Authority Update

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 Care	Education
Audit	Equality
Charging	Fire Authorities
Children's Services	Governance
Community Engagement	Wales
Consultation

Adult Social Care

DH: Charging for residential accommodation guide (CRAG) 2011: guidance to local authorities on how to interpret and apply the National Assistance (Assessment of Resources) Regulations 1992 (as amended) when carrying out a financial assessment of a person for whom it is arranging residential care . (11 April 2011)

DH: Ordinary residence: guidance on the identification of the ordinary residence of people in need of community care services, England: revised guidance on how to decide where a person is ordinarily resident for the purposes of the National Assistance Act 1948 and certain other legislation. It includes the changes to the ordinary residence provisions introduced by the Health and Social Care Act 2008. The guide sets out how to identify where responsibility lies between local authorities with social services responsibilities for the funding and/or provision of care for people aged 18 and over who are assessed as needing social care services. (15 April 2011)

Buckinghamshire CC v Kingston upon Thames RLBC; SL (by her Litigation Friend the Official Solicitor), National Society for Epilepsy, and Secretary of State for Health (Interested Parties) [2011] EWCA Civ 457 (CA): SL suffered from epilepsy and had learning difficulties. She had a place in a care home in BCC's area that was funded by KRLBC. BCC appealed against the court's refusal to quash KRLBC's decision to move SL into supported housing in BCC's area. At her annual revieww, SL expressed the wish to move into supported housing, and she was transferred to a bungalow in BCC's area. The effect of the transfer was that SL became ordinarily resident in BCC's area and BCC became responsible under s.29 of the National Assistance Act 1948 for providing her with visiting care services. BCC argued that KRLBC had breached its duties to SL under s.47 of the NHS and Community Care Act 1990 as it had failed to consult BCC as part of the assessment.
The court held, dismissing the appeal, that although the financial burden of the placement would fall upon one local authority, the identity of the local authority on which the burden would fall was not to be a factor in the decision making process by another local authority. There was no legal basis upon which to establish a duty of fairness by KRLBC to BCC to consult when making a decision as to the placement of SL. It was fairness to the service user that had to be at the centre of decision making; fairness to BCC could arise only if performance of that duty required a duty to consult BCC, and there was no basis to create such a duty. If any duty was to be imposed it should be created and its scope defined by statute or in directions from the Secretary of State. (19 April 2011)

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

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Audit

DCLG: Localising audit - delivering value for money for the tax payer: announces that consultants FTI have been appointed to advise on the financial implications of the options for transferring the Audit Commission's in-house audit practice to the private sector, including the possibility of mutualisation. FTI have been appointed on a four week contract following a competitive tender process. They will examine the implications associated with each of the main options for transferring the audit practice into the private sector advising on the value for money considerations and risk. (18 April 2011)

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

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Charging

Djanogly v Westminster City Council [2011] EWCA Civ 432 (CA): D appealed against the High Court's refusal to quash provisions in an Order made by WCC that related to charges for roadside parking of motorcycles within the City of Westminster. The charging scheme was originally introduced under an Experimental Order; following consultation, a permanent Order was made under s.45 of the Road Traffic Regulation Act 1984. D contended that the Order was unlawful as the charging element did not have the aim or effect of achieving a traffic management benefit as required by s.122 of the 1984 Act, and that it was based on flawed figures as WCC consistently overstated the projected cost of the charging scheme and understated the projected revenue in reports which preceded and influenced the making of the Order. The High Court held that the Order was lawful.
The court held, dismissing D's appeal, that the Order had been lawfully made. WCC had not always been consistent about the objectives sought to be achieved by charging; however, if the charging scheme did in fact secure the benefits referred to in s.122, it could not be said to be outside WCC's powers. The questions to consider were: whether there was a basis for reliance on increasing demand; whether the "fairness" consideration was relevant under s.122; and whether it was permissible, when considering these points, to consider the history going back to the Experimental Order, or to focus exclusively on the making of the permanent Order. Looking at these matters, WCC had vires to make the Order. WCC's ultimate decision-maker was not materially misled by the information with which he was provided. The financial material in the reports was simply forecasting, which was assembled in good faith. Errors were either rectified or were not of a nature or quality with the potential to vitiate the permanent Order. (19 April 2011)

