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:

   Adult Social Services    Housing
   Byelaws    Leisure and Recreation
   Children's Services    Officers
   Community Engagement    Procurement
   Education    Regulatory Services
   Enforcement    Standards
   Environmental Protection    State Aid
   Equality    Wales
   Health and Social Care  
   Bevan Brittan's Local Government Training Programme


Adult Social Services

DH: Use of resources in adult social care - a guide for local authorities: this guide is a discussion document for commissioners of services. It aims to encourage local authorities to continue to use new ways of working that enable people to remain in their own homes for longer and in more cost-effective ways. It includes examples of excellent practice from local authorities that have already demonstrated good use of resources across the provision of adult social care services, and offers a range of evidence to help local authorities continue the move to support people in their communities and to continue the trend of reduced use of residential care. (15 October 2009)

DH: A summary of changes to direct payments: sets out changes to the direct payment scheme that will take effect from 9 November 2009. The changes will extend the scheme to people who lack the capacity to consent and people with mental health problems who are subject to mental health and certain criminal justice legislation. (19 October 2009) 

DH: Charging for residential care: the property disregard and partners under 60: this letter to local authority chief executives seeks views on a proposal to amend the National Assistance (Assessment of Resources) Regulations 1992 (SI 1992/2977) to reflect the longstanding policy and practice of disregarding property where a partner aged under 60 continues to reside in the family home. The consultation closes on 26 November 2009. (26 October 2009)

Audit Commission: Means to an end - joint financing across health and social care: this report reviews the joint financing and integrated care arrangements between NHS bodies and councils with adult social care responsibilities. It considers how these arrangements are used, focusing on learning disability, mental health and older people - areas where service users most often need health and social care. The report includes examples of good practice. (29 October 2009)

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

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DCLG: Communities in control: real people, real power - Government response to the making and enforcement of byelaws: summarises the responses to the 2008 consultation that sought views on changing the way in which byelaws are made and enforced. The Government proposes to introduce the proposed new byelaw-making procedure that will enable certain authorities to make byelaws without confirmation by the Secretary of State; instead there will be extensive consultation on the proposed byelaw, ensuring that those affected by any new byelaw have an opportunity to comment upon it. Byelaws will be enforced by fixed penalty notices instead of through the magistrates' courts. (27 October 2009)

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

R (Webster) v Swindon Local Safeguarding Board (Unreported) (Admin Ct): W, a white pupil aged 15 years, was attacked with a hammer by a group of Asian individuals and sustained serious injuries. 12 people were convicted of various offences, some of whom were pupils of the school while some were older men called in by the pupils. W's mother pressed the LSB for a wide ranging inquiry, but  no serious case review (SCR) was ordered. Following intervention from the SoS, the LSB met and agreed to carry out an SCR but , in view of W's ongoing civil proceedings against the school, ruled that the SCR should be limited to the events following the assault and identifying what lessons could be learnt. The school refused to cooperate with the LSB due to the position adopted by its public liability insurers. W applied for judicial review of the LSB's decision.
The court held, granting the application, that the LSB was wrong to limit the scope of the SCR. The assault brought in the statutory criteria for an SCR and that review should have taken place promptly. The LSB should have promptly initiated a review and its limitation to the events following the assault stripped the exercise of any practicable value. The LSB did not have a substantiated reason to defer the matter further. Whilst the civil claim might overlap the SCR, it was not reasonably necessary to wait before having a full review. It was also wrong for Parliament's intention to be frustrated by the stance taken by the school's public liability insurers. (22 October 2009)

R (S) v Hampshire CC [2009] EWHC 2537 (Admin) (Admin Ct): S, an 11 year old who was severely disabled and had serious behavioural difficulties, applied for judicial review of the council's decision not to provide services for him as a child in need. S contended that the council's core assessment report had been unlawful, procedurally unfair and discriminatory. The court held, refusing the application, that S had an adequate alternative remedy which had not been pursued. The complaints procedure for core assessment reports was there to provide a speedy, informal and cheap method of resolving disputes, and that was the appropriate route by which to notify the council of points of dispute and to seek to have them resolved. In addition, S had also failed to comply with the pre-action protocol in relation to the assessment, and had made no attempt whatsoever to seek to avoid litigation. There was never any adequate opportunity for the council to consider and respond to points of dispute before the proceedings were launched. (22 October 2009)

Audit Commision: Children's trusts - A briefing paper on improving financial management: provides practical guidance on improving financial management in children's trusts. It supports the Commission's national report 'Are we there yet?', presenting the findings of research into the progress that local councils and their partners are making in developing children's trusts. (23 October 2009)

DCSF: Budget holding lead professional pilots in multi-agency Children's Services in England: National evaluation: presents the findings from research by Newcastle Uiversity that assessed the benefits of enabling lead professionals to control budgets for commissioning and purchasing support services for children and young people with additional needs, and looked at the costs of establishing budget holding lead professional practice and its impact on resource use. (29 October 2009)

