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ITEM EX12

EXECUTIVE – 7 APRIL 2004

GOVERNANCE ARRANGEMENTS FOR THE SUPPORTING PEOPLE PROGRAMME

Report by Solicitor to the Council

1. On 14 January 2004 the Executive approved and adopted the Memorandum of Understanding between the County Council as the Administering Authority on the one hand and the Supporting People Commissioning Body on the other, as a basis for the future working of the Commissioning Body and Administering Authority.

Memorandum of Understanding - Indemnity Provision

2. Subsequently, Cherwell District Council, one of the parties to the Commissioning Body, requested a change to clause 17.1 of the Memorandum which, as slightly modified by South Oxfordshire District Council (also a party to the Commissioning Body) was acceptable to all parties and to the County Council's own Social & Health Care Directorate and Supporting People Team. The changed wording reads (new text underlined):

"17.1 The Parties (other than the Administering Authority) shall indemnify the Administering Authority for any losses damages claims or liabilities it suffers from carrying out its role as the Administering Authority (save to the extent that such losses damages claims or liabilities are a direct result of the Administering Authority’s advice to the Commissioning Body on financial and compliance matters as mentioned in sub-paragraph 7(1)(d) of the Directions) PROVIDED THAT the Administering Authority has carried out its role with all reasonable care and skill."

3. Both former and revised versions comprise a qualified indemnity by the parties of the Commissioning Body (other than the County Council) for the benefit of the County Council for any losses etc it might suffer by virtue of its particular role as Administering Authority. The former wording qualifies this by limiting the indemnity so it does not the apply where those losses etc are a direct result of its advice on financial and compliance matters which are specific responsibilities the County Council has as Administering Authority. The new wording simply qualifies the indemnity so that it only applies so long as the County Council has carried out its role with all reasonable skill and care.
4. It is considered to be to the County Council's advantage to have the benefit of an indemnity in either form and that, given its leading role as Administering Authority, it is reasonable for it to expect to have some recourse to the other parties of the Commissioning Body; but equally it would not be reasonable to expect any indemnity to be unqualified. The former wording attempted to allocate the circumstances in which the indemnity could be relied on which, dependent on the prevailing situation at any given time, might be of more or less advantage to the County Council whilst the new wording applies a general standard of reasonableness.

RECOMMENDATION

5. The Executive is RECOMMENDED to approve the change specified in the report to clause 17.1 of the Memorandum of Understanding.

PETER CLARK
Solicitor to the Council

Background Papers: Nil

Contact Officer: Robert Austin Tel 01865 815907

March 2004

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