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Authority Update

18/05/12

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:  

   Anti Social Behaviour    Governance
   Community Engagement    Housing
   Data Protection    Legislation
   Education    Licensing
   Elections    Police Authorities
   Employment    Procurement
   Equality and Discrimination    Public Health
   Finance     Shared Services
   Fire and Rescue Authorities
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme 

 

Anti Social Behaviour

DCLG: Ten communities to tackle binge and underage drinking unveiled: announces the 10 successful bidders that will share a £1m fund over two years for projects that look at tackling the damage associated with problem drinking and aim to make their neighbourhoods safer and better places to live. (14 May 2012)

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

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Community Engagement

DCLG: Celebrating the Jubilee in all communities: announces £185,000 extra funding to help 20 more areas to organise their own Big Jubilee Lunch street parties and events. The money will be used by the Big Jubilee Lunch organisers, the Eden Project, to identify and support selected areas where there has been little or no participation to date, boosting communities' confidence to host their own event, and can be spent over two years (7 May 2012)

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

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Data Protection

ICO: Council fined £70,000 for losing highly sensitive data: reports that the Information Commissioner has issued Barnet LBC with a monetary penalty notice under s.55A of the Data Protection Act 1988. The notice requires the council to pay a penalty of £70,000 for losing paper records containing highly sensitive and confidential information, including the names, addresses, dates of birth and details of the sexual activities of 15 vulnerable children or young people. (16 May 2012)

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

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Education 

DfE: Consultation on careers guidance for schools, sixth form colleges and further education institutions: from September 2012, schools are under a duty to secure access to independent and impartial careers guidance for pupils in Years 9-11. This consultation seeks views on whether the new duty should be extended down to pupils in Year 8 and upwards to young people up to the age of 18 studying in schools, sixth form colleges and FE institutions. The DfE aims for the amended age range to come into effect from September 2013. The consultation closes on 1 August 2012. (9 May 2012)

DfE: Support and aspiration - A new approach to special educational needs and disability - progress and next steps: sets out the Government's response to the March 2011 Green Paper, current progress and the DfE's further plans for SEN reform. The plans include:

  • replacing SEN statements and separate learning difficulty assessments with a single, simpler birth to 25 years assessment process and Education, Health and Care plan from 2014;
  • every family with an Education, Health and Care plan to have the right to a personal budget for their support;
  • parents whose children have an Education, Health and Care plan to have the right to seek a place at any state-funded school, whether that is a special or mainstream school, a maintained school, academy or Free School;
  • local authorities and Clinical Commissioning Groups will have to put arrangements in place to ensure that services for disabled children and young people and those with SEN are planned and commissioned jointly;
  • all local authorities will have to publish a ‘local offer’ of  support so that parents know exactly what is available, with details of: early years, school and colleges provision and transport to and from it; social care services available; health services, including speech and language therapy; how to access specialist support; and special and specialist school provision available; and
  •  a £3m supported internships trial will be launched in 15 FE colleges this autumn for 16- to 25-year-olds with the most complex learning difficulties or disabilities, and the possibility for all colleges to offer supported internships from September 2013.

(15 May 2012)

DfE: Protection of biometric information of children in schools - Consultation on draft advice for proprietors, governing Bodies, head teachers, principals and school staff, young people, parents and representative bodies: seeks views on draft advice on the legal duties on schools and sixth form colleges if they use automated biometric recognition systems such as fingerprint identification and facial scanning. It makes it clear that schools will no longer be able to use pupils’ biometric data without parental consent. The advice is intended to come into effect in September 2013. The consultation closes on 3 August 2012. (15 May 2012)

Welsh Government: Proposals to introduce regulations for mandatory training for governors and clerks to the governing body and for local authorities to provide a clerking service for governing bodies: seeks views on proposals to introduce regulations under the Education (Wales) Measure 2011 for mandatory training for governors and clerks and provision of a clerking service. The consultation closes on 10 July 2012. (15 May 2012)

Education (Pupil Referral Units) (Application of Enactments) (England) (Amendment) Regulations 2012 (SI 2012/1201): these regulations, which come into force on 31 May and 1 September 2012, apply the Academies Act 2010 to Pupil Referral Units (PRUs), in order to create the legal framework that allows PRUs to become alternative provision Academies. They also reintroduce the statutory duty on PRUs to cooperate with local authorities to improve the well-being of children in the authority’s area. (8 May 2012)