Ofsted: How to appeal - guidance for people applying to provide and those registered to provide childcare or children's social care: explains how and when someone applying to provide or already registered to provide childcare or children’s social care can appeal against Ofsted's decision to take steps that affect registration.
There is also separate guidance for someone applying to register as, or already registered as, a childcare provider, on how to object to Ofsted's intention to take steps that will affect registration. (29 October 2009)

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

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Community Engagement

DCLG: Take Part: this web page gives information on the Take Part pathfinder programme, which aims to give people the skills, knowledge and confidence they need to have more of a say about what happens in their areas, and to help shape the decisions that affect their daily lives. 18 local authority partnerships are Take Part pathfinders that are currently running programmes of training, information and support. (19 October 2009)

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

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R (M) v Independent Appeal Panel of Haringey and Haringey LBC [2009] EWHC 2427 (Admin) (Admin Ct): M applied for judicial review of the Appeal Panel's decision that her child, C, should not be admitted to the school of parental choice. M had applied for C to be placed in a particular school which was popular and oversubscribed. Because of problems connected with local criminality, attendance at any nearby school could have lead to violence, threats, bullying and other adverse consequences for C. The local authority refused M's application and offered C a place at another school, and M appealed. The Appeal Panel purported to apply the two-stage test in the Schools Admissions Appeals Code: at the first stage, it found that the school had reached its published admission number of pupils and was full, and the difficulties that it would face if it were to admit C would far outweigh any disadvantage suffered by C by not being admitted; at the second stage, the Panel consider that there were no exceptional reasons to compel the school to admit a further pupil and that there were a number of schools that could be suitable.
The court held, granting M's application, that the Panel had misdirected itself. The first stage was not a comparative stage in which a selection could be made between the parental choice school and named other schools, but was a process in which the parental choice of school alone was tested against the mandatory requirements of the code. It had also misdirected itself on the second stage: that stage required a balancing of the arguments, and the true evidential burden was for a parent to show that their grounds for admission of the child outweighed any prejudice to the school. (16 October 2009)

DCSF: Education Minister announces major step towards raising the age of participation of young people in learning: announces the 11 trial areas that will test different ways of helping local authorities prepare for raising the participation age in 2015. The trails will run until Spring 2010 and will be used to develop good practice examples. (21 October 2009)

DCSF: Ed Balls announces new network of co-operative schools as Trust School numbers boosted: announces that 114 schools have been given the go-ahead to become Trust schools.  (22 October 2009)

DCSF: Quality, choice and aspiration - a strategy for young people's information, advice and guidance: this document outlines the Government's information, advice and guidance (IAG) strategy for realising its ambition that every young person will get careers education up to the age of 18 in line with raising the participation age. It builds on the report ‘Fair Access to the Professions’ by Alan Milburn and his Panel and takes forward the majority of the recommendations. Amongst its many proposals the Panel suggested that the Government consider disbanding the Connexions service; however, as local authorities prepare for Raising the Participation Age and the transfer of responsibility for 16-19 funding, DCSF considers that structural change could be very de-stabilising so the Panel’s proposals, while under active consideration, are not being implemented at this stage. Local authorities are on notice that if Connexions is not able to deliver demonstrable improvement against a range of indicators by 2011 then DCSF will take further action, including devolving budgets for careers guidance from local authorities to schools and other front line providers. (26 October 2009)

DCSF: Consultation on proposed amendments to the School Premises Regulations on school kitchen and dining facilities: seeks views on proposals to amend SI 1999/2 in relation to refurbishing or building kitchens and dining facilities. Comments are required by 22 January 2010. (29 October 2009)

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

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MSA v Croydon LBC [2009] EWHC 2474 (Admin) (Admin Ct): the court considered whether, in general, it should endorse a penal notice on an order made against a public authority in order to enable the court to deal with failures to comply with its orders under RSC Order 52 by means of proceedings for contempt or for sequestration. The court held that there was no reason for the Administrative Court to change its present practice. Penal notices were not necessary in orders made against a public body. A failure to comply with an order could be dealt with by an application to the court for a finding of contempt and, if necessary, a further mandatory order which ndicated what might happen should there be any further failure to comply. Adverse findings coupled with an order to pay indemnity costs should suffice since it was unlikely that a public body would deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine. (12 October 2009)

MoJ: Council tax enforcement in magistrates' courts: the Justice Minister Bridget Prentice has made a statement on council tax enforcement procedures, following investigations by HMCS that have identified a small number of magistrates’ courts that have failed to follow the correct procedures. In particular HMCS has identified examples of fees not being charged to local authorities for issuing proceedings and some examples of a failure to enter the results of applications for liability orders on the court register. More seriously two magistrates’ courts permitted the local authorities to issue summonses requiring attendance at court without the authorisation of the court. She has reminded all courts of the importance of following the correct procedures. (22 October 2009)

