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Authority Update

20/04/12

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 four 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    Governance
   Adult Social Services    Health and Social Care
   Audit    Housing
   Children's Services    Maladministration
   Community Rights    Overview and Scrutiny
   Education    Performance
   Employment    Procurement
   Fire and Rescue Authorities    Standards
   Localism Act 2011 Commencement Table (as at 6 April 2012) 
   Bevan Brittan's Local Government Training Programme 

 

Access to Information

DH: 'Striking the balance' - Practical guidance on the application of Caldicott Guardian Principles to domestic violence and MARACs (Multi Agency Risk Assessment Conferences): this guidance assists those involved in information sharing between agencies on highest risk cases of domestic abuse. It sets out the the underlying ethical considerations so that tensions between confidentiality and information sharing may be resolved, highlighting the balance between maintaining the individuals’ confidentiality and privacy and wider considerations such as protection from harm. (16 April 2012)

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 (Okil) v Southwark LBC (Unreported) (Admin Ct): O, an Algerian national who had been diagnosed with borderline personality disorder and post-traumatic stress disorder, applied for judicial review of the authority's decision that he did not qualify for residential accommodation under s.21(1)(a) of the National Assistance Act 1948 as a person in need of "care and attention". After O was evicted from his accommodation, the National Asylum Support Service arranged alternative accommodation in Plymouth, but O refused to go as he wanted to remain in London, and he applied to the authority for accommodation. The authority assessed O's mental health and social needs and concluded that he was not entitled to accommodation under s.21(1)(a).
The court held, refusing O's application, that  "care and attention" entailed "looking after" and expressly excluded medical treatment. Although the authority's assessment had been primarily concerned with O's need for mental health treatment, that did not mean that the local authority had not also considered his need for non-medical care and attention, as the two were closely associated. It had been entitled to conclude that O had been adequately managing the practicalities of day-to-day life and that his outbursts and threats of self-harm had been merely a response to his unsatisfactory immigration situation. Its decision was rational and legitimate. (20 April 2012)
The judgment is available from Lawtel (password required).

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

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Audit

Audit Commission: Work programme and scales of fees 2012/13 - Local government: April 2012: sets out the work that the Audit Commission plans to undertake at local government, fire and police audited bodies during 2012/13, with the associated scales of audit fees. The document does not cover probation trusts, which from 2012/13 come within the remit of the National Audit Office. The Commission states that the combination of outsourcing its in-house Audit Practice and internal efficiency savings means that it is able to pass on significant reductions in audit fees this year to audited bodies. See also the table of Individual fees for local government and fire authorities. These lower fees are fixed for five years irrespective of inflation. (11 April 2012)

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

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Children's Services

DfE: Review of Regulations and National Minimum Standards for residential family centres: seeks views on amended Regulations and National Minimum Standards (NMS) that govern centres where parents undergo a residential assessment of their ability to care effectively for their children. The amendments increase the focus on the quality and effectiveness of the service provided to families, supporting ongoing improvement and development of the Centres, and decrease the focus on the organisation and management of the centres, removing prescription and increasing professional flexibility. The consultation closes on 3 July 2012. (10 April 2012)

Ofsted: Children's social care registration - Introduction to children's homes: children’s home providers and managers must meet a range of legal requirements, including a requirement to register with Ofsted. This updated guide explains what an applicant must understand and prove in order to become registered to provide and/or manage a children’s home. Ofsted also expects providers and managers to show how they have taken account of the national minimum standards for children’s homes and The Children Act 1989 Guidance and Regulations Volume 5: Children’s Homes. (12 April 2012)

Ofsted: Fit person questionnaires - registered manager and registered provider or responsible individual:  to manage or run a children’s social care establishment or agency, a person needs to have a good understanding of their responsibilities under the regulations, national minimum standards and statutory guidance.  These questionnaires are for Ofsted to assess fitness of applicants to be registered as a manager of an adoption support agency, a children’s home, an independent fostering agency, or a residential family centre. (12 April 2012)

