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Authority Update

09/04/10

Legal intelligence for professionals in local government.

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update:

   Access to Information    Efficiency
   Adult Social Services    Equality and Discrimination
   Anti Social Behaviour    Governance
   Bribery and Corruption    Maladministration
   Children's Services    Police Authorities
   Community Engagement    Procurement
   Economic Development    Regulatory Services
   Education    Structural Change
   Bevan Brittan's Local Government Training Programme

 

Access to Information

East Riding of Yorkshire Council v Information Commissioner; Stanley Davis Group Ltd (t/a York Place) (Additional Party) (Decision no.FER0236058) (First Tier Tribunal): York Place, a property search company, made a request to the Council to inspect the building control and traffic schemes information within 200 metres of a named address. The Council agreed to provide the information requested but only on the provision of a fee based on the Charges for Property Searches Regulations 2008. The Council argued that it was allowed to charge for the information under reg.8(1) of the Environmental Information Regulations 2004 as the information was not in a public register and could not be inspected without further collation as part of local search Form CON29R. The Information Commissioner (IC) found that the request was a request to inspect environmental information but that the Council could not charge for the information by virtue of reg.8(2)(b), and he ordered the Council to make the information available for inspection.
The Council appealed to the First Tier Tribunal General Regulatory Chamber (Information Rights) (formerly the Information Tribunal). The Tribunal upheld the IC's decision, stating that the information covered by the Request, being the information required to answer the questions 1.1 (f) – (h), 3.4 and 3.6 of Form CON29R, should have been made available for inspection when requested and should be disclosed.   (15 March 2010) 

OneSearch Direct Holdings Ltd (t/a OneSearch Direct) v York City Council [2010] EWHC 590 (Admin) (Admin Ct): O was a property search company that compiled Home Information Pack (HIP) reports using data obtained from local authorities. The Council introduced a policy on access to and charges for property search information that would apply from 6 April 2009 which stated that property search information would be provided only through its Local Land Charges Office computerised “one stop shop”. Where the Council had an express duty to allow public access to information, then it would allow access freely or for the standard fee; all other enquiries would be provided with a full computer print-out for which they would be charged the same fee, calculated on a cost recovery basis, and the Council would not be able to provide answers to enquiries on a question by question basis. O applied for judicial review, contending that the policy was unlawful as it would not allow access to the raw data that the Council held, and so the policy defeated the obvious and clear intention of the statutory scheme, which was to provide competition in the provision of HIP reports and so access to the unrefined information necessary for the preparation of such reports.
The court held, refusing the application, that there was no express power on local authorities to respond to property search enquiries. In answering such enquiries, local authorities acted under their powers under s.111 LGA 1972 (power to do anything incidental to the discharge of their functions) and s.2 LGA 2000 (well-being power. The Charges for Property Searches Regulations 2008 related purely to the authority’s charging function and imposed no new duty on a local authority in respect of allowing access to information. O had failed to show that the Council’s policy was contrary to the Government’s intention on how its long-term policy aims were to be implemented, nor was the Council’s decision to refuse access to unrefined information contrary to the purposes or intention of any statutory provision so as to make that decision unlawful. (19 March 2010)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson. 

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Adult Social Services

DH: Building the National Care Service:  sets out the Government's proposals to build a comprehensive national care service for all adults in England with an eligible care need, free when they need it. The NCS will mean that people will be treated with dignity and respect, people will have control and choice over their care and they will be helped to stay in their homes for as long as possible. People who have to live in residential care will, from 2014, get their care for free after two years and there will be more help to pay the residential costs. This will be phased in three stages. (30 March 2010)

Social Care Charges (Wales) Measure 2010: this Measure, which comes into force on 17 May 2010, provides for the introduction of a new regime for charging in Wales which will ensure that Welsh local authorities adopt a more consistent approach to charging service users for non-residential social care services. It is primarily enabling in scope, allowing the Welsh Ministers to set out, in subordinate legislation and in guidance, the detail of a fairer and more consistent charging framework for local authorities to adopt. (17 March 2010)

Personal Care at Home Act 2010: this Act has received Royal Assent and comes into force on a day to be appointed. It amends s.15 of the Community Care (Delayed Discharges, etc) Act 2003 so as to remove the restriction on the period for which personal care may be provided free of charge to persons living at home. The Commencement Order is subject to the affirmative resolution procedure in both Houses of Parliament. (8 April 2010)

