Allotments: guidance for local authorities
Guidance on certain sections of Part 9 of the Community Empowerment (Scotland) Act 2015: Allotments.
8. Section 123 – Delegation of management of allotment sites
8.1 Section 123 allows a local authority to agree to a request to delegate certain functions under Part 9 of the 2015 Act to a person (usually an allotment association) who represents the interests of all or the majority of the tenants of the allotments on a particular site. The functions that the 2015 Act permits to be delegated are clearly described in section 123(3).
8.2 Procedural requirements in relation to the content and processing of such requests are set out in subsections (4) to (9). Subsection (10) provides that the local authority has the power to recall any of the functions it has delegated under section 123 in cases where the local authority considers that the person to whom they have delegated functions is not carrying out those functions satisfactorily or where there is a disagreement between this person and the local authority. It is also set out in subsection (11) that, where the local authority is leasing an allotment site from another person, any delegation of its functions must not contravene the head-lease.
8.3 Functions of a local authority can only be delegated under section 123 to the extent of the functions listed in section 123(3). The functions of a local authority under the Act cannot be delegated under section 123 if delegation of the function(s) has not been requested.
8.4 Delegation of functions is not a substitute for local authority duties regarding the management of allotment sites and waiting lists. Local authorities will retain overall responsibility for the allotment site and waiting list even if certain functions are delegated.
8.5 Local authorities are expected to consider each application on its merits, and consider how each person or body requesting delegation intends to fulfil their obligations under the relevant section of the Act. It is for the local authority to be satisfied that the person or body requesting delegation is able to fulfil the role in order to agree to the delegation request.
8.6 The local authority should be satisfied that the person or body requesting delegation does indeed represent the interests of all or the majority of tenants on the allotment site, and that the tenants of the site for which delegation is requested are aware of that delegation request and of the outcome. The local authority should have regard to the views of the allotment tenants in order to be satisfied that the person or body requesting delegation does indeed represent the interests of all or the majority of tenants on the allotment site.
8.7 It would be prudent for local authorities to ensure that the person or body requesting delegation fully understands its responsibilities, liabilities, risks and the legal implications that might come with delegation of the requested function(s). Local authorities should advise the applicant to seek independent legal advice, including from appropriately qualified third sector organisations, on the matter. The person or body seeking delegation of functions may also be advised to seek legal advice about the most appropriate form of legal organisation for them (e.g. whether it should incorporate as a company or other body), a consideration that may be relevant if personal liability is incurred in the event of a dispute or incident.
8.8 The local authority should prepare formal documentation setting out the responsibilities of both sides should a request for delegation of certain functions be granted. The documentation should be understood and agreed by all parties.
8.9 If an authority agrees to delegate functions to a person, consideration should be given as to whether a reduction in rent might be warranted. This is a matter for the individual local authority.
8.10 The local authority has the right to refuse the request and should consider doing so if it is not satisfied that the person or body requesting delegation will fulfil the requirements of the delegation effectively.
8.11 Local authorities should monitor the operation of delegated functions. The local authority should ensure that the delegated person or body is aware of the authority’s existing complaints procedure, should there be a material disagreement between the local authority and the delegated person or body about the carrying out of the functions.
8.12 If tenants on an allotment site in relation to which certain functions have been delegated express their dissatisfaction to the local authority regarding how the delegated management of functions is being carried out, the local authority should investigate those concerns in accordance with their local complaints process.
8.13 The local authority may wish to consider whether there is value in providing training to those who have requested delegation, or to those who are to be granted delegation, in relation to certain site management functions. Should the local authority determine that this would be of value, the local authority should consider whether training could be funded under powers set out in the Local Government (Scotland) Act 1973 or the Local Government in Scotland Act 2003.
8.14 As set out in paragraph 2.16 above, local authorities as data controllers in their own right will have regard to data protection laws when considering delegating certain functions, such as section 111 (duty to maintain list).
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