Welsh Government: Guidance to local authorities on assessing for and securing sufficient play opportunities for children in their areas: seeks views on draft guidance to local authorities on fulfilling their duties on play opportunities under s.11 of the Children & Families (Wales) Measure 2010. This duty is underpinned by the Children and Families (Wales) Measure 2010 (Play Sufficiency Assessment) Regulations 2012, due to come into force on 2 November 2012, that set out what matters a local authority should take into account when assessing whether there are sufficient play opportunities for children in its area. The consultation closes on 25 June 2012. (13 April 2012)

Ofsted: Framework for the inspection of local authority arrangements for the protection of children: this updated document outlines the framework for the inspection of local authority arrangements to protect children, including the effectiveness of early identification and help for children, young people, their families and carers. These inspections will focus on the effectiveness of the local authority’s child protection services, and the local authority’s leadership of strategic partners in their shared work to help and protect children and young people who are suffering, or likely to suffer, harm from abuse or neglect. (16 April 2012)

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

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Community Rights

DCLG: An introduction to the Community Right to Build: the Community Right to Build was introduced under the Localism Act 2011 and came into force on 6 April 2012. It enables local people to bring forward small scale, site specific, community-led developments. Development proposals have to meet minimum criteria and have the agreement of more than 50% of local people that vote through a community referendum. This booklet explains how the new right will work. (10 April 2012)

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

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Education

DfE: Ensuring good behaviour in schools: summarises the legal powers and duties that govern behaviour and attendance in school and explains how they apply to teachers, governing bodies, pupils and parents. Head teachers are responsible for developing the behaviour policy in the context of this framework. (30 March 2012) 

DfE: Additional local authority capital allocations for 2012-13 - £600 million basic need funding: gives details of the allocation of additional £600m capital basic need funding for schools in England that was first announced in the Autumn Statement 2011. The money is directed at the 110 local authorities that show a shortfall in pupil places in 2013-14. It is additional to the 2012-13 allocations that were announced in December 2011. (11 April 2012)

DBIS: Community Learning Trust pilots - Prospectus:  New challenges, new chances - Further education and skills system reform plan: invites community learning providers to become Community Learning Trust pilots that will channel Community Learning funding and lead the planning of local provision. The Government is planning to select between 10 and 15 pilots to begin work in August 2012, supported by NIACE. Applicants must be organisations such as adult education services and FE colleges that are funded from the Skills Funding Agency's Community Learning budget, in collaboration with local community organisations, businesses and services. All the pilots will be expected to demonstrate how they will generate income in addition to the public subsidy and show how local people are taking a lead. If the pilot approaches are successful, trusts will be rolled out more widely from 2013. The closing date for applications is 25 May 2012. (11 April 2012)

ADCS: The missing link - The evolving role of the local authority in school improvement: this position statement builds upon the findings from two research reports commissioned to help explore the implications of an increasing number of academies, focusing on what is the local authority's role in ensuring that every child receives a suitable and high-quality education. It contains recommendations for local authorities and for the Department for Education. The full reports, Schools causing concern – a research project and The future role of the local authority, include case studies of successful authorities and some examples of the different models of school engagement that are emerging. (12 April 2012)

School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033): these regulations, which come into force on 1 September 2012, make provision in relation to the power of head teachers of maintained schools, teachers in charge of pupil referral units and principals of Academy schools and alternative provision Academies to exclude pupils under s.51A of the Education Act 2002. They limit to 45 the number of days in a single school year that a head teacher can temporarily exclude a pupil, in line with the current requirements. They also set out procedures that the head teacher, governing body, local authority and Academy Trust must follow in relation to the exclusion of a pupil from a school and specify the constitution and procedures to be followed by exclusion review panels. The review panels replace the current exclusion appeals panels and have different powers. (13 April 2012)

DfE: Taylor review on improving school attendance: this is the final report of Charlie Taylor's review of school attendance and the problem of truancy. He finds that there is clear evidence of a link between poor attendance at school and low levels of achievement. Although some schools go to great lengths to tackle attendance issues, more work needs to be done to reduce the number of pupils who are still persistently absent. The best primary schools take a rigorous approach to poor attendance from the very start of school life as they realise that the earlier they address poor attendance patterns, the less likely it is that this will become a long term issue. He makes a number of recommendations, including:

