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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:
Access to Information
R (Catt) v The Association of Chief Police Officers of England, Wales and Northern Ireland [2013] EWCA Civ 192 (CA): C was an ardent and frequent protestor against a variety of forms of perceived injustice and had attended many public demonstrations, principally relating to protests by a group called Smash EDO. He had not been convicted of criminal conduct of any kind in connection with any demonstrations. He applied for an order requiring the police to remove all references to him from the National Extremist Database (NED) on the grounds that the retention of this data interfered with his right under Art.8(1) ECHR to respect for his private life. The retained information included his name, his age, his appearance and his history of attending political demonstrations, and many items were not related to his involvement with Smash EDO.The court held that the inclusion of personal information relating to C on the NED involved an interference with his right to respect for his private life which was not justified. The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involved a significant interference with the right to respect for private life. It could be justified by showing that it served the public interest in a sufficiently important way, but in this case the police had not shown that the value of the information was sufficient to justify its continued retention. (14 March 2013)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Children's Services
R (X) v Tower Hamlets LBC [2013] EWHC 480 (Admin) (Admin Ct): X was the aunt of three children who each had severe behavioural and learning difficulties. She was their carer and registered foster mother, and so received an allowance from the Council. X applied for judicial review of the Council's policy to pay less (save in exceptional circumstances) to family foster carers than it paid to unrelated foster carers. She contended that the Council's differential treatment of family foster carers and unrelated foster carers was unlawful, both as a matter of domestic law applying ordinary principles of public law and because it constituted unlawful discrimination under Art.14 ECHR, and that by failing to pay her an enhancement to the weekly allowance in accordance with its policy on "exceptional circumstances", the Council had unduly fettered its discretion in the application of that policy.The court held, granting her application, that the Council's policy was unlawful as a matter of domestic public law and the court did not determine whether the same result would be reached under Art.14 ECHR. The statutory scheme left it to local authorities to determine the terms on which they would provide fostering services, and they had a wide discretion in the matter. Nevertheless, there were two constraints on their freedom to determine their own policies: first, there was a clear intention by Parliament that children who could not continue to live with their parents should if possible be placed with family members in preference to unrelated carers, so a local authority policy which would frustrated this intention was likely to be unlawful; and secondly, the local authority had to comply with the statutory guidance. Here, the Council's policy on fees and allowances did not accord with the statutory guidance to the extent that it provided for different treatment of family and unrelated foster carers, and it had not shown sufficiently cogent reasons for departing from that statutory guidance. It ordered the Council to reconsider its policies and issue a new policy within three months.
Regarding the fettering discretion claim, X's appropriate remedy was by reference to the complaints procedure. She should raise any concerns at the LAC and/or annual foster carers' reviews. If the Council's own procedures did not satisfy her, she should invoke the statutory complaints procedure. (8 March 2013)
Residential Family Centres (Amendment) Regulations 2013 (SI 2013/499): these regulations, which come into force on 1 April 2013, amend SI 2002/3212 that prescribe the governance arrangements for residential family centres. These are centres where parents undergo a residential assessment of their ability to care effectively for their children. The amendments increase the focus on the core function of residential family centres, which is to provide high quality assessments of parenting capacity. They aim to address concerns that the assessments which residential family centres deliver may not be of the appropriate quality. (11 March 2013)
Ofsted: Inspection of residential family centres – Framework for inspection from April 2013: this revised framework aligns with DfE’s amended residential family centre regulations (see above) and new national minimum standards. Families’ experiences will be central to the new inspections. The framework is outcomes based; staff and managers will notice a greater emphasis on the quality of assessments as well as a focus on outcomes for families. (20 March 2013)
DfE: Working together to safeguard children – A guide to inter-agency working to safeguard and promote the welfare of children: this revised statutory guidance sets out how organisations and individuals should work together to safeguard and promote the welfare of children and how practitioners should conduct the assessment of children. It comes into effect from 15 April 2013. The guidance replaces the 2010 statutory guidance, the Framework for the Assessment of Children in Need and their Families (2000) and statutory guidance on making arrangements to safeguard and promote the welfare of children under s.11 of the Children Act 2004 (2007). (21 March 2013)
