When and what to upload to the subsidy database

Some aspects of the “new” regime have been with us since the beginning of 2021 – when the Brexit transition period came to an end and the Withdrawal Agreement was implemented. One such element is the BEIS subsidy database, which the UK Government has been using to fulfil its transparency obligations under the TCA.

While the database is staying, the rules about what to upload and when are changing - as this is now governed by Chapter 3 of Part 2 of the Act. In a time of learning lots of new rules, public authorities should be careful not to overlook these transparency obligations. This blog sets out the “when” and the “what” of uploading to the subsidy database under the Subsidy Control Act 2022.

Under S33, public authorities are obliged to make an entry in the subsidy database in respect of all subsidies given or schemes made, subject to limited exceptions. They must also update the database when a subsidy or scheme is modified.

As mentioned above, there are two exceptions – whereby entries in relation to certain subsidies do not have to be uploaded to the subsidy database. These are subsides of a value of less than £100,000 which:

• are given under a scheme, where an entry in the subsidy database has already been made in relation to the scheme (S33(2)); or
• are given as minimal financial assistance (S36(4)).

An entry in relation to a subsidy or scheme should be made within three months of confirmation of the decision to give the subsidy or make the scheme (S33(3)(c)). Public authorities should note that this is not three months from the date that the subsidy is given, or scheme made, but from when the decision to do so is confirmed.

It’s not entirely clear when the decision to make a scheme or give a subsidy is “confirmed”. BEIS’s draft statutory guidance says:

What the guidance describes as “flexibility” may be seen by some local authorities as uncertainty. We would recommend that public authorities consider carefully their decision-making process, and at what point a decision is definite. This may be an internal process, or an external factor such as entering into an agreement with the recipient of a subsidy. If there are two dates which could arguably be the date that a subsidy is confirmed, public authorities may wish to err on the side of caution and work towards meeting their transparency obligations in line with the earlier deadline.

With regard to modifications, however, an entry must be made within three months of “the date of the modification”. This date will generally be more clear and easier for an authority to identify, as it relates to the modification coming into effect – not to the decision to do so being made.

The content required of an entry in the subsidy database is set by regulations under S34 of the Act. These are the Subsidy Control (Subsidy Database Information Requirements) Regulations 2022, which can be viewed here.

The Regulations provide an extensive list of information which must be provided in an entry relating to a subsidy or scheme. Much of this information will not be required for most subsidies, but the list is a helpful tool for authorities, as it sets out clearly what information they will need to gather in order to update the Subsidy Database.

Authorities will already be used to making entries to the subsidy database under the TCA. In practice, we do not anticipate that the process will be particularly different now that the operative provisions of the Act have come into force.