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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
R (Redcar and Cleveland Independent Providers Association)
v Redcar and Cleveland BC [2013] EWHC 4 (Admin) (Admin Ct):
RCIPA was an unincorporated association that represented owners and
managers of care homes in the Council's area. It applied for
judicial review of the Council's decisions to set the rates which
it would pay care homes for wholly or partly funded residents
for 2012/13 that were below that which they paid the previous year,
and to remove from its provider list all care home operators who
did not agree to accept the Council's new contractual framework by
23 April 2012. RCIPA contended that the Council had
failed, or failed properly, to assess and have due regard to the
actual costs of providing care and other local factors under
statutory guidance and had failed to comply with its duty to
consult; and that the Council could not maintain a closed list
of care homes in which it would place residents. The
Council submitted that the issues in the case were not
amenable to judicial review because they concerned the terms
upon which a party was willing to enter into private law
contractual arrangements and because the Council owed
no statutory duties to care home providers and so they had no
standing.
The court held, allowing the application, that in order to attract
public law remedies, the applicant had to establish a relevant and
sufficient nexus between the aspect of the contractual situation of
which complaint is made and an alleged unlawful exercise of
relevant public law powers. RCIPA did not have any private law
remedy as the Council was merely setting out the terms upon
which it was prepared to contract with the providers in future and
there was no existing contract that the Council could be alleged to
be in breach of. The complaint in this case was about the price,
which was set pursuant to public law powers and guidance.
There was therefore a nexus between public law powers and
private rights. The Council had had regard to both the 2011/12 fee
rates and the benchmarked figures not with a view to ascertaining
and having due regard to the actual costs of care but more with a
view to calculating what reduction might be possible to negotiate
from or impose upon providers in an attempt to avoid judicial
review proceedings. The Council had therefore failed or failed
properly to assess and have due regard to the actual costs of care
in particular in relation to local factors. The Council had
complied with its duty to consult.
In theory the Council could not exclude RCIPA from a list of care
home providers with whom it would contract but it could
reasonably only agree to contract on its standard contractual terms
including the usual fee rates. The Choice of Accommodation
Directions required the Council to enter into arrangements
with any care home chosen by a prospective resident, providing the
relevant conditions were met at the time, although the Council
could insist that the provider entered into contractual
arrangements on its standard terms and the provider could not
expect to recover more than the usual fee unless there
were exceptional arrangements. So RCIPA's homes might be on a
list that the Council was prepared to contract with but contracts
would only be actually entered into if RCIPA was prepared to sign
the framework agreement. (17 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Audit
HC Draft Local Audit Bill ad hoc Committee: Pre-legislative scrutiny: this report critically examines the Government's draft Bill that implements the Government's plans to abolish the Audit Commission and outlines a new local audit regime, shaped by four design principles: localism and decentralisation; transparency; achieving lower audit fees; and securing high standards of auditing. The Committee considered whether the draft Bill would meet the Government's objective of creating a more efficient and transparent local audit system with appropriate safeguards for protecting the integrity of the audit system, and ensuring accountability to local people. The Committee has a number of serious concerns regarding the practicability, workability and completeness of the proposals outlined in the draft Bill. In particular, it finds that the draft Bill fails to provide adequate safeguards to guarantee the independence of audit, it falls short in addressing many of the technical aspects of audit and is silent on how high quality statutory local audit will be obtained and reviewed in the new regime. The draft Bill contains a number of risks and gaps which require urgent attention. If the new regime is to be successful, DCLG and other Departments will have to be proactively engaged in its management. The Committee is concerned that the draft Bill provides insufficient safeguards to whistleblowers and it strongly recommends that, in addition to the appointed auditor, the Comptroller & Auditor General of the National Audit Office should also be named in the Bill as a prescribed person for whistleblowers to contact. The report contains a number of conclusions and recommendations to help ensure that the Bill better safeguards auditor independence and bridges the gaps within the proposed regime. (17 January 2013)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Children's Services
DfE: Local authority responsibilities towards children looked after following remand: s.104 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 gives local authorities responsibilities towards all children who have been remanded into either local authority or youth detention accommodation, as they will all now be looked after. children. This paper seeks views on proposals to amend the Care Planning, Placement and Case Review (England) Regulations 2010 so as to take into account the particular circumstances of children who have been so remanded. The consultation closes on 6 February 2013. (9 January 2013)