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

Ofsted: The voice of the child - learning lessons from Serious Case Reviews: this report provides an analysis of 67 Serious Case Reviews that Ofsted evaluated between 1 April and 30 September 2010. The report focuses on the importance of listening to the voice of the child. It provides an in-depth exploration of this key issue, drawing out practical implications and lessons for practitioners and LSCBs. (13 April 2011)

Audit Commission: Services for young people - Value for money self-assessment pack: this online tool helps those involved in commissioning or delivering services for young people review services in their area to better understand how well they deliver value for money and achieve the desired outcomes, so as to identify scope for improvement. It is intended to be a high-level diagnostic tool and can form the basis of scrutiny of services for young people. (19 April 2011) 

Ofsted: Conducting inspections of children's homes: this guidance is designed to assist Ofsted inspectors when conducting inspections of children’s homes. It applies to the inspection of all children’s homes, including secure children’s homes. It should be read in conjunction with the Framework for inspection and the Evaluation schedule and grade descriptors for inspections of children’s homes. (21 April 2011)

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

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Community Engagement

DCLG: Best value - new draft statutory guidance: seeks views on draft statutory guidance that sets out some reasonable expectations of the way best value authorities should work with voluntary and community groups when facing difficult funding decisions. The new guidance is issued under s.3 LGA 1999 and will replace the 2008 guidance on the duty to involve and the duty to prepare Sustainable Community Strategies, Creating Strong, Safe and Prosperous Communities. The consultation closes on 14 June 2011. (13 April 2011) 

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

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Consultation

Corporation of the Hall of Arts & Sciences v Albert Court Residents' Association [2011] EWCA Civ 430 (CA): the Corporation, which managed the Royal Albert Hall (RAH), appealed against the quashing of the Council’s decision granting its application for the variation of its premises licence under the Licensing Act 2003. ACRA was the residents' association for people living at Albert Court, which was very close to the RAH. The Council had sent circulars to local inhabitants inviting representations on the Corporation's application for variation but had not included ACRA or the individual residents of Albert Court. ACRA submitted representations late but the Council refused to consider them and granted the variation. The judge granted ACRA’s application for judicial review, holding  that, although the Council's refusal to consider late representations was lawful, the variation was unlawful because it had failed to fulfil ACRA's legitimate expectation that they would be notified of the Corporation’s application. 
The Court of Appeal held, allowing the appeal, that as the Council had not received any "relevant representations", within the meaning of s.35(5) of the Licensing Act 2003, by the due date, it had been under a duty to grant the variation and the Corporation had had an enforceable public law right to the grant. Once the conditions set out in s.35(1) were satisfied, it would go against the Corporation's entitlement for the variation to be undermined by the Council's failure to carry out a proper notification process. An otherwise legitimate expectation could not require a public authority to act contrary to statute. The Council's decision to exclude ACRA from its distribution of circulars was irrational but the remedy for that type of complaint was limited to an application for reconsideration under s.51 of the 2003 Act. The court could not subvert the statutory scheme by postponing the Corporation's application to give ACRA an opportunity to make timely representations. (13 April 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: A consultation on school funding reform - Rationale and principles: seeks views on the current "spend-plus" school funding system. It asks how changes could be made to result in a system that is fair, transparent and able to support a diverse range of school provision. This is the first part of a two-stage consultation process; taking into account these views, further proposals will be published for consultation later this year. The consultation closes on 25 May 2011. (13 April 2011)

DfE: Academies' pre-16 funding - Options for the 2012/13 academic year: this consultation runs alongside the one on school funding reform (above). It seeks views on options for changing Academy funding for academic year 2012/13 if school funding reforms are not to be in place for financial year 2012-13.  The DfE considers that the current method of replicating local authority formulae and calculating a grant in lieu of central services which a local authority would provide for a maintained school is too complex, lacks transparency, is prone to error and is administratively inefficient, particularly since the growth in Academy numbers.  The proposed option is to roll forward per pupil school budget share figures from the previous year. The consultation closes on 25 May 2011. (13 April 2011)

DfE: How to apply to open a Free School: updated guidance for teachers, charities and parents on the process for setting up new independent state schools, known as Free Schools. It includes details of the deadlines for applications to open Free Schools from September 2012, with links to forms and financial plan templates. (19 April 2011)

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