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	Executive Arrangements
Anti Social Behaviour	Finance
Audit and Accounting	Fire and Rescue Authorities
Benefits	Highways
Byelaws	Maladministration
Children's Services	Planning
Community Engagement	Police Authorities
Coroner Service	Procurement
Education	Public Bodies
Employment	Standards
Bevan Brittan's Local Government Training Programme

 

Adult Social Services

Home Office: Missing children and adults strategy: this strategy provides a core framework for all local organisations to work to deliver collectively the best protection possible for vulnerable missing children, adults and their families, based on the key objectives of prevention, protection and provision. It encourages local agencies with a role in tackling this important issue to review the arrangements they have in place with their local partners, and consider whether they can and should be doing more. The strategy also outlines the role of Government in supporting local delivery through the provision of national capability and support. (1 December 2011)

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

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Anti Social Behaviour

Home Office: Support to local areas to tackle gang and youth violence: announces that 22 areas with high rates of serious violence, admissions to hospital for assault by sharp object and gang problems will receive funding and support to tackle gang and youth violence. Details of the areas and the amount of funding are set out in the provisional funding allocations. Each area will also receive support and advice from the newly established ending gang and youth violence team. (12 December 2011)

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

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Audit and Accounting

Audit Commission: Auditing the accounts 2010/11 - Councils and local government bodies, police authorities and fire and rescue authorities: this report summarises the quality and timeliness of financial reporting by principal local public bodies. it finds that, although challenging, local government has coped well with the transition to International Financial Reporting Standards (IFRS). Performance compares well with last year, despite the additional challenges of IFRS; however, the transition to IFRS had had an impact on timeliness and also on quality, with a significant increase in the number of bodies needing to make material accounts adjustments following the audit.
The Commission has also published two other reports covering parish councils and internal drainage boards, and a list of qualified 2010/11 opinions. (15 December 2011)

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

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Benefits

DWP: Additional £30m for local authorities to support tenants in adapted accommodation and foster carers: announces additional funding to enable local authorities to help around 40,000 households including disabled people and foster carers living in the social rented sector. The additional money will be added to the Discretionary Housing pot to support claimants living in significantly adapted accommodation and to help foster carers, including those who are in between placements of foster children when the new social sector size criteria measures come into force in 2013. Alongside the additional funding, the Minister has also confirmed the Housing Benefit reduction rates for social sector claimants with spare bedrooms. (14 December 2011)

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

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Byelaws

National Assembly for Wales: Local Government Byelaws (Wales) Bill: this Bill has been introduced into the National Assembly and is currently at Stage 1 (committee consideration on the general principles). It aims to simplify procedures for making and enforcing local authority byelaws in Wales by removing the requirement for confirmation by the Welsh Ministers of specified new byelaws. The Bill introduces an alternative procedure under which authorities would consult locally before making a byelaw. It also provides an optional alternative, and more efficient, means of enforcement through fixed penalty notices. The Communities and Local Government Committee is scheduled to report by 30 March 2012. The Bill's progress can be followed on the National Assembly website. (28 November 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

DCLG: Tackling troubled families: announces a new programme that  aims to turn around the lives of some of the country's most troubled families by the end of this Parliament. The programme will run primarily on a Payment by Results basis to incentivise local authorities and other partners to take action to turn around the lives of troubled families in their area by 2015. The Government will offer to pay up to 40% of local authorities' costs of dealing with these families, payable only when they and their partners achieve success with families. The Government will also fund a national network of troubled family 'trouble-shooters' in each upper-tier local council who will operate at a senior level to oversee the programme of action in their area. DCLG has established a new Troubled Families Team, headed by Louise Casey CB, to join up efforts across Whitehall, provide expert help to local areas and drive forward the strategy. The programme will be backed by £448m funding to the Troubled Families Unit which will need to be match-funded by local areas and will follow a Payment by Results model. (15 December 2011)

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

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Community Engagement

Public Administration Select Committee: The Big Society: this report critically examines what the Big Society project means for Whitehall and whether the implementation of this policy is on track to succeed. It warns that the Big Society project is hampered by the lack of a clear implementation plan, leading to public confusion about the policy agenda. The Committee found that there is little clear understanding of the Big Society project among the public, and there is confusion over the Government’s proposals to reform public services. In particular, the ambition to open up public services to new providers has prompted concerns about the role of private companies which have not thus far been adequately addressed by Ministers. It recommends greater clarity on the roles of charitable, private and public providers of public services. It also presses the Government to outline how crucial issues of accountability in terms of quality and regulatory powers will be managed in the Big Society project, and in particular accountability for public expenditure. There is also uncertainty about how many charities in general, and small and local community groups in particular, are willing and able to deliver public services. EU contracting rules need to be revised and smaller providers should be consulted on the legislative and bureaucratic barriers. The Committee proposes a number of steps to change the way that the Civil Service and local authorities commission and manage contracts for public services, and cautions that unless these steps are taken, the Big Society policy agenda will not achieve what the Government intends. (14 December 2011)

