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Brentwood Borough Council

FOI 9946

Hutton Community Centre : Audit and Scrutiny Report : 28th October, 2014

Request


At the above webcast meeting, under point 4.8 of the Task & Finish Report relating to Hutton Community
Centre, the following statement was made :


Following a range of conflicting accounts, the task and finish group was advised

by the Council’s Monitoring Officer that the surrender of the lease of the Centre

in 2013 to the Council was legally conducted.


Under Freedom of Information procedures, can you please supply me with the following documents/evidence :

1) Copy of Lease relating to Hutton Community Centre at the time of 'surrender'
2) Copy of Surrender Document (with required signature(s)) held by the Council
3) Copies of documentation confirming the legality of the surrender proceedings

Response

I am in receipt of your Freedom of Information request which has been assigned the reference number FOI 9946. These requests have been passed to myself to prepare a response which is set out below.

Before turning to the authority’s responses to the specific requests I believe it will be helpful to set out the full text of the request in order to put the matter in a narrative context:

On the 11 November 2014 at 10 59 pm the Council’s FOI email address received an email from a Ms Susan Hickman entitled, “Subject: Hutton Community Centre: Audit and Scrutiny Report: 28th October, 2014”

In the body of the emailed FOI request Ms Hickman’s kindly states and requests:


“At the above webcast meeting, under point 4.8 of the Task & Finish Report relating to Hutton Community
Centre, the following statement was made :

Following a range of conflicting accounts, the task and finish group was advised

by the Council's Monitoring Officer that the surrender of the lease of the Centre

in 2013 to the Council was legally conducted.

By way of general narrative response and to ensure a meaningful response to this enquiry, bearing in mind the need to consider third party personal data and / or third party sensitive personal data and the balance of the public interest I would set out my understanding as follows:

• The Council is the owner of the land on which the Hutton Community Centre is built having inherited it from the Greater London Council. The GLC had leased it to the trustees of the Hutton Community Association by a lease dated 6 March 1974 for a term of 60 years. The Association had previously built the building on the land under an earlier agreement with the GLC.

• The Lease requires the lessee to repair and maintain the building and allows the Lessor on reasonable notice to enter to view the condition of the property.

• The Hutton Community Association was a registered Charity with registration number 301346. The name of the Charity was changed to the Brentwood Youth Project in 2006 and then again to Hutton Community Centre in 2009.

• In conversation and correspondence with the charity in 2012 the Council’s the Head of Legal Services was informed that there had been an internal management dispute which had been the subject of public court proceedings.

• The Council then checked the current entry on the Charity Commission website and noted that no returns have been filed since 2008 and that other formalities required addressing.

• In December 2012 the Council’s wrote to the charity concerning both a surrender / forfeiture of the lease as there had been previous correspondence over serious dilapidations which would have been in substantial breach of the terms of the lease.

• Subsequently the authority received an indication of surrender the lease both by deed, conduct and correspondence. The Council has taken the view that in the light of these actions, including written correspondence that the “charity has since been wound up”, that it was reasonable to conclude the lease surrendered by operation of law.

• In the interim the authority (and after being given all the keys to the premises) has taken steps since the surrender of the premises to protect its structure for the benefit of the local community and now wishes to grant a lease to a successor organization and will invite local charities to come forward for that purpose and to that end has acquainted the Charity Commission with the above.


Before turning to the specific requests for information I believe, as this request involves the potential release of third party personal data, it is necessary to consider the following:

Section 40 - if the information constitutes the personal data of third parties, Information Commissioner (ICO) guidance indicates that public authorities should consider whether disclosing it would breach the data protection principles. The only one which is likely in this context to be relevant is the first principle.

A public authority can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the DPA (and in the case of sensitive personal data, a condition in Schedule 3)

Assessing whether disclosure is fair involves considering:


• whether the information is sensitive personal data;

• the possible consequences of disclosure on the individual(s) concerned;

• the reasonable expectations of the individual, taking into account: their expectations both at the time the information was collected and at the time of the request; the nature of the information itself; the circumstances in which the information was obtained; whether the information has been or remains in the public domain; the FOIA principles of transparency and accountability; and

• any legitimate interests in the public having access to the information and the balance between these and the rights and freedoms of the data subjects.

• If the disclosure would not be fair, the information must not be disclosed. If it would be fair, then if it is sensitive personal data the public authority must decide whether it would satisfy a condition in Schedule 3 of the DPA. The only relevant conditions are: explicit consent; or the data subject has already made the information public.

• If disclosure would be fair (and in the case of sensitive personal data, would also meet a Schedule 3 condition), the public authority must go on to consider whether it would satisfy a Schedule 2 condition. The only relevant conditions in Schedule 2 are: the data subject has consented to the disclosure; or there is a legitimate interest in disclosure to the public and disclosure is necessary to meet that interest and it does not cause unwarranted harm to the data subject’s interests. The key consideration here is whether the disclosure is necessary.

• If a Schedule 2 condition (and where relevant a Schedule 3 condition) is not met, the information must not be disclosed. If a relevant condition is met, the public authority must consider whether the disclosure would be lawful. Lawful means that the disclosure must not breach statute or common law, a duty of confidence or an enforceable contractual term.

• If all of these requirements (fair, Schedule conditions and lawful) are met, then the disclosure would not contravene the first DPA principle. If they are not met, then the information must not be disclosed. This is an absolute exemption.



Turning now to the specific requests and seeking to apply the above ICO guidance:


Request 1: Copy of Lease relating to Hutton Community Centre at the time of 'surrender'

Response: Attached with redaction of third party personal data consisting of names and addresses.


Request 2 Copy of Surrender Document (with required signature(s)) held by the Council

Response: These documents are to and from third party individuals and contain personal data, in the absence of consent for release and bearing in mind the extensive nature of this correspondence, the evidenced course of recorded conduct the Authority’s then Head of Legal Services was satisfied that the lease has been duly surrendered by conduct and operation of law and the Charity Commission has since been duly informed. This course of conduct is referred to in the above narrative response which is intended to address the balance of the public interest in this matter in the absence of third party consent to release of extensive third party personal data / documents.


Request 3: “Copies of documentation confirming the legality of the surrender procedure”

Response: These documents are to and from third party individuals and contain personal data, in the absence of consent for release and bearing in mind the extensive nature of this correspondence, the evidenced course of recorded conduct the Authority’s then Head of Legal Services was satisfied that the lease has been duly surrendered by conduct and operation of law and the Charity Commission has since been duly informed. This course of conduct is referred to in the above narrative response which is intended to address the balance of the public interest in this matter in the absence of third party consent to release of extensive third party personal data / documents.