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

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Environmental Protection

Audit Commission: Lofty ambitions - the role of councils in reducing domestic CO2 emissions: examines and reports on the progress made by councils to cut domestic CO2 emissions. It gives practical examples to show councils how they can tackle emissions and at the same time help to reduce fuel poverty. It also considers how councils can achieve improvements in value for money from their actions to reduce CO2. (21 October 2009)

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

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Equality and Human Rights Commission: Cohesion and equality - guidance for funders: this guidance aims to help public bodies, especially those providing funding at a local level, to discharge their equality duties. The guidance is issued in light of evidence that local authorities are implementing the drive to promote community cohesion and integration in breach of their positive legal obligations concerning equality and diversity. (30 October 2009)

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

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Health and Social Care

DH: Getting it right for children and families: this guide for health visitors and their teams, provider managers, commissioners and educationalists sets out the contribution that health visitors and their teams can make to health and well-being and public health. (14 October 2009) 

DH: Communities for Health - unlocking the energy within communities to improve health: the Communities for Health Programme exemplifies the increasing role local government plays in supporting health improvement and reducing health inequalities. This second report shows how communities have been inspired and helped to improve the health of their residents. It describes how community activities in over 80 local authorities have encouraged behaviour change and strengthened local partnership to tackle a wide range of key health priorities. (15 October 2009)

DH: Good learning Disability Partnership Boards - making it happen for everyone: this guidance provides best practice examples from learning disability partnership boards around the country and proposed ways of working.  (21 October 2009)

Draft Health and Social Care Act 2008 (Regulated Activities) Regulations 2009: these draft regulations detail the new framework against which the Care Quality Commission will regulate providers of health and adult social care. The requirements set out the essential levels of safety and quality of care that providers must deliver for people who use their services, but gives them flexibility on how they do it. Subject to approval by Parliament, the new system will be introduced for NHS healthcare providers in April 2010 and for private and voluntary health care and adult social care providers from October 2010, making it illegal for organisations to provide services that fall under the new framework without registering. (29 October 2009)

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

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LGA: Judicial review bid launched over government housing decision: announces that a consortium of councils is applying to quash the Government's decision to withdraw promised funding for their Decent Homes programmes for 2009/10 and 2010/11 without providing any guarantee that funding will be reinstated in later years. The affected councils together with the LGA believe that withdrawing funding at short notice and with almost immediate effect significantly damages Arm's Length Management Organisations’ and councils’ ability to plan and deliver vital services that affect tens of thousands of tenants across the country. (16 October 2009)

Birmingham City Council v Qasim [2009] EWCA Civ 1080 (CA): a housing officer employed by the local authority had granted residential tenancies to applicants who did not have priority under the authority's housing allocation scheme. The authority applied to repossess the properties but the judge held that the tenancies were valid secure tenancies binding on the local authority and had not been granted in circumstances which justified repossession. The authority appealed. The issue was whether a tenancy granted by the authority, which, on the face of it, was a secure tenancy under s.79 of the Housing Act 1985, was nonetheless void because it was granted to someone who had not been selected in accordance with the authority's housing allocation scheme under Part VI of the Housing Act 1996.
The court held, dismissing the authority's appeal, that the secure tenancies granted to tenants who had not been selected in accordance with the allocation scheme were valid. There was a distinction between the local authority's duty under the 1996 Act to allocate residential accommodation in accordance with its statutory housing allocation scheme and its ability to dispose of accommodation by way of secure tenancy in accordance with its powers under the 1985 Act. The grant of the tenancies to Q and others were breaches of the statutorily prescribed procedure for selecting an applicant to be a secure tenant, rather than a grant of secure tenancies not in accordance with statutory requirements. If Part VI of the 1996 Act was concerned with regulating the actual grant of tenancies, s.167(8) might be invoked to say that it was ineffective, because the grant would have been ultra vires the authority's powers. However, in this case, the local authority failed to comply with statutorily required procedures leading up to the grant of the tenancy, rather than related to the grant. That failure related to allocation and the subsequent grant of the tenancies was not ultra vires. (20 October 2009)

If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi.

