative applications or bids that use up authorities time to undertake due process where a business case has not been robustly developed.
Local authorities are also likely to incur additional costs in assessing bids and supporting communities through the handover process. This will include resources within legal departments, asset management and services.
Appropriate post legislation scrutiny would determine how accurate the cost estimates and potential savings have been.
One of the obvious benefits will be if land / or a building is not in use or sought by the market is taken over by a community and used for social benefit purposes.This assumes the group will not then seek revenue funding for the project from the public body. If community organisations can lever in resources e.g. from grants etc to purchase a property then the public sector organisation would also still realise the capital receipt on property that is in market demand.

3.2 Community Right to Request to Participate in Processes to Improve Outcomes of Service Delivery

Please read Part 2 of the draft Bill (Annex C pages 9 to 14) before you answer these questions:

Q8Do you agree with the definition of community body at section 11?

Yes  No

Do you have any changes to suggest?

No further comment.

Q9Do you agree with the list of public bodies to be covered in this Part at Schedule 2 (Annex C page 21)?

Yes No

What other bodies should be added, or removed?

No further comment.

Q10Do you agree with the description at section 13 of what a participation request by a community body to a public service authority should cover?

YesNo

Is there anything you would add or remove?

The explanatory notes to the Bill suggest that the request should include the identification of outcomes to be improved as a result of the proposal.
The Scottish Government have directed public bodies and CPPs to ensure evidence based approaches to outcomes and improvement methodologies. Any request from the community needs to adhere to the same evidence based approach and standard. In our view the request should be a request to engage in the improvement approach of the body which would involve suggestions for improvement being considered as long as a appropriate improvement reasons can be developed.

Q11Do you agree with the criteria at section 15 that a public service authority should use when deciding whether to agree or refuse a participation request?

Yes No

Are there any other criteria that should be considered?

Section 15(3)(c) should also include “best value” and “public service efficiency”.

Q12Do you have any other comments about the wording of the draft provisions?

Whilst fully supporting the present requirements for engagement, partners have raised significant concerns about the above. The number of requests that could be submitted from communities of special interest, self-help groups, geographical communities, over individual diseases, conditions or disabilities or over general distribution of services and access is too great to estimate. Resulting in many hours of service planning time being diverted from the delivery of the agreed joint strategic plans. As there will be a requirement for the new health and social care partnerships to publish joint strategic plans for all adult services, with consultation and engagement built into this, it would seem more important to ensure the processes for engagement are robust, and that there is a system of appeal should an interest feel overlooked. This 'right' has the potential to completely arrest all service development.
It is also important that the Bill acknowledges the timescales within which improved outcomes can be delivered e.g. improving public health and tackling health inequalities.
As with the rights with regard to property, some communities shall be in a far stronger position to initiate and lead discussions than communities of deprivation. This in turn could lead to greater inequality if capacity building is not sufficiently supported in such areas.
Whilst wefully accept the government’s right to prescribe the external governance framework for public bodies we think it is inappropriate for legislation to prescribe the elements of internal governance framework which should be the responsibility of the local bodies. We would strongly advise against government and the Bill regulations providing any instructions.

Q13What costs and savings do you think would come about as a result of these draft provisions? Please be as specific as you can.

Please refer to response provided under question 7.

3.3Increasing Transparency about Common Good

Please read Part 3 of the draft Bill (Annex C pages 14 to 16) before you answer this question:

Q14Do you think the draft provisions will meet our goal to increase transparency about the existence, use and disposal of common good assets and to increase community involvement in decisions taken about their identification, use and disposal?

Yes No

What other measures would help to achieve that?

Part 3 of the Bill could be further strengthened by including a definition of “alienable” and “inalienable” common good assets and also have these designated/detailed in the register.
Based on the figures supplied, Aberdeen City Council’s Common Good makes up approximately 1/3 of the total assets. Therefore the city has one of the most substantial Common Good assets to register. Therefore, when selling land, a detailed review of every title, which dates back centauries would be cost prohibited.
The maintenance of an asset register is a positive provision and should have regard to the practicalities of being responsible for land that has been in public ownership for centuries.
The Bill refers to consultation when establishing the register; it is unclear what the consultation would be about at this stage.

3.4Defective and Dangerous Buildings – Recovery of Expenses

Please read Part 4 of the draft Bill (Annex C pages 17 to 19) before you answer these questions:

Q15Do you agree that the cost recovery powers in relation to dangerous and defective buildings should be improved as set out in the draft Bill?

Yes  No

Q16Do you agree that the same improvements should apply to sections 25, 26 and 27 of the Building (Scotland) Act 2003?

Yes  No

ADDITIONAL COMMENT

Aberdeen City Council is concerned about the continuing practice of regulations not being presented at the same time as primary legislation. This makes it difficult to assess and fully comment on the costs and benefits of proposals set out in the draft Bill.
It is also important that the Bill focuses on direction in relation to external governance and continues to acknowledge that the role to direct internal governance remain within the sole authority of public bodies and CPP partners.