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Authority Update

25/02/11

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    Highways
   Adult Social Services    Meetings
   Audit    Members
   Children's Services    Officers
   Defamation     Performance
   Education    Procurement
   Equality    Wales
   Finance  

 

Access to Information

DCLG: Arm's length bodies reform - managing data legacy: sets out principles on the transfer of information, records and knowledge that DCLG and its arm's length bodies will need to follow when managing data legacy, to ensure that data continues to be publicly available for those bodies that are being dissolved or transferred. (18 February 2011)

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

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Adult Social Services

R (Hertfordshire CC) v Hammersmith & Fulham LBC; JM (Interested Party) [2011] EWCA Civ 77 (CA): this case concerned the allocation, as between social services authorities, of responsibility for meeting the care needs of a patient who was discharged into the community following a period of detention under the Mental Health Act 1983.
JM issued judicial review proceedings regarding the effect of s.24(5) of the National Assistance Act 1948, which deems a person provided with residential accommodation to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him, on s.117 of the 1983 Act, which imposes a duty to provide aftercare for a discharged patient upon the local services authority for the area in which he was resident or to which he was sent on discharge. JM contended that "is resident" in s.117(3) had the same (or substantially the same) meaning as "is ordinarily resident" under s.24 of the 1948 Act, so that a person placed by a local authority under s.21 of the 1948 Act in the area of another local authority remained ordinarily resident in the area of the placing authority for the purposes of Pt III of the 1948 Act and s.117(3) of the 1983 Act.
The Court of Appeal held that the 1948 Act precedent had to have been well-known to those involved in drafting the 1983 legislation, and the court had to proceed on the basis that Parliament had deliberately chosen a different formula and that, by implication, it accepted the possibility of responsibility for patients changing over the period of detention, including the potential impact on continuity of patient care. Section 117 was intended to be a freestanding provision, not dependent on the 1948 Act. (15 February 2011)

Bupa: Who cares? Funding adult social care over the next decade: this report examines the potential effects on the care home sector in England if local councils continue to pay fees at levels which are below the costs of looking after older people in care homes. It predicts that if the current decline in fee rates continue, care homes will close and over the next decade up to 100,000 people could end up being admitted to hospital or left without proper support in their own homes. Bupa calls for five steps to avoid this happening, including council leaders ring-fencing the £2bn the Government allocated for social care; and taking care home cost inflation into account when setting fees. (24 February 2011)

CQC: What standards to expect from the regulation of agencies that provide care in your own home: guidance for those receiving care, treatment or support provided by an agency in their own home on important changes to the way that home care agencies are regulated. It explains about new essential standards of quality and safety that home-care agencies must meet, how these are monitored, and what  to do if the user needs to make a complaint. There is similar guidance on What standards to expect from the regulation of your care home. (25 February 2011)

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

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Audit

DCLG: The audit and inspection of local authorities: this memorandum outlines how the Government is taking forward the establishment of a new, more localist, audit regime for local public bodies, and the underlying principles on which the Government believes any such regime should be based. It follows on from the announcement in August 2010 that the Audit Commission is to be abolished. The abolition and replacement of the Audit Commission is not included in either the Public Bodies Bill or the Localism Bill. The Government will consult on the details of a new audit framework early in 2011, and intends to introduce the necessary legislation at the earliest opportunity. (21 February 2011)

Audit Commission: Auditing the accounts 2009/10 - Parish councils: this report looks at the timeliness and quality of financial reporting by parish councils in 2009/10. The report covers 9,397 parish councils each with an annual turnover less than £1m. Overall, the report found that parish councils’ financial reporting is improving; however, it names eight parish councils that failed to publish an annual return for the last three years or more, and emphasises that these bodies are not providing the basic level of accountability to which local electors are entitled. (24 February 2011)