Ofsted: The framework for children's centre inspection from April 2013: sets out the statutory basis for Sure Start Children’s Centre inspections conducted from April 2013. It summarises the main features of children’s centre inspections and describes how the general principles and processes of inspection are applied to single centres and children’s centre groups with integrated services that share leadership and management. (21 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Communities
R (Daws Hill Neighbourhood Forum) v Wycombe DC; Secretary of State for Communities & Local Government and Taylor Wimpey UK Ltd (Interested Parties) [2013] EWHC 513 (Admin) (Admin Ct): DHNF applied for judicial review of the Council’s decision to designate Daws Hill Residents' Association (DHRA) pursuant to s.61G TCPA 1990 (as amended by the Localism Act 2011) as a Neighbourhood Forum in a Neighbourhood Area that was smaller than that which DHRA had applied for. The designated area excluded an RAF site and a sports centre on the grounds that any development of these two key strategic sites outside the existing 'immediate' neighbourhood would have implications that were larger than local impacts and larger 'communities of interest'. DHNF contended that the Council had failed to take key material considerations into account, namely, the stipulations set out in the policy documents, and/or acted irrationally, and had acted unlawfully by acting contrary to the clear purpose of the 2011 Act.The court held, dismissing the application, that s.61G(5) of the 1990 Act gave the local planning authority a broad discretion when determining an application for a Neighbourhood Area to consider whether the area proposed was appropriate. The exercise of discretion turned on the specific factual and policy matrix that existed in the individual case at the time the determination was made. The Council had properly had regard to the specific circumstances that existed at the time when the decision was made to designate a Neighbourhood Area which excluded the RAF site and the sports centre. (13 March 2013)
DCLG: Supporting communities in neighbourhood planning 2013 to 2015: the Government has awarded a contract to Locality in partnership with the Royal Town Planning Institute, Planning Aid England and partners to deliver a new £9.5m, 2-year programme to support communities to progress their neighbourhood development plans and neighbourhood development orders. The programme will be in two main parts:
- grant payments of up to £7,000 per neighbourhood area, to contribute to costs incurred by the group preparing a neighbourhood plan or order; and
- direct advice and support, tailored to meet the needs of supported neighbourhoods.
The programme will also offer opportunities for those interested in and involved in neighbourhood planning to share learning. This factsheet provides further information about the programme. (14 March 2013)
Yorkshire and Humber Rural Network: On the ground – The Localism Act in practice: this report analyses how the new rights for communities introduced last year, such as the Right to Challenge, Right to Bid and Right to Build, are working in practice. The research focused on six community organisations who were undertaking innovative projects within the spirit of localism and its associated ‘rights’ within their community in Yorkshire and Humber. The report finds there had been little use of the rights by communities so far: by January 2013 just three local authorities in Yorkshire had received requests under the ‘Right to Bid’ to register local assets, there had been no requests to take over services under the ‘Right to Challenge’ and one under the ‘Right to Build’. The report makes a number of recommendations, including that local authorities communicate the rights more effectively to their residents and work effectively alongside community groups wanting to develop new projects. (18 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Defamation
Thompson v James [2013] EWHC 515 (QB) (QBD): T
was a community councillor, vice chair of the community council and
chair of the Community Association. She sued the Council and J, its
chief executive, for a libel in J's letter which he
published to the councillors and to the readers of a blog
maintained by M. J counterclaimed for libel in respect of
five postings which T put on her blog.
T had a blog on which she posted comments that were highly
critical of the Council and made allegations of corruption, lying
and perjury, and misappropriation of public money. T had been
filming proceedings of the Council using her mobile phone and
posting the clips on YouTube. On one occasion, she was asked to
stop filming and leave the Council chambers and was arrested when
she refused, contending that she was not doing anything
wrong. M published an "open letter" to J on his blog about
this incident and T also posted a letter on M's blog, urging J
to reply. J then posted a reply on M's blog and circulated his
reply to the councillors. In his reply, J stated that T had been
"running a campaign of harassment, intimidation and defamation of
Council staff and members for some considerable time". T brought a
claim against J and the Council for libel. J counterclaimed,
alleging that five of T's postings had defamed him, accusing him of
corruption, misuse of council funds and lying. J's defence included
truth, honest comment and qualified privilege. T contended that the
fact that J had received an indemnity from the Council in respect
of his legal costs was a breach of Art.10 ECHR (freedom of
expression) and that J's counterclaim was not a genuine complaint,
but retaliation for T's action against him.
