Proposals on secondary legislation the Land Reform (Scotland) Act 2003 part three: crofting community right to buy as amended by the Community Empowerment (Scotland) Act 2015: consultation

6. Reimbursement of Expenses by Ministers

Circumstances in which application for reimbursement can be made

Background

Usually there are costs to the CCB of undertaking a ballot, such as administrative costs, printing costs and postage. Ministers have set out that they will, in certain circumstances, reimburse the cost of conducting the ballot under the crofting community right to buy provisions. Provision is made in sections 75(6) and (7) of the 2003 Act. Section 75(7) sets out provisions that can be included in the secondary legislation, through regulations.

The Scottish Government proposes that the circumstances in which a crofting community can make an application to Ministers for reimbursement of the expense of conducting a ballot should be:

a) when the ballot has been conducted as prescribed;

b) where the eligible voters indicated in favour of the proposition that the CCB exercises its right to buy; and

c) where the CCB's application for consent to buy croft land, etc. has been considered by Ministers who have notified that decision to the relevant parties.

Question 11: Do you agree with the list of circumstances noted above?

Question 12: Are there any other circumstances that should be included in addition to those set out above?

The responses to these two questions overlapped, with respondents tending to address them together.

Of the nine respondents, Scottish Land and Estates expressed explicit opposition to reimbursement, with all of the others broadly accepting it.

Amongst the supporters, however, three shared the view that the outcome of the ballot, whether in favour or against the right to buy, should be of no consequence in relation to reimbursement of expenses. For example, Comhairle nan Eilean Siar commented:

"It is unfortunate that a vote not to proceed would not be eligible to seek reimbursement of costs. That may act as a disincentive, especially where the vote may be very close. A harsh outcome for the community group that have taken the risk to go to a vote."

Community Land Scotland recommended that, in order to provide flexibility, Scottish Ministers be given discretion to meet expenses in any other circumstances where they consider this to be warranted.

Scottish Land and Estates, although opposed to the reimbursement, proposed that if this is to be provided for, certain conditions should apply. In particular, they recommended that reimbursement should be limited to factors directly associated with the ballot and all expenses should be fully vouched for with original and detailed invoices. Where there has been third party involvement, they proposed that a clear rationale should be provided for that involvement by the CCB.

Calculating the expense of conducting the ballot

Question 13: Should the method that Ministers use to calculate the costs take account of all of the expenses that a crofting community body incurs in connection with the ballot, or should it only take account of certain costs relating to the ballot?

Six respondents addressed this question with all agreeing that the method that Ministers use to calculate the costs should take account of all of the expenses that a CCB incurs in connection with the ballot. Community Land Scotland proposed that some flexibility is built in to allow for Ministers to meet any other identified expenses they believe are warranted.

Comhairle nan Eilean Siar commented that in a large constituency ballot costs can be significant for a fledgling community organisation; Highlands and Islands Enterprise argued that they could see no justification for reimbursing only part of the costs.

Criteria to be applied by Ministers in deciding whether to make a reimbursement to the applicant crofting community body

Background

The 2003 Act provides that Ministers may make regulations which include provisions relating to the criteria to be applied by Ministers in deciding whether to make a reimbursement to the applicant (section 66(7)(c) refers).

The Scottish Government proposes that Ministers will need certain information in order that they can calculate expenses. It proposes that this should be:

a) a statement detailing all costs that were incurred in connection with the ballot, with each cost item being fully vouched; and

b) all documentation relating to the procurement of the ballot, including any estimates of costs for services to be procured.

The Scottish Government suggested that Ministers could also apply a number of criteria such as whether the costs are "reasonable"; and whether the costs should be less than a certain sum per head.

Question 14: What criteria should Ministers use when deciding whether to make a reimbursement of ballot costs to a crofting community body?

Eight respondents addressed this question. There was general agreement that Ministers will need the information outlined at a) and b) above.

Three respondents considered that, in addition, Scottish Ministers required to be satisfied that the costs were "reasonable". The remaining three respondents proposed that CCBs should be required to provide evidence that they had sought competitive quotes in relation to the ballot costs and had taken measures to ensure they achieved value for money in procuring services.

Highlands and Islands Enterprise's view was that it may not be possible to determine a "reasonable cost" or a certain sum per head when the circumstances of the ballot and availability of organisations and contractors to undertake ballots are so varied.

Procedure to be followed in connection with the making of an application for reimbursement to Ministers

Background

The 2003 Act provides that Ministers may make regulations which include provisions relating to the procedure to be followed in connection with the making of (1) an application for reimbursement to Ministers; (2) an appeal against a decision made by Ministers in respect of an application for reimbursement (section 75(7)(d) refers).

The Scottish Government proposes that an application for the reimbursement of costs in relation to a ballot should be made by:

a) an application by the CCB to Ministers within 90 days from the date of notification of their decision of an application under section 82;

b) a claim for expenses to be fully vouched;

c) a claim for expenses to include all documentation relating to the purchase of services that were used in relation to the ballot, including any estimates of costs.

The Scottish Government also proposed information that should be included in the CCB application for reimursement of expenses; and documentation to accompany the application.

Question 15: Do you agree with the procedure to be followed when making an application to Ministers?

Eight respondents addressed this question with general agreement from all that the procedure appears appropriate.

Only two substantive additional comments were submitted. Community Land Scotland questioned whether is it necessary to request the names and addresses of all Board members in the application given that a signed statement of two members is required to certify that the details given in the application are accurate.

Highlands and Islands Enterprise agreed with the proposals with the exception of the requirement that CCBs have to wait until the notification of the decision on their right to buy application to make an application for reimbursement of ballot costs. They reiterated their view that eligibility to apply for reimbursement should not be conditional on a vote in favour of exercising the right to buy. They also considered that Ministers should provide an explanation to the CCB in circumstances where the application for reimbursement of ballot costs is refused.

Appeals

Background

The 2003 Act provides that Minsiters may make regulations which include provisions relation to making an appeal against a decision made by Ministers in respect of an application for reimbursement of the expense of conducting a ballot under the crofting community right to buy provisions (section 75(7)(d)(ii) refers). In addition, Ministers may also make regulations which set out the persons who may consider such an appeal and the powers of such persons (section 75(7)(d)(ii)(e) and (f) refers).

The Scottish Government proposes that an appeal can be made only by a CCB within 60 days from the date of the submission of the claim, to the Sheriff Court. The court, having considered and reviewed all information received by Ministers and by the CCB making the appeal, can decide whether or not to reimburse the costs, with the court's decision final.

Question 16: Are there any changes that you would make to the appeal process, outlined above?

Eight respondents addressed this question with five stating that there are changes they would like to make and three content with the process outlined.

Despite indicating that changes are required, only one respondent supported their view, suggesting that it would be helpful if the grounds for appeal were detailed (Highlands and Islands Enterprise).

It is possible that some of the five respondents answering yes to this question were actually content with the appeal process but responded erroneously with "yes" to show their agreement rather than "no" for no change.