Commentary Part 5 – Conduct of Local Audit Section 28: Declaration that item of account is unlawful
102.This section provides for a local auditor to apply to the courts for a declaration that an item in the accounts is unlawful. This does not apply to health service bodies. The court will decide whether to make that declaration and where it does, may order changes to be made to the statement of accounts or the accounting records.
103.If an auditor decides not to investigate an objection made under section 27 relating to unlawful expenditure or decides not to refer the matter to the courts, the person raising the objection may require the auditor to provide written reasons for that decision within six weeks of the auditor’s decision. Following receipt of the auditor’s written reasons, the person then has a further 21 days to appeal against the decision to the courts. If the local elector appeals to the court, the court has the same powers as it does if the auditor had applied for a declaration.
104.The court can make an order for the relevant authority to pay expenses incurred by the local auditor or local government elector as a result of this action. If an auditor considers exercising this power, but ultimately does not do so, they can recover the reasonable costs for their time in investigating the issue from the relevant authority.