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

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Children's Services

Ofsted:  Framework for the inspection of children’s homes: Ofsted has launched a new inspection framework for all children’s homes in England that will focus inspection on the quality and impact of services and the outcomes achieved for children and young people.  The new regime will be implemented from April 2011 through new Children’s Homes Regulations and new National Minimum Standards for Children’s Homes. Children’s homes will be inspected twice yearly with one full inspection and an interim inspection, all of which will be unannounced. The full inspection will take up to two days and judgements will be made through carefully balanced consideration of the impact of the quality of care provided on children and young people, using a four-point scale: Outstanding, Good, Satisfactory and Inadequate. This document sets out the framework and guidance for inspections of children’s homes. It should be read alongside the evaluation schedule for the inspection of children’s homes. (11 February 2011)

LGI&D: 10 questions to ask if you're scrutinising services for looked after children: this guide is one of a series produced by LGI&D and CfPS on a range of topics, that aim to provide clear and succinct advice for scrutiny members and officers on the key issues to cover in a scrutiny review as well as jargon-busting, links to further information and case studies.  The ten question areas and their detailed questions can be used by Overview and Scrutiny Committees to scope a review that takes an overview of all services relevant to looked after children, or to focus on an area of particular interest. The questions can also be used to gather information during the course of the review and to frame evidence sessions with witnesses. (9 February 2011)

DfE: Sure Start children's centres statutory guidance: this guidance, issued under the Childcare Act 2006, advises local authorities their duties under the 2006 Act (as inserted by  the Apprenticeships, Skills, Children and Learning Act 2009) in relation to establishing and running children’s centres. In particular it draws authorities' attention to the duties under s.5A to make sufficient provision of children's centres to meet local need, and under s.5D to consult before establishing, significantly changing or closing a children's centre. (17 February 2011)

DfE:  Adoption guidance - Adoption and Children Act 2002: First revision: this statutory guidance explains the content of the different sets of regulations made under the Adoption and Children Act 2002, and the duties and responsibilities that they place on adoption agencies. It highlights how delays in the adoption process can have a very detrimental effect as it reduces the child’s chances of finding a family and has negative consequences on their future development. The guidance states that local authorities must consider all of the child’s needs and not place the issue of ethnicity above everything else, though this must be taken into account; nor should they reject potential adopters on the basis of their marital status, age, or social background. (22 February 2011)

DfE: Free books for children: announces that the Booktrust free books for children scheme is to continue, with the Government investing £13.5m over the next two years. The new bookgifting programme will remain a universal offer, but will be enhanced by new elements offering targeted support for disadvantaged children and families. The programme will give all children up to the age of 11 access to books from an early age and will help contribute towards their literacy and learning skills. (25 February 2011)

DfE: Voluntary and community organisations awarded £60 million grant: gives details of the organisations that have been successful in their bid for funding from the Voluntary and Community Sector grant worth around £60m each year. The awards are made to  voluntary and community organisations that work with children, young people, parents and families, with a particular emphasis on early intervention and tackling the needs of the most disadvantaged groups. (25 February 2011)

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

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Defamation

Bevan Brittan: Online defamation - Q&A: in these times of austerity, many public bodies are making very difficult decisions which impact on staff and service users. The increased level of awareness and scrutiny of these decisions, coupled with the prevalence of social networking sites and online forums, means that public bodies are fighting a daily battle against critical comments posted online, some of which stray into the realms of libel. This article sets out the most common questions we receive from our public sector clients about this issue, together with our answers. (24 February 2011)

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

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Education

School Finance (England) Regulations 2011 (SI 2011/371): these regulations, which come into force on 15 March 2011, provide for local authorities' funding of maintained schools and providers of prescribed early years provision in England for the financial year 2011-2012. They define the local authority education budgets, namely the non-schools education budget, the schools budget, the central expenditure and the individual schools budget. They set out how local authorities are to allocate funding from the individual schools budget to maintained schools and private, voluntary and independent providers of free early years provision through a locally determined formula. The regulations mainly re-enact the School Finance (England) Regulations 2008 (SI 2008/228) but there are some significant changes, relating particularly to the early years single funding formula and the incorporation of a number of grants, which were previously paid as separate grants, within the Dedicated Schools Grant. (18 February 2011)