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Leisure and Recreation

Museum, Libraries and Archives Council: Improving library services:  this online guidance links to case studies from across the country that illustrate how libraries have improved their services by redefining strategic priorities, restructuring the workforce, community consultation and co-location with other services. The MLA is writing to all local authority chief executives in England emphasising how public libraries make a difference by supporting people and communities in learning, acquiring new skills and jobs, accessing the internet and reading books. (21 October 2009)

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

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DCLG: Amending the Accounts and Audit Regulations 2003 (SI 2003 No.533) to improve the transparency of reporting of remuneration of senior officials in public bodies - Summary of responses and Government response: sets out the Government's reponse to its March 2009 consultation. It announces that local authority bodies will be required to include detailed senior pay information covering salary, bonuses, pensions, perks and compensation pay offs in their next annual statement of accounts. The final SI will be laid before Parliament no later than 31 December 2009, and the new provisions will come into force from 31 March 2010, requiring the public bodies covered by the 2003 Regulations to include in their annual statement of accounts detailed remuneration information for their senior employees who are paid over £50,000 p.a"Senior" includes the Head of Paid Service and first tier officers who report to the Head of Paid Service e.g. Director, Chief Officer or Strategic Director.  (22 October 2009)

IDeA: Shared chief executives and joint management - a model for the future?: with the increasing pressures on local government finances, many local authorities are looking at developing closer partnerships and collaborative ways of working in order to secure greater levels of efficiencies. A growing number of authorties have chosen to deepen their partnership working by sharing their chief executive and management teams. This report explores the impact of sharing chief executives on local authorities’ integration, particularly in terms of efficiency savings and the shared services agenda. (27 October 2009)

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

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OGC: Procurement Policy Note 11/09 – preliminary guidance on the application of the public procurement rules to development agreements: this guidance sets out some of the circumstances which may reduce or increase the likelihood that a development agreement will be subject to the public procurement rules. It aims to clarify issues raised by various ECJ cases, particularly Auroux v Commune de Roanne (C220/05).

OGC: Grey fleet: OGC has launched a major campaign aimed at improving the way the public sector manages 'grey' fleet, i.e. employee-owned vehicles used for work-related journeys. The campaign aims to raise the profile of the issues and opportunities presented by managing grey fleet, as well as helping organisations and employees adopt safer, more cost effective and sustainable forms of travel. Grey fleet projects managed under the collaborative fleet procurement project saved over £8m for public sector organisations in 2008/2009. (27 October 2009)

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

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Regulatory Services

DBIS: Electronic licence management system: this portal brings together in one place all the resources that licensing authorities will need in the run-up to the European Services Directive implementation deadline of 27 December 2009. It contains detailed information about key tasks, including relevant documents and guides, links to other relevant sites, including the community of practice discussion forum, training materials (including FAQs) and archive material.  (20 October 2009)

Local Better Regulation Office: Impacts and outcomes of local authority regulatory servies - final report: this report looks at 48 potential benefits of local authority regulatory services to communities in general and to business, including issues that have a direct impact on quality of life, including anti-social behaviour, crime and violence. It shows that regulators’ actions do have demonstrable results for the quality of life in communities, and it provides a toolkit for identifying, measuring and managing them. (21 October 2009)

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

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Standards for England: Local standards; national perspective - annual review 2008-09: focuses on SFE's view of what is happening among its regulated community and deals with what the organisation has been doing to position itself as a strategic regulator during the first year of the new local standards framework. It includes examples of notable practice in localauthorities. (8 October 2009)

Standards for England: Disclosing confidential information: gives a short guide to the application of para.4(a) of the Members' Code of Conduct on the disclosure of confidential information. (19 October 2009)

Standards for England: Gifts and hospitality: gives a short guide to paras.8 &13 of the Members' Code of Conduct on gifts and hospitality. (19 October 2009)

Standards for England: Standards for England and Audit Commission sign Memorandum of Understanding: announces that Standards for England has signed a new MoU with the Audit Commission, which will allow the two bodies to share information with one another where they are of the view this might help either organisation to fulfil its functions. This may include the sharing of reports and findings, as well as information on prior or current involvement with relevant authorities. (30 October 2009)

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

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State Aid

DBIS: How the state aid rules impact upon funding for the delivery of public services including Services of General Economic Interest (SGEI): guidance on the impact of EC legislation on the delivery of public services. It has a checklist  for determining whether the state aid rules apply to funding for public services, and discusses services that are "economic", circumstances where the rules may apply even where the authority pays the competitive market price, and information on UK approved schemes and EU block exemptions. (22 October 2009)

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

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Healthy Eating in Schools (Wales) Measure 2009: this Measure, which came into force on 15 October 2009, imposes a duty on Welsh Ministers, governing bodies, head teachers and local education authorities (LEAs) to promote healthy eating in schools. Governing bodies are also required to include healthy eating in their annual report. Ministers must report annually on progress on nutrition in schools and on the improving standards. It also imposes a duty on schools and LEAs to encourage the take up of school meals generally and to ensure that the highest percentage possible of those eligible for free school meals do eat them. LEAs must also take reasonable steps to ensure that the identities of those children who have free school meals are protected. (15 October 2009)

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

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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 in 2009 and 2010:

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

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