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    Fire and Rescue Authorities
   Adult Social Services    Housing
   Children's Services    Human Rights
   Civil Contingencies    Powers and Duties
   Committees    Shared Services
   Education    Social Enterprises
   Employment    Standards
   Equality    Surveillance
   Executive Arrangements    Wales
   Finance    

 

Access to Information

DWP: Sharing customer data between DWP and local authorities - Call for evidence: seeks views about proposed new arrangements for sharing customer data between DWP and local authorities in relation to the provision of welfare services. Parliament is considering introducing regulation-making powers which will broaden current data sharing powers. If the new power is introduced customer details could be shared in more circumstances than is currently the case. The aim is to make it easier and simpler for customers to apply for and receive a range of different services and benefits. The consultation closes on 25 April 2011. (1 March 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

CQC: New excellence scheme for adult social care: announces plans to develop a new scheme to recognise excellence in adult social care. The scheme, set to be launched in April 2012, will be CQC-owned, but delivered by other organisations under licence. A consultation on how to define excellence in adult social care will launch in May, building on work carried out for CQC by the Social Care Institute for Excellence. The scheme will be voluntary and will involve a proportionate charge. CQC will seek expressions of interest to deliver the scheme in the spring, and will welcome bids from across the private and voluntary sector. CQC will publicise the excellence award on its own website from April 2012, alongside its own reports on whether or not a provider is meeting essential standards. A user-friendly ‘provider profile’ for every CQC-registered adult social care service will be launched this summer. (28 February 2011)

R (W) v Croydon LBC (Unreported, 2011) (Admin Ct): W was a young adult with autism and severe learning difficulties who lacked capacity under the Mental Health Act 2005. He applied for judicial review of the Council’s decision to move him from his current supported living accommodation to a different facility. The Council carried out assessments of W’s needs and concluded that his accommodation was no longer suitable as it did not encourage independence and also it cost more than double the amount that the Council would normally expect to pay to accommodate someone with such needs. W’s parents only received copies of the assessments on the morning of the best interests meeting. The accommodation service provider did not attend the meeting because of a misunderstanding about the need to attend. W argued that the process of consultation between his parents and the provider for the best interests meeting had been inadequate and that their views had not been taken into account as required by the Choice of Accommodation Directions 1992.
The court held, granting W’s application, that the consultation process had been inadequate as W’s parents had not been involved in the earlier assessments nor had they been given enough time before the best interests meeting to consider the proposal to change W’s placement. Also the service provider’s views would have been useful. The decision to terminate W’s placement would be quashed.  (3 March 2011)
The judgment is available on Lawtel (password required)

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

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Children's Services

Ofsted: Outstanding children's homes: this report highlights 12 homes that have excelled in helping improve the lives of children and young people in their care. It  analyses how a small sample of 12 children’s homes achieved and sustained outstanding status over a period of three years. It draws on the views of managers, staff and young people about what makes these homes outstanding and the key features which have contributed to their success. (2 March 2011)

R (O) (by his litigation friend Burton) v East Riding of Yorkshire CC; Secretary of State for Education (Intervener) [2011] EWCA civ 196 (CA): O was a teenage boy who suffered from severe autism and severe attention deficit hyperactivity disorder. He was a child in need for the purposes of s.17(1) of  the Children Act 1989 and had been provided with weekend respite care by the Council under s.20 of that Act, which meant that he was a looked-after child (LAC) and so entitled to assistance from the Council until he was at least 21 years old. O was later placed full-time in a residential specialist school in accordance with a statement of special educational needs (SEN), but often returned home to his parents' care at weekends. He applied for judicial review of the Council's decision that the effect of that placement was to terminate his LAC status because he no longer required respite care and his welfare needs were being met by an educational placement under the Education Act 1996. The judge found that O's status as a looked after child had come to an end.
The Court of Appeal held, allowing O's appeal, that the Council's decision was erroneous, irrational and unlawful. The issue was the relationship between LAC status under the Children Act and a SEN placement under the Education Act. It was impossible to regard the SEN residential placement as being provided wholly or mainly to meet O's educational needs, as distinct from being provided to meet both those needs and the needs for which he had become and was a looked after child. It was plain that O required full-time accommodation in his specialist placement in order to give him the care, as well as the educational assistance, which his needs, and his parents' inability to cope with and control him, demanded; the fact that his parents were willing to have him home at weekends and during the holidays did not detract from that. In regarding the SEN placement as supplanting and ending O's LAC status, the Council had mis-labelled the situation and side-stepped their Children Act responsibilities. They never stopped to think of, or to give anxious scrutiny to, the question whether the factors which had led to respite care, when they were carried over into the placement, necessitated a continuation of O's status - they had  merely assumed that that status came to an end with the ending of the respite care which had brought that status into being. In the circumstances, where O's needs, social as well as educational, had driven the placement, it was impossible to regard the Education Act's SEN regime as supplanting rather than supporting the Children Act's LAC regime. The Council's error was more fundamental than perversity or irrationality: they had terminated LAC status on a false (and to some extent unspoken) premise, that accommodation to be provided by the council under the SEN placement superseded O's LAC status, whereas on the facts before them, and acknowledged by them, it was in truth continuing it. (2 March 2011)

