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 Services	Equality and Discrimination
Audit	Parish Councils
Best Value	Performance
Children's Services	Police Authorities
Community Engagement	Procurement
Contracting Out	Public Health
Delivery of Services	Traffic and Transport
Education	Wales
Bevan Brittan's Local Government Training Programme

 

Adult Social Services 

Audit Commission: Improving local domestic abuse services: web-based self-assessment tool and resources to help those working in domestic abuse services assess their partnership's performance and identify areas for improvement. (1 September 2011)

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

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Audit

Audit Commission: Contract areas announced for audit practice outsourcing: announces that the Commission has formally launched the process for outsourcing the work of its Audit Practice. It has issued the Contract Notices for the procurement of audit services for principal bodies and limited assurance audits. For the principal bodies' procurement, bids will be invited for ten contract lots in four geographical regions. Under the timetable for the procurement process, potential providers must submit their completed PQQs by 7 October 2011.
The Commission has also published its Procurement strategy setting out the objectives of the two procurement exercises and how they will be carried out, and the formal Protocol, to which all Commission staff have been required to sign up, to ensure propriety in the preparation of any employee-led bids. (6 September 2011)

Audit Commission: Proposed work programme and scales of fees 2012/13 - Local government and community safety: sets out the work the Audit Commission plans to undertake in the local government and community safety sectors during 2012/13, with the associated scales of audit fees. It will also set out its proposals for audit fees beyond 2012/13 when it publishes the final 2012/13 work programme and scales of fees in April 2012. (5 September 2011) 

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

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Best Value

DCLG: Best Value statutory guidance: guidance to councils considering changing funding to local voluntary and community groups and small businesses, on how best to achieve Best Value in their areas. In deciding how best to fulfil their Best Value Duty, councils are required to consult those using, or likely to use, a local service. This should include community and voluntary organisations. This new one page of statutory guidance on the Best Value Duty sets out some reasonable expectations of the way authorities should work with voluntary and community groups and small businesses when facing difficult funding decisions. It states that councils should not pass on larger reductions to their local voluntary and community sectors and small businesses than they take on themselves. (2 September 2011)

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

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Children's Services

DfE: Government announces £6 million for children in care and families who need extra support: announces that 37 local authorities are to share an additional £6m funding in order to expand their own intensive intervention programmes that address the need for stability in a child’s life. (30 August 2011)

DWP: Work-focused services in children’s centres pilot - Final report: sets out the findings from the final stage of the evaluation of a pilot scheme that operated in ten local authority areas (30 Sure Start Children’s Centres in total) in England, providing work-focused services through a dedicated Jobcentre Plus Personal Adviser, as well as activities designed to meet local needs. It ran from January 2009 to March 2011. The aim of the pilot was to test how children’s centres can offer a more effective means of engaging parents in labour market activity, moving them closer to work, and ultimately into employment. (1 September 2011)

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

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Community Engagement

Office of the Deputy Prime Minister: Riot communities and victims panel announced: gives details of the members of the Communities and Victims Panel that will listen to the experiences of those in communities affected by the August riots and disorder, in order to understand why it all happened and how to move on. The Panel, chaired by Darra Singh, will deliver its early findings by November, and present its final report to by March 2012. (31 August 2011)

Home Office: £5.5 million community crime fighting fund open for bids: announces that the £5m Innovation Fund, which is designed to bring together active citizens and encourage new and creative ways of working to tackle crime, is now open for bids from voluntary and community groups. National voluntary sector bodies can also bid for £550,000 through the Support and Modernisation Fund, which will provide practical help and advice to local frontline voluntary groups that support Home Office objectives. The closing date for applications is 1 December 2011. (6 September 2011)

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

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Contracting Out

Draft  Local Authorities (Contracting Out of Community Infrastructure Levy Functions) Order 2011: this Order is made under s.70(2) of the Deregulation and Contracting Out Act 1994 which enables a Minister to provide by order for a function of a local authority to be exercised by such person(s) as may be authorised by the local authority. The Order, once in force, will permit local authorities to outsource all or part of their functions under Part 11 of the Planning Act 2008 that relate to the setting, charging, collection, enforcement and spending of the Community Infrastructure Levy. (9 September 2011)