West Sussex CC v Amberley (UK) Ltd and Green [2010] EWHC 651 (QBD): A ran a residential care home that was managed by G. The one-time residents of the care home had enjoyed Preserved Rights benefits which meant that their social benefits were paid directly to A by central government to fund their care. Under changes brought in by the Health and Social Care Act 2001, responsibility for funding the care of those residents was transferred to local authorities. A asked the local authority to pay charges that were higher than Income Support at the higher level, but the local authority continued to pay sums based on its published schedule of maximum rates for accommodation in registered care homes, which were significantly lower than the rates demanded by A. The local authority mistakenly paid A for the care of a resident who had originally been placed at the home by another authority. The local authority claimed repayment by A of the amount mistakenly paid but A contended that they were entitled to set off the sums which they said were due for the accommodation of the former Preserved Rights residents.
The court held that A was not entitled to set off the sums claimed against the sums that the local authority had overpaid. A had no unilateral right to charge the care fees for which it had invoiced the local authority and there was no basis for concluding that those residents, in respect of whom the invoices were made, had agreed to pay the fees for which A had invoiced the local authority. It was clear that under s.50 of the 2001 Act a local authority was not required to provide a qualifying person with community care services with respect to his accommodation unless it had agreed the rates that were to be paid for such service. (31 March 2010)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson. 

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Anti Social Behaviour

Home Office: Guidance on Drinking Banning Orders on application and conviction: provides a single point of reference on Drinking Banning Orders (DBOs) for the police and local authorities, magistrates and approved course providers. It provides comprehensive information regarding the seeking, making and enforcement of a DBO, as well as covering matters relating to the recipient’s attendance of an approved course. (31 March 2010)

If you wish to discuss any of the items noted in this section please contact Adam Kendall. 

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Bribery and Corruption

Bribery Act 2010: this Act has received Royal Assent and comes into force on a day (or days) to be appointed. The Act provides a modern and comprehensive scheme of bribery offences. It:

  • replaces old and fragmented legislation with a modern and consolidated bribery law, based on the recommendations of the Law Commission;
  • creates offences of offering, promising or giving of a bribe and requesting, agreeing to receive or accepting of a bribe either in the UK or abroad, in the public or private sectors;
  • creates a discrete offence of bribery of a foreign public official in order to obtain or retain business; and 
  • creates a new offence in relation to commercial organisations which fail to prevent a bribe being paid by those who perform services for or on behalf of the organisation. It will, however, be a defence if an organisation has adequate procedures in place to prevent bribery.

 It repeals the whole of the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. (8 April 2010)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. 

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Children's Services

DCSF: Securing sufficient childcare - Statutory guidance for local authorities in carrying out their childcare sufficiency duties: statutory guidance to local authorities in support of their duties under the Childcare Act 2006 to secure sufficient childcare. It updates the guidance included in two earlier documents: ‘Childcare Sufficiency Assessments: Guidance for Local Authorities’ and ‘Securing Sufficient Childcare’. The guidance is intended to be a framework to steer local authorities through their sufficiency responsibilities. (31 March 2010)

Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (SI 2010/1158): this Order, which comes into force on 5 May 2010, removes the terms ‘local education authority’ and ‘children’s services authority’ from primary legislation and replaces them with the single term ‘local authority’.  (31 March 2010)
The Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Local and Subordinate Legislation) Order 2010 (SI 2010/1172) makes similar changes to local and secondary legislation.

DCSF: Childminding quality improvement networks - draft guidance:  seeks views on proposed guidance to help local authorities establish quality improvement networks and support and develop childminders and childminding in their areas. The consultation closes on 24 June 2010. (1 April 2010)

DCLG / DCSF: Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation: revised statutory guidance for children's services authorities and local housing authorities about their respective duties under Part 3 of the Children Act 1989 and Part 7 of the Housing Act 1996 to secure or provide accommodation for homeless 16 and 17 year old children, following the House of Lords' judgment in R(G) v Southwark LBC [2009] UKHL 26. (1 April 2010)

Children Act 2004 Information Database (England) (Amendment) Regulations 2010 (SI 2010/1213): these regulations, which came into force on 8 April 2010, amend SI 2007/2182 regarding the ContactPoint database. The changes include allowing the database to hold information on all children “in the area of a local authority” in England, rather than only those who are “ordinarily resident in England”. (7 April 2010)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson. 