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

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Equality

Government Equalities Office: Access to elected office for disabled people: seeks views on additional support for disabled people who wish to become elected representatives. It  also considers ways of promoting opportunities for disabled people to realise their potential to become councillors, MPs or other elected officials. The proposals include an Access to Elected Office Fund to support disability-related costs, training and a mentoring programme. The consultation closes on 11 May 2011. (16 February 2011)

Draft Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011: this draft Order, which is due to come into force on 4 April 2011, amends the Equality Act 2010 by adding to the list in Sch.19 of public authorities which are subject to the public sector equality duty under s.149 of the Act. It also adds a new Part 4 to that schedule, listing cross-border Welsh authorities that are subject to the duty. (18 February 2011)

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

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Finance

Cabinet Office: Growing the social investment market - A vision and strategy: sets out the Government’s strategy to grow the social investment market, giving charities and social enterprises access to new capital. The strategy includes setting up the Big Society Bank to attract investment from wealthy individuals, charitable foundations and ultimately socially responsible everyday savers in social ISAs and pension funds. The Bank will act as a wholesaler and use its balance sheet to co-invest, underwrite or guarantee investments along with private sources of capital. It will be an independent, private sector organisation, capitalised with a £200m injection from the largest UK banks and from dormant accounts. The Government estimates that the first year’s release in 2011 will be in the region of £60m – £100m, with the total value of dormant accounts being around £400m. Some of the Bank’s functions should be in place by April 2011, and it should be able to make the first investments using dormant account money from mid-2011. Sir Ronald Cohen and Nick O'Donohoe will advise the Government and work with the banks on setting up the Big Society Bank. (14 February 2011)

DCLG: Council tax increases in 2011-12 - capping principles: Local Government Minister Bob Neill has written to the leaders of local authorities setting out the Government's expectations of council tax increases in 2011-12. He has also informed them of the capping principles that will be in force. (10 February 2011)

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

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Highways

DfT: Freeing pedestrians from pavement parking blight: the Regional and Local Transport Minister has written to councils prompting them to use their powers to prevent parking on the pavement where it is a problem. Along with the letter, the DfT has given all councils in England permission to use signs to indicate a local pavement parking ban, removing the need to obtain special signs authorisation from Government each time they want to put a pavement parking ban in place. Local authorities with civil parking enforcement powers can enforce this ban along with the Road Traffic Act 1988 prohibition on heavy goods vehicles parking on the pavement.  (21 February 2011)

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

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Meetings

DCLG: Access to meetings: Local Government Minister Bob Neill has written to all councils urging greater openness and calling on them to adopt a modern day approach so that credible community or 'hyper-local' bloggers and online broadcasters get the same routine access to council meetings as the traditional accredited media have. His letter reminds councils that local authority meetings are already open to the general public. He also reassures councils that giving greater access to 'citizen journalists' is unlikely in the majority of cases to breach the data protection principles. (23 February 2011)

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

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Members

Planning Advisory Service: Councillor briefings - No.6: Delivery: development control to development management: the PAS has produced a series of briefings for councillors that provide basic information about the planning system and more specific requirements on particular topics. This latest briefing looks at the role that elected members can play in a positive development management process.  It covers the considerations that they will need to take on board and the way that they can help to make the most of the investment opportunities by using planning effectively. The other briefings cover topics such as localism and neighbourhood plans, probity, and decision making. (18 February 2011)