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

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Delivery of Services

Rural Services Network: Costs of providing services in rural areas: this research report examines whether, and the extent to which, there is a ‘rural cost penalty’ associated with the additional costs of delivering services in rural areas, not arising from differences in policy. It finds that rural local councils receive 50% less government grant per head of population, and that people living in the countryside pay £100 a year more in council tax than urban inhabitants yet receive fewer public services. Rural authorities face significant challenges which they are addressing with innovative work, such as greater partnership working, reorganisation of schools/services/routes, efficient service planning and the use of new technology. However, this work is taking place against the backdrop of significant funding pressures, with rural authorities receiving significantly less funding than urban authorities.  Rural authorities’ ability to address these challenges will therefore be dependent upon the level of funding that they have available to them going forward. It calls for the 'rural gap' to be addressed now as part of the Local Government Resource Review to shake up council grants and business rates, otherwise the options under consultation threaten to lock in that unfairness for a further 10 years. (4 September 2011)

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

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Education

DfE: 24 Free Schools to open across England this year: gives details of the 24 schools with whom Funding Agreements have now been agreed and signed, enabling them to open in September 2011. (30 August 2011)

DfE: Record number of under-performing schools to become academies: reports that 45 sponsored academies will open in September, with a further 49 due to open during this academic year. In addition, 185 good schools will become academies this month, bringing the total number of open academies to 1,300. (5 September 2011)

DfE: Residential special schools - National Minimum Standards: sets out the minimum standards to safeguard and promote the welfare of children for whom residential accommodation is provided by a Residential Special School. The stnadards do not override the need for schools to comply with other legislation such as the Education (Independent School Standards) (England) Regulations 2010, the Education (Non-Maintained Special Schools) (England) Regulations 2011, and legislation covering health and safety, fire or planning regulations. (30 August 2011)

DfE: Boarding schools - National Minimum Standards: contain arrangements to safeguard and promote the welfare of children for whom accommodation is provided by boarding schools. They provide the minimum standards below which no school is expected to fall in securing outcomes for boarders. The stnadards do not override the need for schools to comply with other legislation such as the Education (Independent School Standards) (England) Regulations 2010, and legislation covering health and safety, fire or planning regulations. (30 August 2011)

Ofsted: Common Inspection Framework 2012:  seeks views on proposals to revise the framework for inspection of further education (FE) colleges, work-based learning providers, adult and community learning provision and ‘Next Step’ provision. The proposed changes will streamline and simplify this framework and focus it more sharply on the areas that have most impact. The consultation closes on 24 November 2011. (1 September 2011)

Ofsted: Safeguarding in schools - best practice: this report distils the features of exceptionally good practice in safeguarding in schools where safeguarding was judged to be outstanding between September 2009 and July 2010. It  finds that the measures put in place by the best schools to keep children safe can be replicated by every school. As well as promoting best practice, the report sets out clearly how Ofsted inspects a school’s safeguarding procedures. The key word for both inspectors and schools is ‘reasonable’. The report aims to reassure schools that Ofsted makes judgements about safeguarding that are both fair and reasonable. (2 September 2011)

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

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Equality and Discrimination

JG v Lancashire CC [2011] EWHC 2295 (Admin) (Admin Ct): the claimants were two disabled women. They applied for judicial review of the council's decisions relating to the provision of adult social care services. The contested decisions reduced the budget for the provision of these services and also amended two of the council's policies by raising the eligibility threshold for adults accessing social care services under the Fair Access to Care Services Scheme, and changing how the council charged for home social care services received. The claimants contended that in approving the budget and  the amended policies, the council had failed in its duty under s.49A of the Disability Discrimination Act 1995 (DDA) to have "due regard" to the need to take steps to promote equality of opportunity for disabled people and the need to take account of disabled persons' disabilities. 
The court held, dismissing the claim, that there was nothing wrong in principle with the council's approach of taking a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, but not committing itself to the implementation of specific policies until it had carried out a full and detailed assessment of the likely impact. Nor was this approach inconsistent with the duties under the DDA. The procedure was not a cosmetic exercise in which the council was doing no more than going through the motions of setting out the consequences of a pre-determined course, but it had kept an open mind as to the precise policies that would be implemented. It was sensible, and lawful, for the council first to formulate its budget proposals and then, at the time of developing the policies that were under challenge, to consider the specific impact of proposed policies that might be implemented within the budgetary framework. The judge also rejected the arguments that the council's mitigating actions were inadequate: the challenge was not a Wednesbury challenge to the reasonableness of the council's budget or the policies that it has adoptedbut was that it had failed to have due regard to the relevant factors under the DDA. Whether or not the mitigating steps were adequate was a matter for the council to determine. The fact that the council did direct its mind towards the question of what mitigating steps could be taken so as to lessen the impact of the relevant policies on affected users demonstrated that the council did in fact have due regard to the matters specified in the DDA. (2 September 2011)