Fostering Services (England) Regulations 2011 (SI 2011/581): these regulations, which come into force on 1 April 2011, provide a regulatory framework for fostering agencies and local authority fostering services. They set out the way in which fostering agencies (independent fostering agencies and voluntary organisations) and local authority fostering services are conducted, and in particular the process for approving foster parents and safeguarding children placed with foster parents. They revoke and replace SI 2002/57. They should be read together with the Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), which bring together all the provisions in previous Regulations relating to the placement of looked after children by local authorities, and include provisions about the placement of looked after children with foster parents, and also the Arrangements for Placement of Children by Voluntary Organisations and Others (England) Regulations 2011 (SI 2011/582) which make similar provision in relation to the placement of non-looked after children with foster parents. (10 March 2011)

DfE: Children Act 1989 Guidance and Regulations Volume 4: Fostering Services: this statutory guidance is designed to provide a framework for practice in providing a fostering service that emphasises the importance of safeguarding and promoting the welfare of individual children. It sets out the functions and responsibilities of local authorities and their partner agencies in relation to fostering services under Parts 3, 7 and 8 of the Children Act 1989, along with the responsibilities arising from the Children Act 2004 and the Children and Young Persons Act 2008 in relation to fostering services. In addition, it gives guidance to independent fostering agencies about their responsibilities under the Care Standards Act 2000. Local authorities, in acting as commissioners of placements with independent fostering agencies, should be aware of and take note of the requirements on those providers under this legislation and reflect it in their commissioning standards and contract specifications. (10 March 2011)

Children’s Homes (Amendment) Regulations 2011 (SI 2011/583): these regulations, which come into force on 1 April 2011, amend SI 2001 3967 which provides for a wide range of matters with which registered providers and managers of children’s homes must comply when they provide accommodation and care for children who are accommodated in children’s homes. The amendments streamline the 2001 Regulations by removing requirements that have become unnecessary over time. In particular they give greater clarification about the circumstances in which it may be permissible to physically restrain children in the home, so as to help providers and managers have in place effective behaviour management policies that minimise the need for children to be restrained. (10 March 2011)

DfE: Children Act 1989 Guidance and Regulations Volume 5: Children's Homes 2011: this statutory guidance supports local authorities who are responsible for working with children’s homes providers so that the children they look after are given the best possible care and support. It provides guidance to local authorities about their functions under Parts 3 and 6-8 of the Children Act 1989. It also gives guidance to providers of children’s homes about their responsibilities under the Care Standards Act 2000. Local Authorities in acting as commissioners of places in children’s homes should be aware of and take note of the requirements on those providers under this legislation and reflect it in their commissioning standards and contract specifications. (10 March 2011)

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

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Civil Contingencies

Cabinet Office: Keeping the country running - Natural hazards and infrastructure: seeks views on draft guidance to support infrastructure owners and operators, emergency responders, industry groups, regulators and government departments, and help them work together to improve the resilience of critical infrastructure and essential services to severe disruption from natural hazards. The consultation closes on 6 May 2011. (1 March 2011)