DfE: Advice on placement of looked after children across Member States of the European Union for local authority children’s services: this non-statutory guidance helps local authorities understand their responsibilities under Art.56 of Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as Brussels IIA). It describes the process that local authorities should follow when dealing with requests under Art.56 of the Brussels IIA Regulation from authorities in other EU member states, to consent to placements of children in residential or foster care in their area, where such placements are not ones where the child requires detention or assessment and/or treatment of a mental disorder ("compulsory mental health placements"). (11 January 2013)
DfE: Consultation on changes to the delegation and inspection of functions for looked after children and care leavers: seeks views on proposals to commence Part 1 of the of the Children and Young Persons Act 2008 to allow all local authorities in England to delegate certain care functions. This would continue the pilot arrangements currently operating in certain local authorities in England (due to expire in November 2013), whereby they can delegate certain care functions in relation to both children who are looked after and care leavers. It would also extend these arrangement to other authorities. It also proposes to remove the requirement in CYPA 2008 for providers of social work services to register with and be inspected separately by Ofsted. Instead, Ofsted proposes to include consideration of the experiences of children receiving services under delegated arrangements as part of its new arrangements for inspection of local authoirty services for looked after children and care leavers from April 2013. The consultation closes on 28 February 2013. (15 January 2013)
DCLG: Working with troubled families – A guide to evidence and good practice: this tool helps local authorities and their partnerson how best to work with troubled families. The report looks at academic evidence and local evaluations of practice, and gives examples of what practitioners and families have found most effective. it identifies five key features that make up effective family intervention. (18 January 2013)
DCLG: The cost of troubled families: this report from DCLG's Troubled Families team considers the financial case for local authorities and other local agencies to invest in effective services for troubled families, in order to make savings. It is estimated that nationally, the 120,000 troubled families cost the taxpayer £9bn per year, £8bn of which is spent purely reacting to their problems and the problems they cause, such as truancy, youth crime and anti-social behaviour. Under the Troubled Familes Programme, local authorities will be paid up to £4,000 per family via a payment-by-results scheme if they can tackle these problems and bring down the cost to the public purse. The report looks at the pre-intervention cost of troubled families, the case for investment in family intervention services and the links between areas’ service improvement plans and the financial case for change. (23 January 2013)
DfE: An action plan for adoption – Tackling
delay: sets out proposals for tackling the current delay in the
adoption system and outlines plans to accelerate the whole adoption
process so that more children benefit from adoption. It includes
proposals to measure improvements in tackling delay across the
system, through a new performance scorecard. The DfE states
that this is the "last chance for local authorities to
demonstrate that they can take convincing action to put a plan in
place for the long term and recruit the adopters children need now
nationally. If this fails to happen we will use the new power that
we will legislate for at the earliest opportunity, to require local
authorities to outsource their adoption recruitment and approval
services". (24 January 2013)
See also DfE: Further action on adoption – Finding more
loving homes: sets out proposals for the next steps in
tackling delay so that more children can benefit more quickly from
being adopted into a loving home. It describes a number of
changes to give approved adopters a more active role in the process
of finding a child, and a package of improvements to the support
available to adoptive families. (24 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Community Engagement
Arts Council: Community libraries – Learning from experience: guiding principles for local authorities: this report, produced in collaboration with the LGA, presents the findings from research into communities' involvement in library service delivery and management. It follows research from July 2012 that showed that there has been a rapid growth in communities getting involved in delivering library services over the last year, with over 1 in 10 libraries having some kind of community involvement. (22 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Contracting Out
Draft Local Authorities (Contracting Out of Tax Billing, Collection and Enforcement Functions) (Amendment) (England) Order 2013: this draft Order, once in force, amends SI 1996/1880 to add additional functions relating to the administration and enforcement of council tax which may be contracted out by a billing authority in England, namely the functions of:
- giving notification of a decision about an application for a reduction of council tax;
- payment of a reduction; and
- ascertaining liability to a premium and the function of collection of penalties under the Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (England) Regulations 2013.