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

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Coroner Service

MoJ: The draft Charter for the current Coroner Service - response to consultation: this report summarises responses received to the consultation on a draft Charter for the current Coroner Service. The proposed Charter would set out uniform standards of service that bereaved family members, other properly interested persons and witnesses could expect to receive from Coroner Services across the country, would ensure that all coroners’ offices in England and Wales were aware of the standards they should be meeting, and also clarify how the public could complain about the level of service received or the personal conduct of a coroner. The final version of the combined Guide to Coroners and Inquests and Charter will be published in the new year. (15 December 2011)
The House of Commons Library has published a Standard Note on Coroners' inquests that summarises the procedure for coroners' inquests, the Government's plans to establish a Chief Coroner under the Coroners and Justice Act 2009, and the draft Charter.

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

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Education

DfE: Consultation on the 'minded to' decision for the academies funding transfer for 2011-12 and 2012-13: seeks views on the decision that the Education Secretary is minded to take in relation to both the mechanism for calculating the amount to be transferred and the mechanism which it is proposed should be adopted for managing the transfer of academies funding for 2011-12 and 2012-13. The consultation closes on 12 January 2012. (9 December 2011)

DfE: Disadvantaged school children to benefit from £1.25 billion funding from April 2012: announces that the Pupil Premium for disadvantaged school children will increase by £122in 2012-13 to £600 for each pupil. In addition,  the per pupil premium to schools with service children is being increased by £50 to £250. The Pupil Premium provides additional funding on top of the main funding a school receives. It goes to children who are currently on Free School Meals and to children in care who have been looked after by local authorities for more than six months. It is being extended to cover any child that has been registered for Free School Meals in the past six years. (12 December 2011)

Ofsted: Schools that stay satisfactory: this report presents the inspection data on secondary schools that seem to be ‘stuck at satisfactory’, and then examines the inspection history of a sample of these schools in more detail to understand why they have not improved consistently. (12 December 2011)

DfE: Building engagement, building futures - Our strategy to maximise the participation of 16-24 year olds in education, training and work: sets out the Government's strategy to improve the opportunities for young people, so they can succeed in education and training and gain the skills they need to secure an apprenticeship or employment. It includes radical reforms to schools, vocational education, skills and welfare provision, with five priorities for action:

• raising attainment in school and beyond to ensure that young people have the skills they need to compete in a global economy;
• helping local partners to provide effective and coordinated services that support all young people, including the most vulnerable, with a target of achieving full participation for 16-17 year olds by 2015;
• encouraging and incentivising employers to inspire and recruit young people by offering more high quality apprenticeships and work experience places;
• ensuring that work pays and giving young people the personalised support they need to find it, through Universal Credit, the Work Programme and our Get Britain Working measures; and
• putting in place a new Youth Contract worth almost £1bn over the next three years to help get young people learning or earning before long term damage is done.

Alongside the report, the DfE has announced further funding and extra work experience places as part of its priorities for action. (15 December 2011) 

DfE: A consultation on revised statutory guidance and regulations for exclusions from schools and pupil referral units in England: s.4 of the Education Act 2011 (once in force) changes the process by which the decision of a governing body to uphold a permanent exclusion can be challenged. This consultation paper seeks views on revised exclusion guidance and draft School Discipline (Pupil Exclusions and Reviews) (Maintained Schools) (England) Regulations 2012 that reflect the new exclusion process, including proposals for how regulations will be applied to Academies and Free Schools. The DfE does not intend to widen the scope of the guidance or lengthen it considerably, but aims to increase its effectiveness by ensuring that it is concise and directly relevant to the exclusion process. New guidance on the use of alternative provision will be released next year and the exclusion guidance will be updated to cross-refer where appropriate. The consultation closes on 17 February 2012 and the new exclusion process will start in September 2012. (16 December 2011)

