Kent County Council named the law it spent under. Now it is in court to make ministers explain theirs.

Part 9 · Kent LGR Investigation

Kent LGR Investigation. This article is one part of a continuing Kent Local News investigation. Read the full series in order — every part is published twice, as the full investigation and as a plain-English reader edition. Part 8 reported the council’s answer when it arrived. This part examines it.

On 23 April Kent Local News published a freedom-of-information response showing that the Ministry of Housing, Communities and Local Government held no legal rationale, no consultation record and no impact assessment when Kent’s councils were invited to reorganise.

Everything since has followed from one question that disclosure raised. Kent’s councils were spending money, signing contracts and moving staff to prepare for new authorities. Those authorities did not legally exist, and still do not: the Structural Changes Order that would create them has not been made. So under what power was that being done?

In May we put the question, in a formal notice reported in Part 4, to the statutory finance and legal officers of all fourteen Kent and Medway councils. None gave a substantive answer. We put it to the Ministry, which said spending was a matter for councils. We put it to the Leader of Kent County Council and, later, to its chairman. Across the first eight parts of this series, no Kent council named a power to this publication.

On 3 September, one did.

The answer

On 29 August we asked Kent County Council’s press office, among five questions for Part 8: “Under what statutory power is expenditure on reorganisation implementation being incurred in advance of a Structural Changes Order?” On 3 September a council spokesperson answered:

“The general power of competence in section 1 of the Localism Act 2011, and/or expenditure powers that are incidental or conducive to the discharge of their functions under section 111 of the Local Government Act 1972.”

Part 8 reported the answer when it arrived. It was the first time a Kent council had given this publication a legal basis for the spending, 133 days after the question was first put.

It was not the first time those sections had been cited. As Part 3 reported in May, Dover District Council, on the account of the residents who were then preparing a legal challenge, had been the first Kent authority to set out a written legal rationale, citing the same two sections together with section 3 of the Local Government and Public Involvement in Health Act 2007. That was said to the prospective claimants, not to us; Dover did not answer the questions we put to it for Part 8. Two Kent councils have therefore reached for the same two sections, to two different askers, months apart.

What section 1 of the Localism Act says

Section 1 of the Localism Act 2011 is known as the general power of competence. Its first subsection provides that a local authority “has power to do anything that individuals generally may do”.

The section is deliberately wide. It applies, in the Act’s words, to things an individual may do “even though they are in nature, extent or otherwise” unlike anything the authority could otherwise do, or unlike anything other public bodies may do. The power may be exercised “anywhere in the United Kingdom or elsewhere”, “for a commercial purpose or otherwise for a charge, or without charge”, and “for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area”.

It is not unlimited. Section 2 of the same Act sets its boundaries. Where an earlier power “is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped” by that earlier power, and the general power does not enable an authority to do “anything which the authority is unable to do by virtue of a pre-commencement limitation”. Put simply, the general power sits alongside the rest of the statute book; it does not override it.

The wording quoted here is the text in force on 19 October 2026. The section was amended earlier this year by the English Devolution and Community Empowerment Act 2026, which extended it to combined authorities; the words a county council relies on are unchanged.

What section 111 of the 1972 Act says

Section 111 of the Local Government Act 1972 is older and differently built. Headed “Subsidiary powers of local authorities”, it provides that a local authority “shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.

Three features of that sentence matter. It expressly covers spending money. It is expressed to be “subject to the provisions of this Act and any other enactment passed before or after this Act”. And it is tethered: the thing done must facilitate, or be conducive or incidental to, “the discharge of any of their functions”. It is an ancillary power, attached to something the council is already lawfully doing. Subsection (3) adds that it does not allow a council to raise money by rates, precepts or borrowing except under the enactments governing those matters.

The two powers are different in character. The first is broad and freestanding, within the limits in section 2. The second is narrower and depends on an existing function to attach to. The council’s answer invokes them in the alternative: “and/or”.

Where the two sides stand

Whether either section authorises this particular spending is the question the residents’ judicial review puts to the court. This publication expresses no view on it, and no court has yet ruled.

The claimants’ position has been on the record since April. Sean Turner, a Heritage Party councillor and one of the co-signatories of the residents’ submissions, told this publication for Part 3 that the general power of competence does not authorise expenditure on a programme where the council has no specific function, and that section 111 covers only matters incidental to existing functions. The claimants’ later candour notice, reported in Part 4, argued that section 1 does not override a council’s fiduciary and best-value duties, and that section 3 of the 2007 Act governs the invitation to submit proposals rather than their implementation.