(16 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Council Tax
Draft Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (England) Regulations 2013: these draft regulations, once in force, relate to council tax reduction schemes, which are local schemes for providing support for council tax that replace the current system of council tax benefit from 1 April 2013. They enable billing authorities to authorise individuals to investigate offences committed in relation to council tax reduction schemes. They also create offences and enable penalties to be imposed in connection with the schemes. (16 January 2013)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Development Control
DCLG: Changing land use from commercial to residential consultation: summary of responses and government response: announces plans to introduce changes to permitted development rights which will be in place for three years, allowing change of use from B1(a) office to C3 residential without the need for planning permission. Local authorities can seek an exemption to the permitted development rights to convert offices into homes if there are justified economic grounds but the Secretary of State will only grant an exemption in exceptional circumstances. Agricultural buildings up to a specific size will be able to convert to other business uses but not to residential dwellings; there will be a prior approval process for conversions beyond that size to guard against unacceptable impacts, such as flooding, transport and noise. Town centre buildings will be able to can convert temporarily for two years to other uses, including shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1). The deadline for local authorities to apply for an exemption is 22 February 2013.See also DCLG's letter to Chief Planning Officers that alerts them to the forthcoming permitted development rights for change of use from B1(a) office to C3 residential purposes, which will come into force in Spring 2013. (24 January 2013)
Bevan Brittan LLP has issued an Alert that sets out details of the changes, the possible exemptions, and the actions that may need to be taken by local authorities and landowners/funders who may benefit from these changes: New permitted development rights on converting office space.
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Education
DCLG: Planning changes to help open free schools' gates faster: announces changes to permitted development rights from June 2013 that will enable free schools to open in almost any building for a year without needing planning permission. The changes will also give free schools extra time to win the permanent planning permission required to remain in their buildings after that first year. (25 January 2013)
If you wish to discuss any of the items noted in this section please contact Carl Ludwig.
Elections
Electoral Commission: Summary of changes to our guidance for local elections in England and Wales in 2013: details amendments to Returning Officer guidance and Candidates and Agents guidance that are relevant to planning for and administering mayoral elections in England. (14 January 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Enforcement
Home Office: Powers of entry – Draft Code of Practice: seeks views on a new statutory CoP issued under s.48 of the Protection of Freedoms Act 2012 that provides a framework for all powers where none currently exists. The draft CoP set out the considerations that should apply to the exercise of powers of entry that are not subject to other Codes before, during and after their use. It applies to entry to premises during routine inspections as well as powers of entry exercised for enforcement purposes. This Code also applies where legislation is silent on particular matters or where relevant legislation provides fewer safeguards than those provided here. The consultation closes on 5 March 2013. (22 January 2013)
MoJ: Transforming bailiff action – How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections: sets out the Government's response to to the consultation on Transforming Bailiff Action. It announces proposals to enact parts of the Tribunals, Courts and Enforcement Act 2007 and create new laws through the Crime and Courts Bill that will ban bailiffs from entering homes at night or when only children are present and prevent them from using force against people who owe money. There will also be new set costs so bailiffs will no longer be able to fix their own fees. (25 January 2013)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Equality and Discrimination
R (Coleman) v Barnet LBC; Trustees and Governors of Etz Chaim Primary School (Interested Party) [2012] EWHC 3725 (Admin) (Admin Ct): C applied for judicial review of B LBC’s decision to grant planning permission for the development of a school on land that was once a garden centre. C was disabled; he and others objected to the proposal because they wanted the site to be used, as it had been when the garden centre was there, to provide a recreational and educational facility for the local community, which was of particular benefit to people with disabilities and the elderly. C contended that, when determining the planning application, B LBC had failed to discharge its public sector equality duty (PSED) under s.149 of the Equality Act 2010.The court held, refusing the application, that the LBC had done all that was required of it to discharge its PSED. B LBC had consulted widely enough to gather the whole spectrum of opposition to the development, including objections relating to its effects on people with disabilities and the elderly, and the responses were meticulously analysed according to age and disability. Objections were accurately reported by the officers, and at length. The officers conveyed to members the burden of the objections relating to the PSED. The officers' report displayed a coherent approach to the requirements of the due regard duty. When the committee resolved to grant planning permission the officers, and in their turn the members themselves, were conscious of the PSED under s.149, conscious of the particular effects the development was likely to have on those with protected characteristics, and conscious that due weight should be given to those effects in the decision that had to be made. The PSED was properly discharged. Applying the six principles stated in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), the LBC's performance of the duty was sound and complete, and it did what public authorities were enjoined to do by the Court of Appeal in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141. It had had due regard to the need to achieve the statutory goals, not as an abstract exercise but with realism and common sense. It had done what was appropriate in all the circumstances. (21 December 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Health and Social Care