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

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Committees

Regional Flood and Coastal Committees (England and Wales) Regulations 2011 (SI 2011/695): these regulations, which come into force on 1 April 2011, relate to the establishment of Regional Flood and Coastal Committees under the Flood and Water Management Act 2010, to be made up of local authority and other members. The new committees are replacing the old Regional Flood Defence Committees, and they will exercise a supervisory role in relation to the Environment Agency’s flood and coastal erosion risk management functions. The regulations specify the procedure, provide details on membership, appointment and proceedings, and make transitional provisions. (7 March 2011)

Flood Risk Management Overview and Scrutiny Committee (England) Regulations 2011 (SI 2011/697): the Flood and Water Management Act 2010 inserts a new s.21F into the Local Government Act 2000 that increases the jurisdiction of existing local authority overview and scrutiny committees (OSCs) by extending the number of entities with duties to respond to the committees, to include all the flood risk management authorities, and the scope of enquiry of these committees. These regulations, which come into force on 6 April 2011, augment these duties by including a duty to attend before the overview and scrutiny committee (OSC) to give information orally, if requested by that committee. They also require responses to be made within 28 days, unless extended by agreement, and to include an indication of the action the authority proposes to take. The regulations also contain provisions to safeguard any confidential information provided to the OSC against disclosure. (10 March 2011)

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

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Education

DfE: Capital funding for Voluntary Aided (VA) schools in England - Blue Book guidance: provides information relating to premises-related work at VA schools, together with details about how to apply for funding. (28 February 2011)

PfS: Guidance on capital programmes for 2011-12 - Questions and answers: this guidance covers some common enquiries about schools capital programmes in 2011-2012. (28 February 2011)

DfE: Improving underperforming schools: the Education Secretary has written to local authorities asking for their plans to improve schools below the floor standards in their area. The new floor standards for Key Stage 2 and Key Stage 4 are:

  • a  secondary school will be below the floor if fewer than 35% of pupils achieve the standard of five GCSEs with grades A*-C including English and mathematics and fewer pupils than the national average make the expected levels of progress between Key Stage 2 and Key Stage 4 in English and mathematics; and
  • a primary school will be below the floor if fewer than 60% of pupils achieve the standard of Level 4 in both English and mathematics at Key Stage 2 and fewer pupils than the national average make the expected levels of progress between Key Stage 1 and Key Stage 2 in English and mathematics.

Local authorities must draw up plans for improving performance in their schools (apart from Academies) and submit them to him by 15 April 2011. He has also written a similar letter to Academy sponsors. (1 March 2011)

DfE: Written Ministerial Statement on Building Schools for the Future: the Education Secretary has set out the next steps to be taken in the review of six local authorities' BSF projects, following the High Court's ruling in the BSF judicial review case that his decision to stop funding those projects was unlawful. (2 March 2011)

DfE: Review of vocational education - the Wolf report: this independent report by Professor Alison Wolf analyses how millions of children have been failed over the past 20 years and sets out a blueprint for a very different system in which almost all young people have the chance of further education or a good job. It considers how vocational education for 14- to 19-year-olds can be improved in order to promote successful progression into the labour market and into higher level education and training routes, and provides practical recommendations to help inform future policy direction, taking into account current financial constraints. Underlying it are three principles for reform:

  • any young person’s programme of study, whether ‘academic’ or ‘vocational’, should provide for labour market and educational progress;
  • provide people with accurate and useful information, so that they can make decisions accordingly; and
  • the system needs to be simplified dramatically, as a precondition for giving people good and accurate information, to free up resources for teaching and learning, and to encourage innovation and efficiency.

(3 March 2011)

DfE: Support and aspiration - A new approach to special educational needs and disability: this Green Paper seeks views on changes to the Special Educational Needs (SEN) system that aim to improve outcomes for children and young people who are disabled or have SEN, minimise the adversarial nature of the system for families and maximise value for money. The proposals include: 

  • a new approach to identifying SEN through a single Early Years setting-based category and school-based category of SEN;
  • a new single assessment process and Education, Health and Care Plan by 2014;
    local authorities and other services will set out a local offer of all services available;
  • the option of a personal budget by 2014 for all families with children with a statement of SEN or a new Education, Health and Care Plan;
  • giving parents a real choice of school, either a mainstream or special school; and
    introducing greater independence to the assessment of children’s needs.