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Community Engagement

DCLG: Listening to communities: Statutory guidance on the duty to respond to petitions: sets out the key principles and requirements of the petitions duty in the Local Democracy, Economic Development and Construction Act 2009 , which requires local authorities to create a scheme for responding to the petitions they receive, and to comply with that scheme. (29 March 2010)

DCLG: Sustainable Communities Act 2007 - Local spending reports: Proposals for second report consultation: Section 6 of the Sustainable Communities Act 2007 requires the SoS to make arrangements for the production of Local Spending Reports that provide information on expenditure by certain bodies exercising public functions in relation to a given area and over a defined period. This paper seeks views on proposals for the second Local Spending Report, its presentation and how these reports might develop over time. It places the development of Local Spending Reports in the broader context of work to make public data public. In particular, it summarises on-going work to ensure that public data becomes more accessible. The consultation closes on 16 July 2010. (30 March 2010)
The Government has also set up a Local Spending website that enables people to look at spending in any area of England by clicking on and scrolling over maps, showing how taxpayers' money was spent locally and by which public bodies.

DCLG: Volunteering for civic roles - Information for employers and employees: provides information about volunteering for a variety of civic roles to enable people to make informed decisions about whether they would like to participate in decision making in their communities. The document outlines the benefits for volunteers, employers and the wider community. (31 March 2010)

Cabinet Office: Mutual benefit - giving people power over public services: sets out how the Government plans to accelerate opportunities for mutual organisations to develop and flourish across three key areas of public services: children's centres, tenant management and new build cooperative housing, and health & social care. It defines "mutuals" as organisations that do not have external shareholders but are either owned by and run in the interests of existing members or owned on behalf of the wider community and run in the interests of the wider community. (31 March 2010)

DCLG: John Denham gives green light to top ten community ideas: announces the first ten proposals to receive Government support under the Sustainable Communities Act 2007 as part of a programme of local devolution aimed at helping boost local economies and improve communities. (6 April 2010)

Sustainable Communities (Amendment) Act 2010: this Act has received Royal Assent and comes into force on 8 June 2010. It amends the Sustainable Communities Act 2007 by setting a deadline for the Secretary of State to initiate the next round of proposals from local authorities for enhancing the sustainability of local communities, and provides for regulations to be made specifying the rules for this process. The regulations will also cover parish council involvement and the role of local petitioning. There is also provision for greater flexibility in decision-making on proposals. (8 April 2010)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. 

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Economic Development

DCLG: Statutory guidance on local economic assessments: explains the new duty under s.69 LDEDC Act on county concils and unitary authorities to prepare an assessment of local economic conditions, that came into force on 1 April 2010. (31 March 2010)

DCLG: Proposal to establish a combined authority for Greater Manchester: seeks views on the Association of Greater Manchester Authorities' scheme for the establishment of a combined authority for Greater Manchester, and on the proposed structure, constitution and functions of the new authority. Under the proposals, 10 local authorities will form a new City Region combined authority with devolved powers over economic development, housing, climate change, transport and regeneration, giving it the freedom to drive forward improvements to local services based on local needs and priorities. The consultation closes on 14 July 2010. (31March 2010)

If you wish to discuss any of the items noted in this section please contact Bethan Evans. 

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Education

Children, Schools and Families Act 2010: this Act has received Royal Assent. It mainly comes into force on a day (or days) to be appointed. It makes provision about: children with disabilities or special educational needs, school and other education, and governing bodies’ powers; amending the Education Acts; Local Safeguarding Children Boards; and publication of information relating to family proceedings. To enable the Bill to complete its remaining stages before Parliament was dissolved, the Government tabled a number of amendments to the Bill; however, some key provisions were taken out because no agreement could be reached between the Government and opposition parties. Details of the provisions removed and the provisions that remain in the finalised Act are in the DCSF statement on the Children, Schools and Families Bill. (8 April 2010)

DCSF: Ed Balls announces next stage of school improvement: announces the 16 primary schools that will support the improvement of other schools as part of the Accredited Schools Providers (ASPs) and Accredited Schools Groups (ASGs) programme, where the best schools will help spread expertise and leadership across the country and help push school standards to the next level. Also announces around £15m in investment to enable the creation of 30 more National Challenge Trusts, along with new Academies in Kent and Suffolk. In addiotn, the Schools Secreaty has approved  a new Academy in Lambeth, asked Wandsworth to review its existing plans, but accepted advice not to proceed with proposals for a new and extra school in Kirklees. (29 March 2010)

DCSF: Every region in England to receive funding increases for education for 16 to 18 year olds: announces £6.48m funding for school sixth forms, Academies and Further Education colleges.  (30 March 2010)