LGA: LINk legacy – How do we make sure the organisational memory of LINks is carried forward?: "LINk legacy" describes the processes, policies, activities, operational areas and specific knowledge and skills used to deliver the LINk functions. This document provides a checklist of areas that could be transferred to the new Local Healthwatch organisation, to help it to build on the positive work that has been achieved and increase the opportunities for a seamless transition between the two structures. It does not cover transfer of assets, staff, and finance as it states that these areas should be covered separately within existing contract arrangements and the process the local authority uses to establish Local Healthwatch. (18 January 2013)
LGA: Knowledge and skills and competencies for an effective Local Healthwatch: the aim of Local Healthwatch organisations is to help drive up the quality of local services, resulting in improved experience and outcomes for people who use them. This guide sets out an initial view of the key knowledge, skills and competencies that are needed to lead and manage the organisation and engage the community. It also identifies specialist areas of knowledge, skills and competencies required, which will need more detailed work drawing on the legacy of LINks and local arrangements. (18 January 2013)
King's Fund: The future of health and social care timeline: this timeline picks out some of the key trends that will affect how health and social care is delivered over the next 20 years. There is also an overview of future trends that gives a summary of the most significant trends and drivers that the King's Fund believes will affect health and social care services over the next 20 years. (21 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Internal Drainage Boards
DEFRA: Consultation on a proposal to use a Legislative Reform Order to make changes to the Land Drainage Act 1991: seeks views on proposals to amend the order-making process for Internal Drainage Board (IDB) structural reforms under s.3 of, and Sch.3, to the 1991 Act, so as to streamline the advertising process in order to remove unnecessary delays and reduce the burden on IDBs. It also proposes to make the arrangements for advertising notices in newspapers more flexible so IDBs and the Environment Agency can choose appropriate cost effective mechanisms to reach their target audience.The consultation closes on 18 March 2013. (21 January 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Police
LGA: Police and Crime Panels – Handling complaints about the PCC and their deputy: guidance on how the Panels can carry out their functions to deal with complaints about the Police and Crime Commissioner or their deputy, and delegate some of those functions. (11 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Procurement
LGA: Local Healthwatch Contingency planning – ‘Plan B': this document lists possible options available to authorities, either individually or on a shared basis, to meet their statutory duty to have a Local Healthwatch contract in place by April 2013 should their procurement processes for Local Healthwatch not produce bids of sufficient quality to move to the awarding of a contract, or identify key risks in the awarding of a contract that makes it inadvisable. It identifies the pros and cons of each alternative and some high level steps towards putting each option into practice. It is likely that authorities will have between a maximum of ten and possibly a minimum of four weeks to implement a ‘Plan B’ once their procurement process has concluded. This briefing advises that, although authorities cannot pre-judge the outcome of the procurement process they have in progress, by implementing a ‘Plan B’ before the process concludes, risk mitigation planning can begin, so that implementation is achievable within the required timescale. (17 January 2013)
If you wish to discuss any of the items noted in this section please contact Elizabeth Cooper.
Public Health
LGA: Public health and alcohol licensing in England: public health will become the responsibility of local government when it transfers from the NHS to local authorities in April 2013. This briefing for councillors and officers explains the challenges facing councils and the opportunities they have to tackle alcohol-related harm through the licensing process. It aims to place health bodies' new role in alcohol licensing in a strategic context, and to provide guidance to those who will be delivering the responsible authority role. (14 January 2013)
LGA: Tackling drugs and alcohol – local government's new public health role: this briefing for councillors and officers explains the challenges facing councils and the opportunities they have to tackle drug and alcohol problems and reduce health inequalities in local communities. (22 January 2013)
NICE: NICE support for local government on walking and cycling and behaviour change: NICE has published two new public health briefings. The first covers how different parts of local government can contribute to encouraging and enabling walking and cycling in local communities, and the second gives guidance on the general principles that should be used when commissioning initiatives to change health behaviours. The briefings are available on the Public health briefings for local government web page. (23 January 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Standards
Committee on Standards in Public Life: Standards matter – A review of best practice in promoting good behaviour in public life: this report reviews progress in promoting ethical standards in public life since Nolan’s original 1995 report setting out the Seven Principles of public life. The report argues that while much of the basic infrastructure to improve standards is in place, there is a great deal more to do before high ethical standards are fully internalised in the cultures of all our public institutions. The Commmittee states that it is keeping a "watching brief" on the local government standards regime under the Localism Act, as the new, slimmed down arrangements have yet to prove themselves sufficient for their purpose. It has considerable doubt that they will succeed in doing so and intend to monitor the situation closely. (17 January 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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 include:
- 20 February 2013 (Bristol): The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector
- 26 February 2013 (Birmingham): The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector
- 28 February 2013 (Birmingham): Funding pressures on district councils: Strategies to maximise funding for service delivery
- 1 March 2013 (London): The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector
For more details on our training programme or information on tailored training to meet your authority's requirements, please contact our Events team.