  • making data on attendance in reception classes available along with local and national averages, in line with the Government’s policy of giving as much information as possible about school performance;
  • publishing national statistics on attendance for the whole year not just up until half term in the summer;
  • asking Ofsted to set specific, timed targets for improving attendance in schools where it is low;
  • encouraging all primary schools to analyse their data on attendance so that they can quickly pick up on children who are developing a pattern of absence including in nursery and reception; and
  • whilst there should be no outright ban on term-time holidays and with headteachers having the discretion, the Government should toughen up the rules.

The Government states that it will amend the  Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751) to make clear that schools should only give permission to term-time holidays where there are exceptional circumstances. (16 April 2012)

School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034): these regulations, which come into force on 1 September 2012, set out the arrangements for the constitution of governing bodies of maintained schools (including maintained nursery schools) in England. They provide that the minimum size of a governing body shall be seven members, rather than nine as at present, and set out the categories of governor of which all maintained school governing bodies must comprise, including such number of co-opted governors as the governing body considers necessary. It is intended that these governors will be recruited principally on the basis of their skills. The regulations revoke and replace the Constitution Regulations 2007 (SI 2007/957); however, the 2007 Regulations continue to apply to a governing body constituted under an instrument of government that takes effect before 1 September 2012 until that governing body decides to vary its instrument of government. (19 April 2012)

School Governance (Federations) (England) Regulations 2012 (SI 2012/1035): these regulations, which come into force on 1 September 2012, set out the arrangements for the constitution of federated governing bodies. They also set out the circumstances in which a federation can be establsihed, the procedure for federation, and for discontinuance and dissolution. The regulations revoke and replace the Federation Regulations 2007 (SI 2007/960); however, the 2007 Regulations continue to apply to a federated governing body constituted under an instrument of government that takes effect before 1 September 2012 until that governing body decides to vary its instrument of government. (19 April 2012)

School Information (England) (Amendment) Regulations 2012 (SI 2012/1124): these regulations, which come into force on 1 September 2012, amend SI 2008/3093 so as to remove the requirement on governing bodies of maintained schools to publish a school prospectus annually. Instead, they introduce a new requirement for schools to publish specified information online. (20 April 2012)

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

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Employment

Camden LBC v Pegg (Jurisdictional Points : Worker, employee or neither) [2012] UKEAT 0590_11_1304 (EAT): P was supplied by a employment agency to CLBC for the role of Senior School Travel Planning Officer. Her agreement with the agency was described as a contract for services; it did not require her to take any assignment but placed obligations on her to work once she had accepted an assignment. After her psychiatric health deteriorated, her assignment was terminated. She claimed that she had been subjected to disability discrimination. CLBC contended that because P was not under an obligation to take the assignment with the authority, she was not under an obligation to do work personally and not an employee within the extended definition in s.68(1) of the Disability Discrimination Act 1995. The Employment Tribunal found that: the agency was P’s employer within the extended definition in s.68(1); she was a contract worker; and CLBC was her principal within the meaning of s.4B(9) of the 1995 Act. CLBC appealed, arguing that P was not party to a contract “personally to do any work”, because she was not bound to accept any assignment.
The EAT held, dismissing the appeal, that the Tribunal's decision was correct. Once P had accepted the assignment with CLBC she owed express contractual duties to the agency which required her to do the work personally and the agency paid her. That was sufficient to bring her within s.68 and she was not excluded from that provision merely because she was not bound to accept the assignment. The critical point was that when she accepted the assignment she owed a contractual duty to the agency to do the work personally. Such arrangements were common, and there was no doubt that Parliament intended the protection for contract workers to apply to such workers. (13 April 2012)