Draft Legislative Reform (Annual Review of Local Authorities) Order 2012: this Order, once in force, repeals s.138 of the Education and Inspections Act 2006 and so removes HM Chief Inspector of Education’s duty to carry out an annual review and rating of local authority children’s services. The effect of the Order is also to remove the requirement for Ofsted to undertake annual children’s services assessments. (11 May 2012)

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

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Elections

Electoral Registration and Administration Bill: this Bill has been introduced into the House of Commons and received its 1st Reading. The Bill implements proposals in the June 2011 White Paper to introduce individual electoral registration and to tackle electoral fraud. It also includes provisions in relation to the administration and conduct of elections, which are intended to improve the way elections are run, increase voter participation, and further improve the integrity and robustness of the electoral system.(10 May 2012)

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

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Employment

Welsh Government: Working together for Wales - The public service workforce: seeks views on proposals to deliver the ambitions set out in the Welsh Government's Strategic Framework for the Public Service Workforce in Wales, including:

  • Statutory guidance on matters affecting the devolved public service workforce, including a process to govern the adoption of agreements which arise out of the Workforce Partnership Council; 
  • a duty on devolved public service organisations to promote and apply partnership working as it affects workforce matters; and 
  • a Two-Tier and TUPE Code for devolved public services organisations in Wales.

The consultation closes on 31 July 2012. (8 May 2012) 

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

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Equality and Discrimination

Home Office: Equality Act 2010 - Consultation on employer liability for harassment of employees by third parties: seeks views on proposals to repeal s.40(2)-(4) of the Equality Act 2010 which makes employers liable for harassment of their employees by third parties over whom they do not have direct control, such as customers or clients. The consultation closes on 7 August 2012. (15 May 2012)

Home Office: Equality Act 2010 - Consultation on repeal of two enforcement provisions: seeks views on proposals to reduce burdens on business by repealing two measures within the Equality Act 2010: employment tribunals’ power  under s.124(3)(b) to make wider recommendations in discrimination cases; and the procedure for obtaining information (s.138). The consultation closes on 7 August 2012. (15 May 2012)

In addition to these two consultations, the Home Secretary has also announced in a Written Ministerial Statement that the Government intends to review the Public Sector Equality Duty under s.149 of the 2010 Act to establish whether this is the best way to ensure that public bodies consider the impact of their decisions on different groups. It will also proceed with repealing the Socio-Economic Duty in s.1, which would have forced public bodies to consider class-based inequality when developing policy. (15 May 2012)

R (Essex CC) v Secretary of State for Education (Unreported, Admin Ct): the Council applied for judicial review of the SoS's decision to reduce the amount of unspent capital grant funding that could be carried over into the next financial year. The SoS notified the Council that he was cutting funding for nursery and schools building projects where funds had not already been "committed". He then determined that funds would only be classed as committed where a building contract had been entered into. The Council contended that the SoS had failed to consult about the criteria for committed expenditure, the criteria were irrational, and he had failed to fulfil his equality duties in considering the impact of his decision.
The court held, granting the application, that the SoS had no obligation to consult about the precise criteria to be used nor was there a procedural legitimate expectation. Given the nature of the SoS's exercise, namely the urgent saving of costs, the identified criterion could not be described as irrational. However, the SoS had not fully discharged his duties under the Race Relations Act 1976 and the Disability Discrimination Act 1995 by evaluating the impact of the measures on the relevant disadvantaged groups. The court ordered that his decision be quashed and be retaken insofar as he was to give effect to his equalities duties; the other aspects of his decision were lawful. (17 May 2012)
The judgment is available on Lawtel (password required).

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

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Finance

DCLG: Business rates retention scheme: the Local Government Finance Bill currently before Parliament introduce a business rates retention scheme that will enable local authorities to retain a proportion of the business rates generated in their area, with the aim of giving local authorities a strong financial incentive to promote local economic growth. DCLG has published a number of technical papers that give details of the scheme:

  • The economic benefits of local business rates retention;
  • Pooling prospectus: sets out the opportunities that pooling presents for local authorities under the business rates retention scheme, the process for formally designating pools, and invites local authorities to come forward with their pooling proposals by the end of July 2012;
  • Renewable energy projects - A statement of intent: sets out the way in which the Government intends to define renewable energy projects in line with the Government's policy intention that business rates paid in respect of such projects should be kept fully by the local authorities within whose areas the projects are situated;
  • The Safety Net and Levy - A statement of intent: information about the Government's current proposals for the content of the regulations it will make about the operation of the levy and safety net elements of the rates retention scheme; and
  • The central and local shares of business rates - A statement of intent: sets out how locally collected business rates will be shared between central and local government. It details the grants from central government to local authorities that will be included within the rates retention scheme. It states that Government does not intend to reset the system until 2020 at the earliest, except in exceptional circumstances.