The consultation closes on 30 June 2011. (9 March 2011)

DfE: Schools Financial Value Standard (SFVS) consultation: seeks views on the draft SFVS that applies to all maintained schools. It takes the form of a series of questions about the school’s financial management which school governing bodies should formally discuss with their head teacher and other staff. The first run through should be before September 2012; for schools which had not attained the Financial Management Standard in Schools (FMSiS), it must take place before 31 March 2012. The consultation closes on 30 April 2011. (10 March 2011)

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

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Employment

HM Treasury: Consultation on the Fair Deal policy - Treatment of pensions on compulsory transfer of staff from the public sector: this consultation has been issued in response to a recommendation made in the interim report of the Independent Public Service Pensions Commission which found that the Fair Deal policy, coupled with current public service pension structures, creates a barrier to the plurality of public service provision. The Fair Deal policy requires provision of broadly comparable pensions where staff are compulsorily transferred from the public sector to a new non-public sector employer, including private sector businesses and non-profit making organisations such as charitable bodies and social enterprises. It requires that the new employer provides a broadly comparable pension scheme for the transferred staff and bulk transfer arrangements for those staff who wish to transfer their public service pension benefits. This document sets out details of the Fair Deal policy, objectives and seeks views on a range of options for future policy and subsequent transfers. The consultation closes on 15 June 2011. (3 March 2011)

Independent Public Service Pensions Commission: Final report: Lord Hutton of Furness has published his final report on public service pension provision that sets out his recommendations on pension arrangements that are sustainable and affordable in the long term, fair to both the public service workforce and the taxpayer and consistent with the fiscal challenges ahead, while protecting accrued rights. The Commission’s interim report (October 2010) found that the current public service pensions structure has been unable to respond flexibly to rising pensions costs in the past few decades, and that the current final salary design feature of public service pensions was fundamentally unfair to those without large salary increases during their career. His main recommendation in this final report is that existing final salary public service pension schemes should be replaced by new schemes where an employee’s pension entitlement is still linked to their salary (a “defined benefit scheme”) but is related to their career average earnings, with appropriate adjustments in earlier years so that benefits maintain their value. The report suggests that it should be possible to introduce these new schemes before the end of this Parliament in 2015, while allowing a longer transition, where needed, for groups such as the armed forces and police. (10 March 2011)

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

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Equality

Government Equalities Office: Equality Act 2010 - Ending age discrimination in services, public functions and associations : A consultation on proposed exceptions to the ban: this consultation discusses provisions in the 2010 Act that allow for a ban on age discrimination in the provision of services and public functions. It seeks views on those areas where different treatment of people of various ages by providers of goods and services is justified, and how the legislation will be drafted to take account of these. The suggested exceptions include age-based concessions, immigration and sport. The Government proposes no specific exceptions to the ban on age discrimination for health or social care services, so that any age-based practices by the NHS and social care would need to be objectively justified, if challenged. The consultation closes on 25 May 2011. (3 March 2011)

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

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Executive Arrangements

R (007 Stratford Taxis Ltd) v Stratford on Avon DC [2011] EWCA Civ 160 (CA): following a recommendation from the Council’s General Purposes Licensing Committee, the Cabinet made a decision that that all new taxis should have wheelchair access from 1 January 2010. The claimants, a taxi firm, applied more than six months later for judicial review of the decision but the High Court dismissed their application as being out of time and refused an extension. The claimants appealed, contending (amongst other things) that the Cabinet was not competent to take the decision as, under the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, a decision to adopt a policy that all taxis should have wheelchair access was the exercise of a function which was calculated to facilitate, or was conducive or incidental to, the discharge of the power to license hackney carriage and private hire vehicles and so was a non-executive function, rather than the adoption of a plan or strategy that was an executive function.
The court held, dismissing the appeal, that the Council had conducted proper consultation and their General Purposes Licensing Committee had given proper consideration to the responses to consultation and to the matter generally. The Cabinet was lawfully competent to take the decision that all new taxis should from 1 January 2010 have wheelchair access; however there was a significant procedural flaw in the process in that the main matters relevant to the decision were not placed before the Cabinet nor specifically considered by it. There was a distinction between the political decision to adopt a policy of this kind and the particular power to license taxis. Adopting the policy was not conducive or incidental to the power to license, nor was it calculated to facilitate the exercise of that power, because it did not make the exercise of the licensing power easier in an individual case precisely because it was not directed to the individual exercise of the power. Logically, a plan or strategy or a policy on whether taxis should have wheelchair access came first; and that function was one that a Cabinet might undertake. The function of licensing individual taxis and anything that was calculated to facilitate or was conducive or incidental to the exercise of that particular function (by the Council) came second and was a function to be performed in the light of the plan or strategy or policy that the Cabinet had determined. However, the judicial review proceedings were brought substantially out of time and the claimants had no persuasive excuse for a significant part of the delay. It would be detrimental to good administration if the Cabinet were now required to reconsider this matter given the time which has elapsed. The court declined to extend time or to grant relief. (23 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