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

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Officers

Localism Bill to hand pay power to full council with £100,000 vote: the Localism Bill includes provisions requiring local authorities to approve and publish annually at Full Council a senior pay policy statement which authorities will be required to follow when setting senior pay. Where councils want to depart from the pay policy, these would need to be referred back to Full Council to vote on. The SoS has announced that he intends to issue guidance under the Bill, once enacted, on a salary ceiling at which remuneration decisions should be always brought before a full council vote, and he intends to advise that the threshold should be set at £100,000.  Relevant authorities will have to have regard to this guidance in the exercise of their functions under the pay accountability provisions; however, the guidance cannot impose any absolute requirements on local authorities or fire and rescue authorities, and the functions regarding the setting of policies remain theirs to exercise. (16 February 2011)

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

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Performance

LGG:  Taking the lead - Self-regulation and improvement in local government: sets out a seven-point approach to self regulation for the local government sector, to help local authorities strengthen their accountability and revolutionise the way they evaluate and improve services. The system does not have to be adopted by all parts of the sector and all authorities, but LGG does expect that councils will take steps to enhance the way they are held accountable locally and that they will continue to support each other, particularly through the use of peers. LGG will provide approaches to help councils with each of these two objectives and also ensure that inspection does not creep back by keeping an overview of the performance of the sector and the wider regulatory regime in which they operate. The offer also includes a number of new tools local authorities can use to explore how effectively they are delivering services, including a “Peer Challenge” which will be free of charge. It will be carried out by a mixture of local authority leaders, chief executives and directors of finance, along with people from a range of organisations including the third sector and business communities. (15 February 2011)

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

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Procurement

SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 (CA): S appealed against the High Court's ruling that its procurement challenge was brought out of time.
S was an unsuccessful bidder in GMWDA’s tendering process for a PFI project to provide waste disposal facilities for Greater Manchester that used the negotiated procedure. In January 2007, GMWDA announced that V was its preferred bidder and that S would be its reserve bidder. The contract was not actually awarded until 8 April 2009. S claimed that after GMWDA had identified the preferred bidder and entered into negotiations, V's bid changed to such an extent that, in the absence of an opportunity being given for S to re-tender, it could not be said that V's bid was the most economically advantageous. S also claimed that G had failed to afford both tenderers equal treatment and to act with appropriate transparency. S contended that GMWDA had breached the Public Contracts Regulations and, after much correspondence had passed between S and GMWDA, S issued its claim in August 2009. The High Court ruled that S’s claim should be struck out on the basis that it had been brought outside the three month time limit, applying the decision of the ECJ in Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08). The court found that S knew in April 2009 that the contract had been awarded in breach of the Regulations and the infringements it had identified in April 2009 allowed it to make the complaint it ultimately made. The fact that S later acquired knowledge of details of earlier infringements added nothing material.
The Court of Appeal held, dismissing S's appeal, that S’s claim was time-barred. The judge had applied the correct test in line with Uniplex and UK case law. S's letters showed that it was aware that GMWDA was in breach of its procurement obligations and that it had a potential claim. Nor could S rely on further breaches which later came to light - time did not start afresh where what was being relied upon to start time running again was a further breach of the same duty, whether it in fact occurred before or after the breaches already known. (24 February 2011)

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

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Wales

Welsh Assembly Government: Draft strategic development framework for Welsh libraries 2012-15: seeks views on a draft strategic document relating to developing libraries in Wales. It aims to build on the success of WAG’s Libraries for Life strategic programme (2008-11) and continue to modernise libraries and encourage more people to benefit from their services. The consultation closes on 31 March 2011. (10 February 2011)

Welsh Language (Wales) Measure 2011: this Measure has received Royal Approval. The Measure modernises the existing legal framework largely governed by the Welsh Language Act 1993 regarding the use of the Welsh language in the delivery of public services. It meets the three One Wales commitments by confirming the official status of Welsh, providing the means for establishing linguistic rights in the provision of services, and creating the post of Language Commissioner. Part 1 (Official status of the Welsh language) came into force on 9 February 2011; the remaining Parts come into force on a day or days to be appointed. (9 February 2011)

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

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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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