Kent County Council’s position is the answer above. Asked in the same enquiry whether it stood by its statement to members that councils were “unable to stop or delay” reorganisation, it said that it did, that the statutory framework is the Local Government and Public Involvement in Health Act 2007, and that “the legislation does not require agreement from all affected councils before reorganisation can proceed”.

The residents’ claim, filed in the Administrative Court on 7 August with Kent County Council as defendant and the Secretary of State as an interested party, challenges Decision 26/00028 and its continuing implementation. On the claimants’ last account to this publication, permission had been neither granted nor refused. On 26 October Kent County Council confirmed to this publication that it has been served with the proceedings, brought by a group describing itself as the National Residents for Civic Accountability, and said it would be “responding to the claim in due course”. The council did not say whether permission has been decided, and nothing pleaded has been tested.

Four days later, the Government paused to check the law

On 7 September the Secretary of State, Angela Rayner, told the House of Commons: “In that context, and in the light of legal advice, I want to satisfy myself first that the right process is in place, that it is robust and, of course, that it complies with the law.” She withdrew the decisions made in March for Essex, Hampshire, Norfolk and Suffolk, adding: “The Government’s legal representatives have notified the court of this step.” She ordered “a full review of the local government reorganisation programme, including the decisions that were announced in July this year for a further 14 areas”, Kent among them, and asked “that reorganisation activity be paused”.

Two things about that statement need saying plainly. The legal advice concerns the Government’s own process and decisions; it is not a ruling on the councils’ spending powers, and the two questions are distinct. And the advice has not been published: the department’s announcement describes it only as “updated and privileged”. No one outside government knows what it says.

The Kent and Medway decision of 16 July was paused, not withdrawn. It remains in place, as the council itself noted on 12 October. The Ministry has published no outcome to its review and no timetable. It has not responded to this publication since 14 July.

Five weeks later, the council went to court

On 8 September Kent County Council said council leaders “will be seeking clarity from the government on a number of issues”. On 22 September it said it intended to send a pre-action protocol letter to the Secretary of State “in the coming days”. On 12 October, with the three-month time limit for a judicial review of the July decision four days from running out, it announced by press release that it “is proceeding with a legal challenge over the Government’s decision on local government reorganisation in Kent after repeated requests for an explanation of why and how the decision was reached went unanswered”. The release ends: “The matter is now with the Government’s legal department and the Court.”

The Leader, Linden Kemkaran, said: “We asked for answers in July. We wrote again twice in August. And we wrote again in September. Each time, our questions remain unanswered.” She added: “Residents have a right to understand how these decisions were reached, and we’ll continue pushing for those answers on Kent’s behalf.”

The time limit expired on Friday 16 October. As Kent Local News has reported, no public meeting of the council considered the decision to litigate, and the council’s register of executive decisions carries no record of it; we checked the register again on 28 October and found no entry between 16 and 28 October. The council has not said whether a claim has been issued, on what date, whether it is a protective claim, who authorised it or what it will cost. Asked those questions on 16 October, the press office replied on 19 October that it is “not able to comment on ongoing legal action”.

Two claims, two questions

If the council’s claim has been issued, Kent’s reorganisation is now before the High Court twice, from opposite directions. In the first claim, residents ask what legal authority Kent County Council had for the money it committed before any Structural Changes Order existed. In the second, as the council describes it, Kent County Council asks the Government to explain why and how it reached its decision, and to produce the evidence behind it.

The council’s case against ministers is that straightforward questions, put in writing four times, went unanswered, and that residents are entitled to an explanation. That is a reasonable principle. It is also the principle on which this investigation was conducted. The question of lawful authority was put in writing to fourteen statutory officers in May and answered by none; it was put to the county council’s Leader and chairman; it was answered by the council’s press office on 3 September, 133 days after it was first asked. Readers can hold the two records side by side.

Kent Local News does not suggest that the council’s claim is weak, or that the residents’ claim is strong. Both are untested. What can be said is that the dispute has narrowed. For most of this year it was about silence. It is now, on both sides, about reasons and powers: things a court can examine.

What is still unanswered

Four things.

The council has not said whether the implementation procurement authorised under Decision 26/00028, anticipated to exceed £1 million, has been paused, suspended or continued since 7 September. On 3 September it said it had not considered pausing or reviewing any reorganisation contract. Asked on 7 September whether that remained its position once the programme itself was paused, it replied with a link to its 8 September statement, which does not address the point. It has still not named a supplier. Asked again for this article, the council replied only that it could not comment on matters related to the residents’ proceedings.