The court held, refusing T's application and awarding J
£25,000 damages, that T had conducted and continued to conduct
an unlawful and vindictive campaign of harassment, intimidation and
defamation against council staff and council members, she had
attempted to pervert the course of justice and had breached a
lawful prohibition on filming and defied a ruling from the Chair
requiring her to stop. J's defences of truth and justification
were proved; he also had a defence of qualified privilege. J's
counterclaim succeeded - it was not an abuse of process and the
argument based on the grant of an indemnity by the Council to J
was without foundation. The judge did not rule on
whether the Council's ban on filming was lawful or not. The judge
found that T's dominant motive was to injure J and he
awarded J £25,000 damages, including £5,000 aggravated damages. (15
March 2013)
If you wish to discuss any of the items noted in this section
please contact Wesley O'Brien.
Education
DfE: Statutory guidance on the participation of young people in education, employment or training: this statutory guidance identifies the key responsibilities of local authorities in relation to raising the participation age and promoting the participation of 16- and 17-year-olds. Local authorities must have regard to this guidance when exercising their functions relating to the participation of young people in education or training. The annexes contain departmental advice to help recipients understand what the DfE considers the statutory provisions to mean in particular circumstances. This guidance subsumes existing statutory guidance on local authorities’ duty to provide targeted support to vulnerable young people. (21 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Efficiency
DCLG: Translation into foreign languages: guidance on DCLG's approach to the use of translation and interpretation services for foreign languages by local authorities. This statement replaces the Department’s 2007 guidance for local authorities on translation of publications. The Communities Secretary states that stopping the automatic use of translation and interpretation services will promote cohesion and better community relations, and will help councils make sensible savings. In his opinion, while local authorities must comply with the Equalities Act 2010 duties, including the duty not to discriminate and the public sector equality duty, this is not a legal duty to translate documents and such a policy may be justified if local authorities can demonstrate that the integration and cost concerns pursue a legitimate aim and outweigh any disadvantage. (12 March 2013)National Audit Office: Integration across government: this case study on the Whole Place Community Budget pilots shows the significant benefits available if govenrment integrates its services more effectively. It finds that while it is early days for Whole Place Community Budgets, central government and the four local areas have worked together effectively to assess the case for local service reforms; however, the true scale of potential benefits will become clear only if projects are implemented and evaluated robustly. Foundations have been laid but continuing collaboration between local and central government and delivery partners is essential to maximise the potential of Whole Place Community Budgets. There is some room for improvement – for example, local areas recognised that in some cases they needed better information on the costs and effectiveness of current services, to mitigate the risk of over or under-estimating the benefits of change. (13 March 2013)
DCLG: Community Budgets inspire new nationwide network of public service revolutionaries: announces that DCLG is to set up a multi-agency network to drive forward the transformation of public services at a local level and to spread lessons learned from the hugely successful Community Budgets pilots. It also announces a £9m Transformation Challenge Award that will support councils who demonstrate their ability to remain at the cutting edge of service transformation, while delivering efficiency savings. The funding will help three to four different groups of councils successfully develop and implement their shared service or efficiency arrangements and the set-up costs associated with them. Councils should submit applications by 22 March 2014 and any awards will be paid out by May 2014. (22 March 2013)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Finance
DCLG: Localising support for council tax: the Collection Fund (Council Tax Reductions) (England) Directions 2013: at present the full cost of s.13A discretionary discounts are borne by the billing authority in accordance with the Collection Fund (Council Tax Reductions) (England) Directions 2003. The new s.13A LGFA 1992, inserted by the Local Government Finance Act 2012, now also includes local authority council tax reductions schemes. which means that unless the 2003 Directions are amended, the full cost of local council tax reductions schemes will also be borne solely by billing authorities. These Directions replace the 2003 Directions to ensure that only discretionary discounts under s.13A(1)(c) LGFA 1992 will continue to be borne by the billing authority. (18 March 2013)
HM Treasury: Budget 2013: the Chancellor has delivered his Budget for 2013, which is set out under the themes of economy and public finacnes, growth and fairness. Key points of interest for local authorities are:
- departmental resource funding will be cut by £1.1bn in 2013-14 and £1.2bn in 2014-15, the equivalent of a 1% reduction for most government departments. In the short-term, these funds will be used to support housing. Health, schools and Official Development Assistance will be protected. Local government and police will be exempt from a further cut in 2013-14.
- Public sector pay awards in 2015-16 will be limited to an average of up to 1%.