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

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Fire and Rescue Authorities

Welsh Government: Fire and Rescue National Framework for Wales 2012: this Framework, prepared under s.21 of the Fire and Rescue Services Act 2004, sets out the Welsh Government’s vision and priorities for the three Fire and Rescue Authorities in Wales. It describes what the Welsh Government expects of the FRAs and sets the FRAs’ role in the context of the wider public sector. This Framework creates the foundation on which to build and promote innovative solutions, recognising expertise, sharing resources and enhancing capacity across FRAs and with the wider public sector. Its two key themes are a focus on measuring outcomes for citizens and how collaboration supports this agenda. The Framework comes into force on 20 April for the period 2012 onwards. (27 March 2012)

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

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Governance

Warwick Commission: Elected mayors and city leadership: the Warwick Commission was launched last year to investigate the track records and experiences of elected mayors in the UK and around the world. This summary report looks at the role of elected mayors in providing strategic leadership to cities. It warns that the Government's drive to encourage cities to adopt elected Mayors cannot provide a 'one-size-fits-all' solution. It also supports calls for Mayors to have a formal remit that extends beyond the city boundaries which are currently being proposed in referenda in ten core English cities. (16 April 2012)

Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2012 (SI 2012/1019): these regulations, which come into force on 4 May 2012, provide for local authorities operating either Mayor and Cabinet or Leader and Cabinet executive arrangements under s.9C LGA 2000 to make arrangements for the discharge of their functions by another local authority, by the executive of another local authority, or jointly with other local authorities. They revoke SI 2000/2851 (as amended). The Explanatory Memorandum states that these new regs "largely mirror the provisions of the 2000 Regulations with which local authorities are already familiar, so the Regulations are considered to be self explanatory and there is no intention to issue separate guidance". (10 April 2012)

Local Authorities (Committee System) (England) Regulations 2012 (SI 2012/1020): these regulations, which come into force on 4 May 2012, apply to local authorities which operate the committee system form of governance under Part 1A LGA 2000. They set out the functions of such local authorities which cannot be delegated and make provision for overview and scrutiny in those authorities choosing to appoint one or more Overview and Scrutiny Committees. They revoke the Alternative Arrangements Regulations (SI 2001/ 1299). (10 April 2012)

Localism Act 2011 (Local Authority Governance Transitional Provisions) (England) Order 2012 (SI 2012/1023): makes transitional provision for those local authorities currently operating alternative arrangements or the Leader and Cabinet executive forms of governance, as a consequence of changes under the Localism Act 2011 that removed alternative arrangements as a possible form of governance for local authorities and also made changes to elections and terms of office of executive leaders. The Order provides that local authorities operating alternative arrangements are, from 4 May 2012, to be treated as operating the committee system instead. The Order also makes transitional provision to the effect that the old provisions relating to the executive leader’s terms of office and elections are preserved until such time as the local authority makes it own provision in its executive arrangements. (10 April 2012)

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

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Health and Social Care

The King's Fund: Health and Wellbeing Boards - System leaders or talking shops?: this report from the health thinktank is based on a survey of how 50 local authorities and their health partners are implementing the new Health and Wellbeing Boards. It sets out the findings from that survey, and presents case studies based on the experience of two early implementers, Lambeth and Surrey, that each faced very different circumstances. The report  identifies real optimism about the prospects for success, with almost all those surveyed expecting Boards to deliver on their identified priorities and promote closer integration between the NHS and local authorities. (12 April 2012)

NHS Networks: Working with LINks and local HealthWatch: this is one of a series of 10 Smart Guides to Engagement that give practical advice to Clinical Commissioning Groups (CCGs) about the value of patient and public engagement. The guide discusses how CCGs can build constructive relationships with councils and community organisations to improve health and wellbeing and local services. (18 April 2012)

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

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Housing

HM Treasury / DCLG: Consultation on reforms to the real estate investment trust (REIT) regime: the Government announced in the March 2012 Budget that it would undertake a consultation to explore the role that REITs can play in supporting the social housing sector; and whether to change the tax treatment of income received by a REIT when it invests in another REIT. This joint consultation seeks views on options for adapting the existing REIT regime to support the creation of a social housing real estate investment trust business model (e.g. a real estate investment trust whose property includes social housing), which may offer social housing providers an alternative source of financing to fund their future housing developments. It also examines proposals, and their associated risks and benefits, for real estate investment trusts investing in REITs. The consultation closes on 27 June 2012. (4 April 2012)