Thirteen other Kent and Medway councils have not told this publication the power under which they spent. Dover’s citation, reported in Part 3, was made to the prospective claimants.

The Ministry has not answered any of this publication’s questions on reorganisation in Kent since 14 July, and has not said when the paused areas will learn the outcome of its review.

And the council’s own claim remains, on the public record, a press release.

The questions we have put

Kent Local News put the matters in this article to Kent County Council’s press office and to the Ministry of Housing, Communities and Local Government on Tuesday 20 October, with a deadline of 5pm on Monday 26 October. We asked the council whether it maintains that sections 1 and 111 are the powers under which reorganisation spending has been incurred, including since the 7 September pause; whether the Decision 26/00028 procurement has been paused, suspended or continued, and whether a supplier has been appointed; what has been spent on implementation before and since 7 September; whether its own claim raises the lawfulness of its pre-Order spending or is confined to the Government’s reasons; and whether it wished to comment on the comparison drawn above. We asked the Ministry whether it regards the two sections as capable of authorising such spending before a Structural Changes Order is made; whether its review has concluded and when its outcome will be published; whether the 16 July decision remains in force; and whether it has been served with a claim by the council.

The council replied on 26 October. A Kent County Council spokesperson said: “KCC has been served with judicial review proceedings (which are entirely separate from KCC’s challenge to the Secretary of State’s decision of 16 July 2026) by a group describing themselves as the ‘National Residents for Civic Accountability’. KCC will be responding to the claim in due course and cannot comment on matters which are related to those proceedings.” The council did not answer the five questions. The Ministry did not respond by the deadline.

Key information

• The question: under what statutory power did Kent’s councils spend on reorganisation before a Structural Changes Order existed
• Kent County Council’s answer (3 September 2026): section 1 of the Localism Act 2011 and/or section 111 of the Local Government Act 1972
• Section 1(1), Localism Act 2011: a local authority “has power to do anything that individuals generally may do”; limits in section 2
• Section 111(1), Local Government Act 1972: power to do anything “calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”
• Dover District Council cited the same two sections, plus section 3 of the 2007 Act, to the prospective claimants (reported May 2026)
• Government pause: 7 September 2026, “in the light of legal advice”; Kent and Medway paused, not withdrawn; advice unpublished
• Kent County Council legal challenge announced: 12 October 2026, by press release; time limit expired Friday 16 October; no public meeting, no published decision record
• Residents’ judicial review (NRCA v Kent County Council): filed 7 August 2026; Kent County Council confirmed on 26 October that it has been served; permission status unconfirmed
• Ministry’s last response to Kent Local News: 14 July 2026

Sources

• Localism Act 2011, section 1 — legislation.gov.uk (text as in force 19 October 2026)
• Localism Act 2011, section 2 — legislation.gov.uk
• Local Government Act 1972, section 111 — legislation.gov.uk
• Hansard — Local Government Reorganisation, statement by the Secretary of State, House of Commons, 7 September 2026
• Hansard — Local Government Reorganisation, statement repeated in the House of Lords, 7 September 2026
• MHCLG — “Review of local government reorganisation launched”, GOV.UK, 7 September 2026
• Kent County Council — “KCC steps up fight for answers over Government’s Kent reorganisation decision”, 12 October 2026
• Kent County Council — “Kent County Council responds to latest Local Government Reorganisation decision”, 8 September 2026
• Kent County Council — Local Government Reorganisation and devolution (checked 19 October 2026)
• Kent County Council — Executive decisions register, 16 to 28 October 2026 (no matching decisions)
• Kent Local News — Part 3: Kent LGR: 14 months of council spending lacked statutory authority (11 May 2026)
• Kent Local News — Part 4: Kent’s statutory officers put on notice over pre-Royal-Assent reorganisation spending (22 May 2026)
• Kent Local News — Part 7: Kent’s reorganisation reaches the High Court: residents file judicial review (29 August 2026)
• Kent Local News — Part 8: Told it was mandatory. Told it was not. (5 September 2026)
• Kent Local News — Five months of asking under what law. Then the Government stopped to check. (8 September 2026)
• Kent Local News — The deadline to sue the Government over Kent’s council shake-up falls this week (13 October 2026)
• Kent Local News correspondence: Kent County Council press office answers of 3 September 2026 (to the enquiry of 29 August), reply of 8 September 2026 (to the enquiry of 7 September) and reply of 19 October 2026 (to the enquiry of 16 October); right-of-reply enquiries to Kent County Council and MHCLG of 20 October 2026, and Kent County Council’s reply of 26 October 2026 (MHCLG did not respond)