 (17 May 2012)

DCLG: Localising support for council tax - Funding arrangements consultation: The Local Government Finance Bill includes provisions for local council tax support schemes in England. This document seeks views on the Government's plans to distribute funding to support local schemes and on possible adjustments to allocations to avoid potential budgetary pressures in a few authorities. The consultation closes on 12 July 2012.
Alongside the consultation, DCLG has published a technical paper Localising support for council tax: A statement of intent that sets out the proposed policy for the key regulations to be provided under the Local Government Finance Bill. (17 May 2012)

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

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Fire and Rescue Authorities

Fire and Rescue Authorities (Improvement Plans) (Wales) Order 2012 (SI 2012/1143 (W.137)): this Order, which comes into force on 21 May 2012, provides that a Welsh fire and rescue authority must publish its improvement plans under the Local Government (Wales) Measure 2009 as soon as is reasonably practicable after 31 December in the year prior to the financial year to which the improvement plan relates. It applies to financial years from 2013/14 onwards, so Welsh fire authroities must publish their first improvement plans on or soon after 31 December 2012. (25 April 2012)

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

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Governance

SOLACE: Codifying the relationship between Central and Local Government: seeks views on the HC Political and Constitutional Reform Committee's draft code on the principles and mechanics of the relationship between central and local government, In order to inform SOLACE's response to the consultation. This briefing note provides a background to the draft Code and sets out some questions to prompt respondents' thinking. The closing date for comments is 15 June 2012. (30 April 2012)

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

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Housing

DCLG: Accelerating the release of surplus public sector land - Progress report one year on: the 2011 Budget  included a commitment from the Government to accelerate the release of public sector land and set an ambition to release enough land to build up to 100,000 homes by 2015. This report sets out the progress made in the past year towards meeting this ambition. It also describes the support mechanisms that have been put in place to help departments dispose of land and the next steps for the Programme in the coming year. (7 May 2012)

DCLG: Revamped Right to Buy to deliver thousands of new homes: in March the Government launched the revamped Right to Buy, which will give social tenants the opportunity to buy their home with discounts of up to £75,000. Local authorities will be able to retain the receipts for replacement housing, provided they can sign up to an agreement with Government that they will limit the use of the net Right to Buy receipts to 30% of the cost of the replacement homes. Following discussions, DCLG has extended the timeframe for spending the receipts from two years to three. (15 May 2012)

DCLG: Streamlining council housing asset management - Disposals and use of receipts: Government response to consultation:  summarises the responses to the August 2011 consultation on the Government's proposals to liberalise the regime under which local authorities must first seek the consent of the Secretary of State before being able to dispose of a housing asset and simplify the regulations governing the use of receipts arising from such disposals. The document sets out how DCLG intends to proceed with each of the proposals. (18 May 2012)

DCLG: The General Housing Consents 2012 - Section 32 of the Housing Act 1985: these General Consents prescribe those situations where the specific consent of the Secretary of State is not required before a local authority can dispose of housing assets. This updated version takes account of changes resulting from the "Streamlining council housing asset management" consultation (above). (18 May 2012)

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

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Legislation

Queen's Speech 2012: the Queen has outlined the Coalition Government’s legislative programme for the next year, on the State Opening of Parliament. Proposed Bills of particular interest to local government include: 