Capitalisation Directions (excluding equal pay) 2011-12 - policy and procedures: Guidance: sets out the Government's policy, application assessment criteria and process timetables for issuing Capitalisation Directions to local authorities for financial year 2011-12, permitting local authorities to fund expenditure by borrowing or capital receipts, which would under normal accounting rules need to be funded from revenue resources. The Spending Review announced that £200m of capitalisation would be available in 2011-12 - this has now  been increased to £300m. The capitalisation categories and criteria have been revised since 2010-11: consideration of the level of reserves will be a key part of the assessment process. As has been the case in previous years, the Government will look at the total reserves for each authority (excluding schools reserves), including both 'earmarked' and unallocated reserves, since earmarking of reserves in itself does not exclude use for other purposes. Also, the main application deadline has been brought forward to 12 May 2011, and decisions should be made in July. (3 March 2011)

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

DCLG: Bob Neill on the “Future of fire”: reports on a speech given by the Fire Minister to the LGA “Future of fire” conference in which he re-affirmed that the Fire and Rescue Service has been given some protection in the Government's recent spending settlement. He stated that reductions in funding to Fire and Rescue Authorities have been less than those applied to local authorities in general and that, while spending decisions will be decided locally by individual Fire and Rescue Authorities, he believed that these savings should be achievable without affecting the quality and breadth of frontline services, through modern working practices in areas such as flexible staffing and shared services. In addition, the Government has increased capital grant funding from £45m in 2010/11 to £70m in 2011-12. (10 March 2011)

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: Local HealthWatch Pathfinders in 2011-12: the NHS White Paper proposed that Local HealthWatch organisations should be set up as the local consumer voice for people who use and need health and social care services. The Health and Social Care Bill currently before Parliament sets out the duties and responsibilities of local authorities, HealthWatch England and Local HeathWatch (LHW) organisations. LHWs will carry forwards existing LINKs functions as well as having new responsibilities to provide advice and information and to help people navigate their way round the health and social care system. Local authorities will be the commissioners for LHW. This letter invites local authorities to apply to be an LHW pathfinder. The deadline for submissions is 12 May 2011. (7 March 2011)

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

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Housing

DCLG: Local decisions - Next steps towards a fairer future for social housing: Summary of responses to consultation: summarises responses to the consultation on plans for radical reform to the social housing system, and indicates the Government's intentions on the next steps in this reform. The Localism Bill will give landlords the option to offer flexible tenancies, and will give councils greater control over allocating their social homes. Councils will continue to publish their policies on how social housing is allocated, showing how priority will continue to go to people in greatest need. All social landlords will be required to publish their policies on issuing different tenancies, including how they plan to meet their responsibility to make necessary provisions for the needs of the most vulnerable families. It proposes that a two-year minimum tenancy should still be available for landlords to offer, but in the vast majority of cases, the Government expects longer term tenancies to be offered, particularly for vulnerable households or those with children. The Government has also confirmed that all tenants will have access to a National Home Swap Scheme, making it easier for them to move should their situation change. (28 February 2011)

LGA: Briefing on the final New Homes Bonus scheme: comments on the Government’s proposed New Homes Bonus that will reward local authorities with a bonus equal to the national average for the council tax band on each additional property they build/bring back into use and paid for the following six years as an unringfenced grant. There will be an enhancement of £350 for affordable homes. It also looks at outstanding issues, including the variable impact of the bonus on local authority areas. (21 February 2011)