Ofsted: The framework for school inspection from January 2012: this framework sets out how the general principles and processes of inspection are applied to maintained schools and several other types of school in England. It states the statutory basis for inspection and summarises the main features of school inspections carried out under s.5 of the Education Act 2005 from January 2012. The new arrangements aim to ensure that inspection has an even stronger impact on driving improvements in the quality of education and raising achievement for all pupils. Inspectors will concentrate on four key areas: the achievement of pupils; the quality of teaching; the effectiveness of leadership and management; and, standards of behaviour and safety in schools. From January, Ofsted will be adopting an increasingly proportionate approach to inspection, targeting those schools that most need to improve. Outstanding schools will no longer be subject to regular inspections unless risk assessment raises concerns about their performance, while Good schools will continue to be inspected in a five year cycle, and Satisfactory schools will be inspected every three years unless particular concerns emerge.
There is also an Evaluation schedule for the inspection of maintained schools and academies from January 2012 and guidance for inspectors on Conducting school inspections. (16 December 2011)

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

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Employment

Audit Commission / LGA: Work in progress - Meeting local needs with lower workforce costs: this joint report shows how local authorities across England are reducing their workforce costs, with some finding creative solutions. The report finds that all councils must reassess what they do, how they do it, and what their priorities are, whatever their different financial challenges. It concludes that major restructuring may be the only way to maximise savings and protect key services and, even though councils are finding ways to cut the pay bill without losing jobs, redundancies are inevitable. (7 December 2011)

Birmingham City Council v Abdulla [2011] EWCA Civ 1412 (CA): this case concerned the High Court's jurisdiction to hear claims under the Equal Pay Act 1970 and the exercise of the court's discretion under s.2(3) of the 1970 Act to strike out a claim where it considered that the case could more conveniently be disposed of separately by an employment tribunal.
The claimants failed to issue equal pay claims against the Council in an employment tribunal within six months of the termination of their employment, as required by the 1970 Act, so instead they issued proceedings in the High Court for breach of contract, which had a six year limitation period. The Council applied for a declaration that the court had no jurisdiction, or should not exercise the jurisdiction which it might have, to determine equal pay claims. The claimants argued that, if their claims were struck out in the ordinary courts, the employment tribunal would be unable to dispose of them on their merits but it would have to dismiss them as the limitation period in the employment tribunal had already expired with no possibility of extension. The Council contended that the equal pay claims should be struck out, as they could be more conveniently disposed of by an employment tribunal, and that the expiration of the time limit applicable to equal pay claims in the employment tribunal was an irrelevant factor in the exercise of the court's discretion under s.2(3). The judge dismissed the Council's application on the basis that, if he acceded to the Council's application, the claimants would be left without any forum in which to pursue their claims on their merits.
The court held, dismissing the Council's appeal, that the judge had not erred in his construction of s.2(3) and there was no error of legal principle in his application of it to the facts of the case. The draconian consequences of striking out the claims in the ordinary courts would be that the claimants would be deprived of their rights to pursue claims which they had brought in time in a court having jurisdiction to determine them on their merits, and there would be nowhere else available for the claimants to have their claims determined on their merits, as the employment tribunal would be bound to dispose of them for lack of jurisdiction. On a fair reading of s.2(3), that outcome would not be a case of the claims being disposed of "more conveniently" in a different forum. For the court to exercise its discretion so as to leave the claimants without the possibility of a determination on the merits in either jurisdiction did not seem to be what Parliament had intended when it gave claimants a jurisdictional choice; still less did it seem to be a sensible or just outcome in the majority of cases. (29 November 2011)

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

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Executive Arrangements

Draft Local Authorities (Conduct of Referendums) (England) Regulations 2012: these draft regulations provide for the conduct of referendums to be held under Part 1A of the Local Government Act 2000, relating to the question of whether a county council in England, district council or London borough council should change its existing governance arrangements to different (Mayor & Cabinet, Leader & Cabinet or Committee) governance arrangements. They prescribe the wording for the referendum questions, and set out the procedure for the conduct of the referendum. A referendum can be challenged by the bringing of a referendum petition. (5 December 2011)
Draft Mayoral Referendum Orders for 11 cities have also been laid before Parliament, requiring the council to hold a referendum on 3 May 2012 on whether to cease to operate their existing form of governance arrangements and to start to operate a Mayor & Cabinet executive instead. The result of this referendum is binding and the Secretary of State can take any action that the authority are required to take by virtue of this Order if the authority fails to take that action. The Orders are available on the Legislation website.