  • Children and Families Bill: covers many areas including special educational needs, adoption, family law and parental leave. SEN statements and Learning Difficulty Assessments will be replaced with a single, simpler 0-25 assessment process and Education, Health and Care Plan from 2014. Changes to the rules on adoption will make race considerations less important than finding a child a permanent home quickly. Families will get more choice on education for pupils with special educational needs. Parents will be given access to flexible leave to allowing greater sharing of caring responsibilities. On family law, there will be a six month deadline to complete care cases and if families break up, the law will be strengthened to make sure children continue to have a relationship with both parents if it's in their best interests. All the changes will apply to England, but some such as flexible working will also apply to Scotland and Wales. On adoption, the Government says it will discuss with the Welsh government about extending the reforms into Wales;
  • Electoral Registration and Administration Bill: introduces individual voter registration and makes it easier for people to register to vote. The new registration system is due to be in place by the end of 2015;
  • Public Service Pensions Bill: implements reforms to public sector pensions. Moves public sector pensions over to a career average scheme and extends the age at which members can draw their pensions;
  • Draft Local Audit Bill: aims to save money and increase local accountability and transparency in England. Abolishes the Audit Commission and sets out new arrangements for the audit of local public bodies; and
  • Draft Care and Support Bill: will modernise the legal framework for care and support, to support the vision of the forthcoming White Paper on care and support responding to the recommendations of the Law Commission's review into social care law. It will include giving people greater choice and making councils adapt the services they offer to people's needs and experiences.

For more details, see the LGA's On the Day briefing and the Cabinet Office's briefing notes. (9 May 2012)

Local Government (Wales) Measure 2011 (Commencement No. 2 and Saving Provisions) Order 2012 (SI 2012/1187 (W.145) (C.40)): this Order brings many of the provisions in the 2011 Measure into force in Wales on 30 April 2012. (29 April 2012)

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

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Licensing

Law Commission: Reforming the law of taxi and private hire services: seeks views on reform of the legal framework relating to taxis and private hire vehicles so as to clarify and simplify the existing law and to promote more consistency in bottom-line safety standards across England and Wales, including better provision for disabled passengers. The proposals retain the distinction between taxis, that can be hailed from teh street, and private hire vehicles, which must be pre-booked, but there would be national minimum safety standards in place of the current local regulations thus enabling a private hire firm, once appropriately licensed, to work freely across the country without geographical restrictions. The consultation closes on 10 August 2012.  (10 May 2012)

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

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Police Authorities

Home Office: The case for police reform: this letter from the Deputy Pirme Minister to police officers sets out the Government's police reform agenda. He outlines the Government's support for police officers and sets out plans for the creation of a Police Professional Body to ensure that officers have the right skills and training for the future. (10 May 2012)

LGA: Police and Crime Commissioners' Association - Prospectus: Police and Crime Commissioners (PCCs) will be elected in 41 police force areas across England and Wales on 15 November 2012, replacing police authorities which will be abolished a week later. The LGA is establishing the national representative body for PCCs, the Police and Crime Commissioners' Association (PaCCA). This Prospectus sets out the LGA's comprehensive package of support and services for PCCs that will also benefit councils and ultimately local communities. (11 Mayy 2102)

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

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Procurement

OFT: Street furniture advertising - Recommendations to local authorities: between February 2011 and April 2012 the OFT investigated the compatibility of current street furniture advertising contracts in the UK with competition law. As a result of the assurances it has received from Clear Channel UK and JCDecaux, the OFT has now closed its investigation. This note provides information for local authorities following the closure of the investigation, with a brief background on the investigation and the voluntary assurances. It also makes recommendations for ways in which local authorities might procure street furniture advertising in future in order to encourage greater competition. These recommendations are not legally binding on local authorities. (17 May 2012)

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

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Public Health

New Local Government Network: Healthy places - Councils leading on public health: this report report warns that the Government’s radical public health reforms could stall unless new Health and Wellbeing Boards are given greater legislative clout. It argues that to succeed, the new boards need to be able to influence everything from social care and planning to school immunisations and housing. It also finds scepticism among local authorities about whether the boards can survive on ‘soft power’ alone, combined with concerns about a potential lack of public engagement in the work of the new institutions. (15 May 2012)

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

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Shared Services

WLGA: Legal guidance for collaboration: the Local Government (Wales) Measure 2009 requires local authorities to make arrangements to secure continuous improvement in the exercise of their functions, and gives them powers to collaborate with others (including other local authorities) to discharge those duties. Local authorities must also consider whether using their collaboration powers will help deliver continuous improvement. In addition, the Local Government (Wales) Measure 2011 empowers Welsh Ministers to amalgamate two or three local government areas if they are satisfied that it is necessary to achieve effective local government and that effective local government is not likely to be achieved by the relevant local authorities exercising their powers to collaborate under  the 2009 Measure. This guidance explains the legal implications of collaborative working between Welsh local authorities. (26 April 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.

Forthcoming seminars include:

For a list of all Bevan Brittan seminars see the Events page on our website. To book a place, please register your interest via our website.

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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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