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

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Parish Councils

R (Offerton Park Parish Council) v Stockport MBC (Unreported, Admin Ct): the parish council applied for judicial review of the local authority's decision to make a Reorganisation of Community Governance (RCG) Order under the Local Government and Public Involvement in Health Act 2007 abolishing the parish council. The local authority received two petitions from 348 of the parish's 3,700 residents stating that they believed that the parish council served no useful purpose and should be dissolved. It then carried out a community governance review which found that 8.5% of the electorate were in favour of abolition of the parish with 2% of the electorate against. The local authority also carried out a parish poll as to whether the parish council should be dissolved: 11% of the electorate were in favour of abolition and 5.6% were against. There was then a further consultation which explicitly asked whether the parish council should be abolished; of the 25% of the electorate who responded, over twice as many individuals were in favour of abolition of the parish council as its retention. The local authority held that, in light of the consultation feedback and having regard to the fact that the majority of parish residents were opposed to the existence of the parish council, it was appropriate to make an RCG Order so as to abolish the parish council. The parish council contended that the local authority's decision was irrational as the only safe inference to be drawn from the consultation exercise was that a large majority of residents, namely 75%, had no preference either way as to whether the parish council should be abolished or retained and that the local authority wrongfully failed to have regard to that material matter.
The court held, granting the application, that the decision should be quashed. The authority's conclusion that the consultation showed a majority of residents in favour of abolition was irrational and its assertion that the public generally, as opposed to a section of it, favoured abolition was unjustified. The authority had unlawfully failed to have regard to a material consideration, namely that the large majority of the electorate had not expressed themselves in favour either of abolition or retention of what was an established tier of local government which, in accordance with the statutory guidance, should only be abolished where shown to be clearly justified. 
Obiter: it was not necessary to obtain the vote of an absolute majority in favour of abolition before a parish could lawfully be abolished. If for good reason there was clear and sustained local support for abolition from what was considered to be a sufficient body of the electorate then, if the majority was indifferent, abolition might be justifiable, provided that due regard was had to the statutory guidance. (24 August 2011)

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

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Performance

Electoral Commission: Draft performance standards for Returning Officers in Great Britain: seeks views on a revised set of draft performance standards for Returning Officers (ROs). The consultation covers both the overall set of performance standards and on the approach to monitoring and reporting on the performance of ROs. The consultation closes on 14 October 2011.  (5 September 2011)

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

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Police Authorities

Castle v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin) (Admin Ct): C were three children aged between 14 - 16 who took part in a demonstration in Central London against a proposed rise in university tuition fees and removal of the Educational Maintenance Allowance. The police decided to cordon off a crowd of some 3,000 demonstrators, including C, in Whitehall, and C were unable to leave that area for over six hours. C sought declarations that their containment by the police was unlawful, along with damages. They contended that the police's decision to detain children constituted a breach of their duty under s.11 of the Children Act 2004 and so rendered the containment unlawful, and also that the police exceeded their common law powers and acted in breach of C's rights under Art.5 ECHR (deprivation of liberty).
The court held, refusing the application, that the chief officer's statutory obligation under s.11 was not confined to training and dissemination of information but was to ensure that decisions affecting children had regard to the need to safeguard them and to promote their welfare. The impact which the duty had upon the performance of a function would depend to a significant degree upon the function being performed and the circumstances in which it was being performed; a police officer would not be deterred from performing his public duty to detect or prevent crime just because a child was affected but when he did perform that duty he had to have regard to the statutory need. The s.11 duty required that the police's planning for alternatives to containment and to minimise its impact on innocent third parties should, where appropriate, have embraced the need to safeguard children and promote their welfare. If the decision maker was unable to show that he could not, by taking reasonable steps, have avoided the need to use containment, or have mitigated the consequences to innocent third parties, in particular children, then he would have acted unlawfully towards them in breach of his public duty. On the facts in this case, the police were not in breach of this duty or of any of their public law duties. Regarding the art.5 claim, any interference which did take place was for a legitimate reason, in accordance with the law, and proportionate to the legitimate aim of preventing an imminent breach of the peace. (7 September 2011)