Local Authorities (Referendums) (Petitions) (England) Regulations (SI 2011/2914): these regulations, which come into force on 23 January 2012, revoke and replace the Local Authorities (Referendums) (Petitions and Directions) (England) Regulations 2000 (SI 2000/2852). They provide for the holding of a referendum on whether a local authority should change to a different form of governance where at least 5% of the local government electors in the authority’s area petition the authority. The regulations implement changes necessitated by the Localism Act 2011 and the removal of provisions in relation to directions. (8 December 2011)

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

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Finance

DCLG: Plain English guide to the Local Government Finance Settlement 2012 - 2013: the Government has announced the provisional Local Government Finance Settlement 2012-13 which determines how much grant it will give to each local authority. This paper explains the different features of the settlement in more detail and includes general background details of the way local government is funded. It focuses on councils' "spending power" rather than just formula grant, thus including other government grants, NHS support for health and social care, and council tax receipts. On this basis, the Government states that no authority will see their spending power fall by more than 8.8% in either 2011-12 or 2012-13, while the average fall across local authorities in 2012-13 is 3.3%. The full consultation paper, background documents and technical data are on the DCLG Local Government Finance website. The consultation on the settlement runs to 16 January 2012; Ministers will then finalise their proposals and the settlement for 2012-13 will be debated in Parliament in early February. (8 December 2011)
For a detailed summary of the 2012-13 settlement, see the LGA's briefing paper.

Home Office: Police grant report (England and Wales) 2012-13: this report sets out the Home Secretary’s determination for 2012-13 of the aggregate amount of grants for police purposes that she proposes to pay and the amount of grant she proposes to pay each police authority. (8 December 2011)

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

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Fire and Rescue Authorities

DCLG: Fire and Rescue National Framework for England: seeks views on a draft National Framework that sets out the priorities and objectives for English Fire and Rescue Authorities (FRAs) in connection with the discharge of their functions. The draft National Framework clarifies the role of FRAs and the Government in delivering national resilience and the importance of accountability and scrutiny. In particular, it discusses ways of enabling FRAs to tailor their services to meet local needs whilst meeting the wider needs of national resilience. The consultation closes on 19 March 2012. (13 December 2011)

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

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Highways

DfT: Road network policy - The response: sets out the Government's response to the consultation about policy on roads classification, the primary route network and the strategic road network. It announces that from April 2012, local authorities will be able to set the classification of all the roads under their control without having to secure Whitehall approval. This will help them make clear to drivers which roads are most suitable for through journeys, potentially reducing congestion on local routes and cutting unnecessary bureaucracy both locally and nationally. The local authority will deal with the everyday operation of the system and central Government will only get involved via an appeals system where there are serious disagreements about a council's decision. Changes to roads that cross administrative borders will only be implemented following consultation with neighbouring authorities. Local authorities will be required to send a formal record of any changes to its road network to the DfT but the reporting system will be streamlined. (6 December 2011)

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

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Maladministration

House of Commons Library: The Local Government Ombudsman: this Standard Note gives a brief guide to the procedure for taking a complaint about the actions of a local authority to the Local Government Ombudsman (LGO) service. At present the LGO cannot compel a council to implement its recommendations although, in practice, councils almost always do act on them. There is no right of appeal against a decision by the LGO but it is possible to seek judicial review where it is believed that the legal basis of a decision is flawed. The Open Public Services White Paper says that the Government will establish how the various ombudsmen, including the LGO, can play a greater role in supporting the ability of individuals to exercise choice in specific areas. The note also discusses the Local Government Ombudsman (Amendment) Bill 2010-11, a Private Members' Bill introduced by Christopher Chope MP, which extends the LGOs’ remit to include occasions where an event was banned by a local authority on health and safety grounds. The Bill has Government support and had its 2nd Reading on 10 June 2011. (15 December 2011)

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

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Planning

R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575 (CA): the Council appealed against the High Court's refusal of its application to quash provisions relating to houses in multiple occupation (HMOs) in the Town & Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2010 and the Town & Country Planning (Compensation) (No.3) (England) Regulations 2010 . The Council contended that the SoS had erred in law by failing sufficiently to consult local planning authorities before making the Orders. In May 2009 the Government had consulted widely on three options for changing the permitted development rights and use classes regarding HMOs. Following the 2010 General Election, the new Government took the view that the level of regulation provided in the proposed Orders was not justified and it decided to implement Option 3. Ministers were advised that there was no formal requirement to consult on this change of policy but the views of key stakeholders, including the LGA, were sought. The Council submitted that a fuller consultation was required - all local planning authorities should have been consulted and given an appropriate time to respond.
The court held, dismissing the appeal, that a decision-maker could not routinely pick and choose whom he would consult and a fair consultation required fairness in deciding whom to consult as well as fairness in deciding the subject matter of the consultation and its timing. However, the fairness of the 2010 consultation had to be considered in the context of a very full consultation having been conducted in 2009 in which all local planning authorities were given an opportunity to make representations upon a series of options, including Option 3. The entire process did not need to be repeated on a change of Government policy. The Government was entitled in 2010 to conduct a more limited consultation, both as to the identity of consultees and the content and duration of the consultation. Although the 2010 consultation was conducted mainly as a public relations exercise, it was still capable of being fair and it left open the possibility of further consultation if significant issues arose. The decision to make the Orders was a political decision which the SoS was entitled to make, so he was then entitled to make the consultation a limited one and to decide that there was no evidence of significant new issues arising which required fuller consultation. (16 December 2011)