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

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Human Rights

R (Johns) v Derby City Council; Equality and Human Rights Commission (Intervener) [2011] EWHC 375 (Admin) (Admin Ct): Mr and Mrs J applied for judicial review of the Council's approach to their application to be approved as short-term, respite, foster carers. J were members of the Pentecostalist Church and believe that sexual relations other than those within marriage between one man and one woman were morally wrong. The Council considered that J's views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which require carers to value individuals equally and to promote diversity. The council's Fostering Panel deferred its decision about J's application. J and the Council asked the court for a declaration on:

  • how the local authority as a fostering agency is required to balance the obligations owed under the Equality Act 2006, the Equality Act (Sexual Orientation) Regulations 2007, the Human Rights Act 1998, the National Minimum Standards for Fostering Services and Council's Fostering Policy when deciding whether to approve prospective foster carers as carers for its looked-after children; and
  • within that balancing exercise, does the local authority have a duty to treat the welfare of such looked-after children as its paramount consideration?

The court held, refusing the application for judicial review, that  the Council's duty to value diversity and promote equality and to value, encourage and support children in a non-judgemental way regardless of their sexual orientation or preference, applied not only to the child and the individual placement, but also to the wider context, including the main foster carer, a child's parents and the wider family. The Council was entitled to consider a prospective foster carer's views on sexuality, especially when it was apparent that the views held, and expressed, by J might well affect their behaviour as foster carers, and was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them. If the Council had failed to explore these matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards for Fostering and the Statutory Guidance. If the Council's treatment was the result of J's expressed antipathy, objection to, or disapproval of homosexuality and same-sex relationships it would not be because of their religious belief. Moreover, the Council's treatment of J would not be less favourable than that afforded other persons who, for reasons other than their religious views, expressed objection to, or disapproval of, homosexuality and same-sex relationships contrary to the National Minimum Standards for Fostering and the Council's various policies. (28 February 2011)

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

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Powers and Duties

DCLG: Review of statutory duties placed on local government: announces a review that will proactively identify unnecessary burdens and barriers preventing local authorities from getting on with their job, so that the Government is clear about the current demands placed on local authorities and decide if they remain relevant to serving the public. DCLG has published an initial list of more than 1,200 legal duties imposed mainly by primary legislation. The list is not exhaustive but reflects mainly those duties imposed by primary legislation for which departments and their predecessors are responsible, including statutory and non-statutory guidance that applies to the duties. DCLG considers that while many of these may be vital, others are not, and it is asking local authorities to advise Ministers of any duties missed at this stage, those that create unwanted burdens and which ones could potentially be repealed. This web page links to spreadsheets listing these statutory duties, along with FAQs on the cross-Whitehall review. The closing date for comments is 25 April 2011. (8 March 2011)

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

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Shared Services

New Local Government Network: Shared necessities - The next generation of shared services: this report looks at the tough challenges facing councils that are sharing services in order to fill the gap caused by the Government’s spending cuts. It warns that councils must be more innovative and ‘boldly go beyond the back office’ if sharing is to deliver significant efficiencies while protecting frontline services. The report recommends that councils adopt a presumption in favour of sharing services, incorporating the concept within service redesigns and all transformations being used to manage the impact of cuts. It includes a toolkit for local authorities and their partner organisations looking to share services, and recommends the development of an electronic market place for councils looking to share and trade services, as well as the piloting of ‘invest to save’ bonds to finance wide-scale transformation and service redesign. (1 March 2011)
Bevan Brittan sponsored this report and helped with its content. The full report can be downloaded from the NGLN website, price £12 (pdf) or £15 (hard copy). If you would like a copy of the executive summary, please email Claire Booth.