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

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Maladminstration

DCLG: Local government ombudsman to champion residents' cause: announces that Dr Jane Martin has been designated as Chairman of the Commission for Local Administration in England (the Local Government Ombudsman) and Anne Seex as Vice-Chairman, as part of the Government's plans to create a more streamlined Local Government Ombudsman that will deliver a more cost effective organisation and to make sure that the Ombudsman is well placed to provide services that support citizens' needs, with a particular emphasis on consumer champions as envisaged in the Open Public Services White Paper. (16 April 2012)

Education Act 2011 (Commencement No. 4 and Transitional and Savings Provisions) Order 2012 (SI 2012/1087 (C.33)): this Order brings a number of provisions in the 2011 Act into force on 1 August 2012 and 1 September 2012. The provisions coming in on 1 August include s.45 that repeals the LGO's jurisdiction under the Apprenticeships, Skills, Children and Learning Act 2009 to consider complaints from parents and pupils about maintained schools. (12 April 2012)

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

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Overview and Scrutiny

Local Authorities (Overview and Scrutiny Committees) (England) Regulations 2012 (SI 2012/1021): these regulations, which come into force on 4 May 2012, give Overview and Scrutiny Committees power to obtain information from their relevant partner authorities, and to ensure that executives of local authorities exclude confidential information when publishing their responses to reports and recommendations of Overview and Scrutiny Committees. They revoke the Overview & Scrutiny Regulations (SI 2009/1919). (10 April 2012)

Overview and Scrutiny (Reference by Councillors) (Excluded Matters) (England) Order 2012 (SI 2012/1022): this Order, which comes into force on 4 May 2012, specifies certain categories of matters which are excluded matters under s.9FC LGA 2000, and therefore cannot be referred to the Overview and Scrutiny Committee by a councillor who is not a member of that committee. Section 9FC(5) defines "excluded matter" as any matter which is a local crime and disorder matter under s.19 of the Police and Justice Act 2006 or any matter that the Secretary of State has specified as excluded by order. This Order excludes issues relating to individual planning and licensing decisions and issues which are vexatious, discriminatory or not reasonable to include in the agenda for, or to be discussed at, a meeting of the Overview and Scrutiny Committee or any of its sub-committees. It also excludes issues relating to individuals or entities where there is already a right to a review or appeal (other than the right to complain to the LGO). However, a councillor can refer an allegation that there has been a systematic failure by the authority in relation to a function, even if it relates to an otherwise excluded matter. (10 April 2012)

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

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Performance

DCLG: Single data list 2012-13: sets out all the datasets that local government must submit to central government following the abolition of Comprehensive Area Assessment and National Indicators. The new list shows a reduction in demands from 193 data collections in 2011-12 to 156 this year. (11 April 2012)

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

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Procurement

Public Services (Social Value) Act 2012: this Act has received Royal Assent and comes into force on a day (or days) to be appointed. It brings in a statutory requirement for public authorities to have regard to economic, social and environmental well-being in connection with public services contracts and for connected purposes. It aims to strengthen the social enterprise business sector and make the concept of 'social value' more relevant and important in the placement and provision of public services. Note that the Act only applies to contracts for services, not to public works or public supplies contracts. (8 March 2012)
For a commentary on the Act, see our article The Public Services (Social Value) Act 2012.

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

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Standards

DCLG: Illustrative text for local code of conduct: DCLG has published this example code as an illustration what a new Code of Conduct might look like, now that the Standards Board regime has been abolished under the Localism Act 2011. The new Code is a matter for local determination but councils can, if they choose, use this as a basis for their new local Code of Conduct. (11 April 2012)

The LGA, ACSeS and SOLACE have also issued a Template Code of Conduct that is based on the Nolan Principles, following negotiations between officers, members and other professional bodies. The template has been produced in anticipation of new provisions governing the conduct of elected and co-opted members in local government, expected to come into force on 1 July 2012.

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.

For a list of all Bevan Brittan seminars see the Events page on our website. If you wish to attend an LGG seminar that we are hosting at our offices, please book with LGG direct.

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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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