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

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Police Authorities

Home Office: Home Secretary outlines plans for new police professional body: announces that the Home Office is to establish a new police professional body that will take responsibility for developing professional skills and leadership in the police service. It will act in the public interest and will be a single voice for the police service with a publicly accountable board and independent chairperson. The decision follows on from Peter Neyroud's review of police leadership and training which made a number of proposals and recommendations including the creation of a chartered professional body for policing that would set standards and ensure accreditation of these, a new delivery body for police leadership and training and a new qualifications framework for policing. (15 December 2011)

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

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Procurement

Public bodies and competition law - A guide to the Competition Act 1998: public bodies must comply with UK and EU prohibitions on anti-competitive agreements and abuse of a dominant position if and when they engage in 'economic activity', as opposed to carrying out non-economic, wholly social functions or exercising public powers. This guide provides a high level outline of the circumstances in which public bodies' activities will be 'economic activities' subject to UK and EU competition law. (12 December 2011)

LGA: Procurement Programme funding opportunity: the LGA has announced up to £100,000 funding in total for projects run by councils that take forward ‘Big Wins' in the areas of Social Care, Property, Highways, Waste or Corporate services. It is inviting applications from councils that highlight how the project will contribute to efficiency savings, be replicable, and demonstrate innovation. This prospectus provides a guide to bidding for this funding. The deadline for applications is 12 January 2012. (13 December 2011)

European Commission: New EU procurement thresholds: the new thresholds that apply for local authorities from 1 January 2012 are:

• Works: £4,348,350 (€5,000,000)
• Services or Supplies: £173,934 (€200,000).

The formal notice of the amendments is set out in Commission Regulation 1251/2011. (2 December 2011)

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

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Public Bodies

Public Bodies Act 2011: this Act has received Royal Assent. The Act is largely enabling legislation and takes forward the Government’s review of public bodies. It allows Ministers, by order, to abolish, merge or transfer the functions of the public bodies listed in the appropriate schedules.  It creates a legal framework that enables Government departments to implement the majority of public bodies reforms that require legislation and that are not already covered in other departmental bills; gives ministers the ability to abolish or merge bodies, modify a body’s constitutional or funding arrangements or transfer its functions elsewhere; and gives Secretaries of State the necessary powers to take forward changes to their bodies in secondary legislation when they are ready to do so. Most of the provisions come into force on 15 February 2012; however, s.30 (Regional Development Agencies) comes into force on a day to be appointed. (14 December 2011)

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

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Standards

Standards for England: Arrangements relating to the abolition of Standards for England: the Localism Act 2011 provides for Standards for England to be abolished from 31 March 2012, subject to formal confirmation through regulations. SfE have written to all monitoring officers outlining the timetable for their abolition and the handover arrangements. They state that their regulatory role will cease on 31 January 2012. Any existing referrals or open investigations which they have been unable to complete by 31 January will be returned to the local authority. SfE have already contacted the monitoring officers in question to agree handover arrangements. While SfE can continue to receive referrals of new cases up to 31 January, they state that it is unlikely that they will be able to take on any cases where the investigation is likely to go beyond the end of January. (6 December 2011)

Bevan Brittan: Implementation of the amended Standards regime: the Localism Act 2011 substantially replaces the current Member Conduct regime. It is anticipated that these provisions will come into force from either 1 April 2012 or, preferably, from each authority's Annual Meeting in May 2012. In order to implement these provisions, every authority will need to take a series of decisions and actions, including adopting "arrangements" setting out how they propose to deal with misconduct complaints under the new regime. To assist with that process, Peter Keith-Lucas has drafted a model Monitoring Officer's report to the current Standards Committee and Council, and prepared a draft set of "arrangements". You are welcome to make use of these documents, adapting them to your own authority's circumstances. If you would like to request a copy of these documents, please email Tara Walsh.

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 2012 include:

• 12 January (Bristol), 20 January (London) and 31 January (Birmingham): The Localism Act 2011
• 1 February (London): Code of Conduct update (organised by LGG)
• 8 February (London): Shared services
• 21 March (London): Income generation - charging into trading (organised by LGG)

For a list of all Bevan Brittan 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. If you wish to attend an LGG seminar that we are hosting at our offices, please book with LGG direct.

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