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

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Procurement

First4Skills Ltd v Department of Employment and Learning [2011] NIQB 59 (QBD (NI)): F4S and another private sector contractor, X, tendered unsuccessfully for the DEL's award of a contract for the provision of training services. Both F4S and X wrote separately to DEL stating that they intended to bring a legal challenge to the contract award, so DEL announced to all bidders that they had decided to defer the award for an unspecified period. F4S and X then each initiated proceedings challenging the award, triggering the automatic suspension under Reg.47G of the Public Contract Regulations 2006. DEL applied to have X's automatic suspension set aside but the court refused this application. The next day DEL applied to have F4S's automatic suspension lifted.
The court held, refusing the application, that this application was a misuse of the court process. The court gave guidance on the case management approach where more than one aggrieved bidder sought to challenge the same procurement process. "Proceedings" in Regs.47G and 47H should be construed as "any proceedings", so where more than one disappointed bidder had initiated separate legal challenges, the court's dismissal of an application for an interim order under Reg.47H in any of the actions prohibited the execution of the contract with any party and so removed the need for any further such application in different proceedings. Here, it would be inappropriate and illogical for the court to make an order in the second application that conflicted with its order in the first application. It would also be incongruous to make an order in the second application that purported to authorise the contracting authority to take a course which would be in breach of the court's first order.
The court also looked at the merits of DEL's application, but ruled that it would follow the decision in X's proceedings. The balance of convenience was in favour of F4S,  taking into account F4S's cross-undertaking in damages and the reasonable prediction that these proceedings would be completed before the contract extension expired in March 2012. (30 June 2011)

Amendments to the Public Contracts Regulations 2006: we have published an article that considers the amendments to the Public Contracts Regulations 2006 made by the Public Procurement (Miscellaneous Amendments) Regulations 2011, which come into force on 1 October 2011. (2 September 2011)

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

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Public Health

DH: Death certification reforms - new duty on local authorities: the Health and Social Care Bill that is currently going through Parliament includes an amendment to the Coroners and Justice Act 2009 transferring responsibility for the appointment of medical examiners and related activities from PCTs to local authorities. This will be funded by a statutory fee chargeable for all deaths that are not investigated by a coroner. Local authorities will be able to use service models that are appropriate for their area, including: direct provision; commissioning the service from a healthcare provider; integration with existing related services; and collaboration with neighbouring authorities to provide a combined service. This briefing provides an overview of the death certification reforms and an update on work to prepare for implementation of these reforms from April 2013. (6 September 2011)

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

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Traffic and Transport

DfT: Delivery of local road safety: this report by AECOM, in association with the Tavistock Institute, evaluates the different strategies and plans for delivering road user safety, assesses what is being delivered, the key processes and how efficient local authority practices are, and identifies lessons and areas of good practice in road user safety investment. (6 September 2011)

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

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Wales

Local Government (Wales) Measure 2011 (Commencement No. 1) Order 2011 (SI 2011/2011 (W.221) (C.74)): this Order brings certain provisions of the 2011 Measure into force on 31 August 2011. The sections are:

• ss.1-3 (survey of councillors)
• Part 8 (ss.141-158) (Members' payments and pensions - Independent Remuneration Panel for Wales)
• Part 9 Chapter 1 (s.161) (guidance about collaboration)
• Part 9 Chapter 2 (ss.162-171) (amalgamation).

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 in 2011 include:

• 21 September (London): Governance, service restructuring and social enterprise
• 23 September (Birmingham): Trusts and charities 2011 (organised by LSB Law)
• 27 September (London) & 5 October (Birmingham): Outsourcing for the public sector
• 11 October (Bristol), 12 October (Birmingham) & 18 October (London): Employment update
• 12 October (London): Re-negotiating contracts (organised by LGG Training)
• 10 November (London): How to be a Monitoring Officer
• 23 November (London): Waste and energy review
• 13 December (London): The Localism Act

For a list of all seminars see our new Events Programme for 2011/12. Full details, along with information on how to book a place, will be posted on our website about 6-8 weeks ahead of the scheduled date.

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