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

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Social Enterprises

LGE: Social enterprises and staff mutuals: this guide provides practical guidance for councils when considering how in-house services can be delivered through various different models. Many social enterprises, staff mutuals, cooperatives and other employee-led models are expected as a result of the decentralisation agenda and the Localism Bill. This guide concentrates on the main employment issues for councils and offers guidance in responding to employee requests to deliver local services. It includes the top ten things to consider when responding to an employee request to run a social enterprise, along with some sample letters which councils may want to use, some useful sources of information and some points to take into account regarding TUPE, pensions and procurement issues. (28 February 2011)

R (Jenkins) v Marsh Farm Community Development Trust (2011, unreported) (Admin Ct): J was a member of a Community Interest Company, MFO, that was involved in securing funding for unemployment and worklessness projects in the Marsh Farm area of Luton. MFCDT supported and administered applications for grant monies as part of the New Deal for Communities programme; it derived its funding from Government derived grant monies. MFCDT's Annual Delivery Plan for 2010/11 included a potential funding of £839,985 for a novel and contentious project proposed by MFO which would deliver jobs and skills to local residents over a short period ending by 31 March 2011. There was a delay in securing conditional approval and contracts were finally drawn up and signed by MFO and MFCDT in October 2010; however, in the meantime MFO had been put into administration for unpaid debts so the contracts were null and void. By the time that MFCDT had secured further conditional approval for MFO or an alternative organisation to deliver the relevant project a number of payments became due for other projects that MFCDT was contractually committed to. MFCDT therefore withdrew financial support from MFO and authorised a transfer of funds to other causes. J applied for judicial review of this decision, contending that there had been a legitimate expectation that the MFO project would be funded in 2011.
The Court held, dismissing J's application, that there could not have been a legitimate expectation that the funds specified in the Annual Delivery Plan would be made available to MFO or that the project would be funded. The inclusion of monies in an Annual Delivery Plan which provided MFCDT with a discretion as to how to apply those monies did not raise a legitimate expectation. The MFO project was still to receive Ministerial approval which was now unlikely given that all monies had to be expended by 31 March 2011. There was no abuse of power: the monies that had been included in Annual Delivery Plan for MFO were likely to have been committed to other projects well before any question of abuse or reassignment by an official of MFCDT arose. MFO had no right to be paid money as there was no legitimate expectation, there was too short a time to delivery the project within the relevant timescale and in any event insufficient money such that any judgment would be worthless. (1 March 2011)
The judgment is available on Lawtel (password required).

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

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Standards

ACSeS / LGA: Maintaining high ethical standards in local government: summarises the provisions in the Localism Bill that make changes to the ethical standards framework and outlines the conduct controls which exist in addition it, including the Seven Principles of Public Life. It gives an ‘aerial view’ of the law of local authority corporate governance, covering: the fiduciary duty of councillors as custodians of public resources; the registration of interests; relevant civil and criminal law (including misfeasance in public office and corruption offences) and electoral law and related offences. There are also brief notes on the Local Government Ombudsman and the complex areas of bias, predisposition and predetermination. ACSeS states that it considers the Bill’s conduct proposals to be so permissive as to be practically ineffective and it is making a separate submission to the Public Bills Committee in relation to the local government ethical framework. (22 February 2011)

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

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Surveillance

Home Office: Code of Practice relating to surveillance cameras: seeks views on the content of a new Code on the use of closed circuit television systems and other similar surveillance camera systems, as the first step towards establishing a formal Code as promised in the Government's Protection of Freedoms Bill. The Code is to be introduced on an incremental basis, with local authorities and police required to have due regard to it straightaway; it may later be extended to other organisations, such as businesses and private security firms. The consultation closes on 25 May 2011. (1 March 2011)

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

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Wales

National Assembly for Wales Constitutional Affairs Committee: Supplementary Report on the proposed Local Government (Wales) Measure: this report considers amendments made to the draft Local Government (Wales) Measure that would give the Welsh Ministers power to make amalgamation orders amalgamating two or three principal local authorities. The Committee was concerned that these amendments were submitted without prior consideration by the Assembly, without consultation by outside organisations and nor were they suggested by anyone who gave evidence, and that their effect would be to allow any future Minister to redraw the local government map of Wales if they wished. It found that, while the amendments met the Assembly’s procedural requirements, they were not the ‘wisest course’ of action and gave little time for proper consultation and scrutiny. The report also states there was inadequate explanation of why the added powers were being sought and how they would work in practice. (7 March 2011)

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

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