- The Government will implement the £72,000 cap on reasonable social care costs, drawing on the Dilnot Commission’s recommendations, and extend the means test to give more people access to financial support for their residential care costs from April 2016.
- Increase in capital spending plans by £3bn p.a. from 2015-16, to lock in recent increases in capital spending over the Spending Review 2010 period, funded through reductions in current spending. The Government will also set out long-term plans to 2020-21 for the most economically valuable areas of capital expenditure in the 2015-16 Spending Round.
- To support the local adoption of Community Budgets, the Government is establishing a new multi-agency network and will announce plans to extend the benefits of this approach across the country at the 2015-16 Spending Round.
- Major reforms, including over £5.4bn of financial support, to tackle long-term problems in the housing market and to support those who want to get on or move up the housing ladder, including
-
- a major new housing scheme, Help to Buy,
with two key elements: First Buy
extended to all those who aspire to own a new build home, from
April 2013, with an equity loan worth up to 20% of the value of a
new build home; and
a mortgage guarantee for lenders who offer mortgages to people with a deposit of between 5% and 20% on homes with a value of up to £600,000. - the qualifying period for Right to Buy is reduced from five years to three years and the maximum discount cash cap in London raised to £100,000; and
- the existing affordable homes guarantee programme is doubled, with up to £225m more to support a further 15,000 affordable homes in England by 2015.
- a major new housing scheme, Help to Buy,
with two key elements: First Buy
extended to all those who aspire to own a new build home, from
April 2013, with an equity loan worth up to 20% of the value of a
new build home; and
- Government procurement from small firms to rise fivefold.
- A new tax relief to encourage private investment in social enterprise. There will be a consultation on the details of the relief by summer 2013 and the relief will be introduced in Finance Bill 2014.
Further details are in the LGA's On the day briefing. (20 March 2013)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Fire and Rescue Authorities
DCLG: Future control room services scheme – Summary national picture of fire and rescue authority improvement plans (March 2013 update): provides an update on progress with the plans for fire and rescue authorities’ (FRAs') locally determined projects to improve their control room arrangements. It provides a revised high-level national summary of the improvements being made by each project, delivery timescales and projected savings. It also identifies which FRAs have entered into new partnership agreements to deliver their future control rooms projects and which are now forecasting different resilience benefits from those set out in the original project bids, while explaining how they will continue to provide increased resilience and specific improvements at a local level. (21 March 2013)If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Fraud
Audit Commission: £1 billion of fraud, found!: reports that the National Fraud Initiative has now helped identify over £1bn potentially lost to fraud, overpayment or error, across the UK. The fraud detection figure include, in England, the prevention and detection of £103m pension overpayments, £79m council tax single person discounts incorrectly awarded and £42m housing benefit overpayments. Full details are in the National Fraud Initiative 2012 report. (18 March 2013)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Health
LGA/DH: Local Healthwatch Regulations explained – Lay and volunteer involvement and restrictions on activities of a political nature: this guide aims to help local Healthwatch audiences understand the legal requirements in Part 6 of the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012 (SI 2012/3094) relating to lay person and volunteer involvement in local Healthwatch, and restrictions on activities of a political nature. (12 March 2013)Regional Voices: Working with the voluntary and community sector – A guide for health and wellbeing boards: this guide describes the value of and mechanisms for HWBs to work closely with the voluntary sector and discusses different ways of working with the voluntary sector to access its expertise and networks. (7 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Highways
DfT: £25 million boost to tackle highway bottlenecks: announces the first allocation of the £170m Local Pinch Point Fund programme that enables early delivery of schemes to remove bottlenecks. Ten schemes will share £25m funding to tackle barriers on the local highway network that may be restricting the movement of goods and people. (22 March 2013)
If you wish to discuss any of the items noted in this section please contact Martin Howe.
Housing
DCLG: The General Housing Consents 2013 – Section 32 of the Housing Act 1985: this new version of the General Housing Consents guidance sets out those situations where the specific consent of the Secretary of State is not required before a local authority disposes of council housing land and associated assets. This version removes some perceived ambiguities in the previous version while extending local authority freedom regarding the granting of leases and the disposal of reversionary interests. (13 March 2013)
If you wish to discuss any of the items noted in this section please contact David Isaacson.