DCSF: Guidance on school behaviour and attendance partnerships: this guidance for schools and local authorities involved in behaviour and attendance partnerships updates earlier guidance. It builds on the approach set out in 'Your Child, your schools, our future' that schools working together can deliver better outcomes for their pupils and lead their own improvement supporting one another. It takes account of the work of Sir Alan Steer in identifying key principles of effective partnership working and other key developments. It also explains what schools need to do to meet their new statutory duties. (31 March 2010)

School Information (England) (Amendment) Regulations 2010 (SI 2010/1006): these regulations, which come into force on 1 September 2010, amend SI 2008/3093 by prescribing additional information that local authorities must make available in their composite prospectuses concerning schools in their area. They also place new requirements on school governing bodies to provide specific information within the school prospectus and also to publish the school prospectus on the school website, where the school has a website. (31 March 2010)

Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (SI 2010/1158): this Order, which comes into force on 5 May 2010, removes the terms ‘local education authority’ and ‘children’s services authority’ from primary legislation and replaces them with the single term ‘local authority’.  (31 March 2010)
The Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Local and Subordinate Legislation) Order 2010 (SI 2010/1172) makes similar changes to local and secondary legislation.

Education (Educational Provision for Improving Behaviour) Regulations 2010 (SI 2010/1156): these regulations, which come into force on 1 September 2010, impose requirements relating to the exercise of governing bodies' powers under s.29A of the Education Act 2002 to require pupils to attend educational provision at a place outside the school premises to improve their behaviour. They describe who must be notified of the imposition of the requirement, and how its imposition must be kept under review. Their purpose is to provide safeguards to ensure that the power is exercised reasonably, so that pupils are not required to be out of school any longer than is necessary to improve their behaviour. (31 March 2010)

Education (Short Stay Schools) (Closure) (England) Regulations 2010 (SI 2010/1071): "short stay schools" are the new name for Pupil Referral Units. These regulations, which come into force on 1 September 2010, provide that, where the Secretary of State has exercised powers to direct the closure of a short stay school, he may give directions to the local authority concerned as to the alternative educational provision it is to make instead. The regulations also provide that in specific circumstances a local authority cannot close a short stay school without the consent of the Secretary of State. (6 April 2010)

Federation of Maintained Schools and Miscellaneous Amendments (Wales) Regulations 2010 (SI 2010/638 (W.64)): these regulations, which came into force in Wales on 12 April 2010, make a number of changes to legislation regarding federations consisting of all categories of schools in Wales. (9 March 2010)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson. 

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Efficiency

DCLG: Total Place - Spend counting analysis and customer insight status: this research publication reports on the spend count and customer insight elements of the 13 Total Place pilots across England that have looked in depth at how greater co-ordination between partners and local leadership could help deliver better services with the customer at the heart of their design at less cost through the whole public resources spent in a geographical area. (1 April 2010)

If you wish to discuss any of the items noted in this section please contact Bethan Evans. 

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Equality and Discrimination

Equality Act 2010: this Act has received Royal Assent and comes into force on a day (or days) to be appointed. It makes the law easier to understand and implement by simplifying 116 pieces of equality legislation into a single Act for individuals, public authorities and private organisations. The measures include giving people the right not to be treated less favourably by public authorities because of their age, religion or belief, sexual orientation, or transgender status, as well as their disability, gender, or race which were already covered. It also extends anti-age discrimination rules to include goods, facilities and services. (8 April 2010)

If you wish to discuss any of the items noted in this section please contact Sarah Lamont. 

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Governance

DCLG: Guidance on community governance reviews: guidance to principal councils on undertaking community governance reviews and making recommendations on electoral arrangements for parish councils (31 March 2010)

CIPFA: Application note to Delivering Good Governance in Local Government: framework: advises on the application of the Statement on the Role of the Chief Financial Officer in Local Government under the CIPFA/SOLACE framework, that sets out the principles that define the core activities and behaviours for the CFO role. CIPFA recommends that organisations should use the Statement as a framework to benchmark their existing arrangements, and that they should report publicly on compliance to demonstrate commitment to good practice in both governance and financial management. This note sets out how the governance requirements to support the principles in the CFO Statement build on the governance requirements that need to be reflected in an authority’s local code set out in the CIPFA/SOLACE Framework and guidance note, and how the annual governance statement can reflect compliance with the CFO statement for reporting purposes. (31 March 2010)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. 