Members
DCLG: Councillors on the frontline – Government response: in January the Communities and Local Government Select Committee published the report of its inquiry into the role that councillors play in their communities. This report sets out the Committee’s specific recommendations in the report and the Government’s response to each. (14 March 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Officers
Welsh Government: Consultation – Local Authorities (Standing Orders) (Wales) Regulations 2006 (Amendment) Regulations 2013: seeks views on proposals to amend the Welsh Standing Orders Regulations 2006 as a result of changes introduced by the Local Government (Wales) Measure 2011. Section 8 of the 2011 Measure imposes a duty on local authorities to designate one of its officers as “Head of Democratic Services” who must not be the Head of Paid Service, Monitoring Officer or Chief Finance Officer. The proposed changes would afford the Head of Democratic Services the same protection as other chief officers in relation to disciplinary proceedings. It is also proposed to add the Head of Democratic Services and the Monitoring Officer to the list of officers whose appointment and dismissal are dealt with by committee, rather than by the Head of Paid Service, and to require any chief officer vacancies to be publicly advertised. The Welsh Government is also asking for views on whether the role of the independent person should be retained in the disciplinary process applying to these officer posts, in light of DCLG's proposed changes to the English regulations. The consultation closes on 31 May 2013. (8 March 2013)If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Regulatory Services
DBIS: Directive 2011/7/EU on combating late payment in commercial transactions – A user's guide to the recast Late Payment Directive: this guide provides general advice for businesses and public authorities on the amended late payment law that comes into force on 16 March 2013, implementing Directive 2011/7. The amended legislation will make pursuing payment a simpler process across the EU, reducing the culture of paying late and making paying on time the norm. Under the new rules, debtors will be forced to pay interest and reimburse the reasonable recovery costs of the creditor, if they do not pay for goods and services on time (60 days for business and 30 days for public authorities). (8 March 2013)
Law Commission: Unfair terms in consumer contracts: in May 2012, BIS asked the Law Commission and Scottish Law Commission to review and update their recommendations in their 2005 Report on Unfair Terms in Contracts in so far as they affect contracts made between businesses and consumers, and examine in particular Art.4(2) of the Unfair Terms Directive on terms exempt from review in the light of recent case law. This is the Law Commission's advice to BIS, which concludes their project on Unfair Terms in Consumer Contracts. It recommends reforms to provide better protection for consumers from unfair charges in small print. (19 March 2013)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Scrutiny
Isles of Scilly (Functions) (Review and Scrutiny) Order 2013 (SI 2013/643): this Order, which comes into force on 1 April 2013, provides for for the Council of the Isles of Scilly to exercise the local authority power to appoint one or more committees as its overview and scrutiny committee or committees, so as to reflect changes made by Part 5 of the Health and Social Care Act 2012 to the system of health scrutiny. (18 March 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Standards
DCLG: Openness and transparency on personal interests – Guidance for councillors: this guide gives basic practical information to councillors about how to be open and transparent about their personal interests under the new standards arrangements introduced by the Localism Act 2011. (21 March 2013)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Transport
DfT: Door to door – A strategy for improving sustainable transport integration: this strategy describes the Government’s vision for integrated sustainable journeys. It brings together the many areas of work within the DfT that contribute to delivering more convenient and efficient door-to-door journeys by sustainable transport, focusing on four core areas which need to be addressed so that people can be confident in choosing greener modes of transport. It also sets out how the Government is encouraging behaviour change by helping reduce or remove barriers to the use of sustainable transport, and working closely with operators, local authorities and industry experts to deliver a better-connected transport system. It includes examples of innovative schemes which are already making it easier for passengers to travel by more sustainable modes. (14 March 2013)
DfT: Building better bus services – Multi-operator ticketing: Guidance for local transport authorities on planning and implementing multi-operator ticketing services: this guidance for local transport authorities is part of the DfT’s response to the Competition Commission report. It aims to help LTAs introduce effective multi-operator ticketing schemes in their area and to maximise the benefits of existing schemes. It also shows how, by combining multi-operator ticketing with a move to smart ticketing, the passenger experience can be improved still further. (14March 2013)
If you wish to discuss any of the items noted in this section please contact Martin Fleetwood.
Bevan Brittan's Local Government Training ProgrammeBevan 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:
- 16 April 2013 (Birmingham): Mock employment tribunal workshop
- 17 April 2013 (London): Mock employment tribunal workshop
- 23 April 2013 (Bristol): Mock employment tribunal workshop
For more details on our training programme or information on tailored training to meet your authority's requirements, please contact our Events team.