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Maladministration

DCLG: Government response to Getting it Right and Righting the Wrongs: the Cook Review looked at how local authorities could improve their customer service, complaints handling and remedy systems. This document responds to the recommendations in the Review's report, setting out the actions the Government will take to ensure that councils put customers first, including piloting a Practitioners' Toolkit to help councils improve local services. (31 March 2010)

If you wish to discuss any of the items noted in this section please contact Bethan Evans. 

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Police Authorities

Home Office: Statutory guidance for police collaboration: this guidance aims to assist police authorities and forces considering and implementing collaborative working as a means to achieving more efficient and effective delivery of policing services. It includes a summary of the relevant legislative framework under the Police Act 1996 and the Policing and Crime Act 2009 and has sections on governance, procurement and workforce considerations. It covers models of collaboration with details on how to establish a collaboration agreement under s.23 of the 1996 Act. (30 March 2010)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. 

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Procurement

OGC guidance: new procurement guidance issued:

  • Mandatory exclusion of economic operators: advice on the steps that contracting authorities can take to ensure compliance with the mandatory requirement in the Public Contracts Regulations that suppliers, contractors and services providers who have been convicted of certain offences, including participation in criminal organisations, corruption, money laundering and fraud, be excluded from public contracts.
  • The ten key procurement for growth principles: emphasise the need for effective engagement with industry pre-procurement, to enable consideration of supply chain opportunities and take account of industry feedback before requirements are set;
  • Implementing e-tendering: sets out some of the benefits which can be achieved for both contracting authorities and suppliers from the effective use of electronic tendering in public procurement. It also offers guidance on implementing e-tendering solutions;
  • PPM, assurance and procurement landscape map: flow chart bringing together the different stages of a programme or project to portray the interdependencies between PPM and the procurement lifecycle, assurance activity (such as OGC Gateway reviews) along with risk management. The tool also highlights the need to consider Early Market Engagement activity as part of the strategic process from high level policy to a delivery programme;
  • Procurement Policy Note – Requirement to include 30-day payment clause in new contracts (Action Note 07/10): from 25 March 2010, it will be mandatory for all Government departments, agencies, NDPBs and the bodies over which they have direct control to include a contract condition requiring their contractors to pay their sub-contractors within 30 days. This action note provides guidance and an appropriate model clause to help the Government implement the new requirement. It covers new contracts for goods and services only.

If you wish to discuss any of the items noted in this section please contact Susie Smith. 

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Regulatory Services

Home Office: Sex entertainment venues - guidance for England and Wales:  this guidance accompanies the reforms to the licensing of lap dancing clubs introduced by the Policing and Crime Act 2009, which allow local authorities to regulate lap dancing clubs and other sexual entertainment venues at sex establishments under Sch.3 to the Local Government (Miscellaneous Provisions) Act 1982. The new provisions, which will give local authorities more power to control the number and location of lap dancing clubs and similar establishments, come into effect on 6 April 2010 in England and on 8 May 2010 in Wales. (31 March 2010)

If you wish to discuss any of the items noted in this section please contact Adam Kendall. 

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Structural Change

Norwich and Norfolk (Structural Changes) Order 2010 (SI 2010/997) and Exeter and Devon (Structural Changes) Order 2010 (SI 2010/998): these Orders, which both came into force on 25 March 2010, provide for a single tier of local government in the cities of Exeter and Norwich with effect from 1 April 2011. Exeter City Council and Norwich City Council will from 1 April 2011 be the sole principal authorities for the cities of Exeter and Norwich and will exercise all local government functions in those areas. Devon and Norfolk County Councils’ functions in relation to the remainder of their respective county areas are unchanged. (24 March 2010)

DCLG: Form and function - A comparative evaluation of new unitaries and two-tier pathfinders: Qualitative research - Interim report: this publication is part of the evaluation of unitary and pathfinder authorities. It presents early, interim, findings from the qualitative strand of the evaluation, examining the process of implementation in order to draw practical lessons for local authorities and for any future rounds of reorganisation. Also, it provides a baseline and context for the intended summative assessment of performance, helping to cast light on why outcomes vary and how they are affected by local circumstances and implementation processes.  (31 March 2010)
DCLG has also published a number of supporting documents, including a literature review, evaulation framework and baseline statistic analysis, which are available on the DCLG Restructuring web page.

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. 

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Bevan Brittan's Local Government Training Programme

Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act.

The full Local Government Training Programme is available on our website. Forthcoming seminars in 2010 include:

 If you wish to attend any of these sessions please contact our Events team.

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Disclaimer

This update is intended to give general information about legal topics and is not intended to apply to specific circumstances. Its contents should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem that you may have you are advised to seek specific legal advice.

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