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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
DH: Transforming care: A national response to Winterbourne View Hospital – Department of Health review: Final report: sets out the Government's final response to the events at Winterbourne View hospital, with a programme of action to transform services for people with learning disabilities or autism and mental health conditions or behaviours described as challenging. The proposals include:
- by Spring 2013, DH will set out proposals to strengthen accountability of boards of directors and senior managers for the safety and quality of care which their organisations provide;
- by June 2013, all current placements will be reviewed, everyone in hospital inappropriately will move to community-based support as quickly as possible and no later than June 2014;
- by April 2014, each area will have a joint plan to ensure high quality care and support services for all people with learning disabilities or autism and mental health conditions or behaviour described as challenging, in line with best practice;
- the Care Quality Commission will strengthen inspections and regulation of hospitals and care homes for this group of people, including unannounced inspections involving people who use services and their families; and
- a new NHS and local government-led joint improvement team will be created to lead and support this transformation.
This programme is backed by a Concordat signed by more than 50 partners, setting out what changes they will deliver and by when. The Government will publish a progress report on these actions by December 2013. (28 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Children's Services
DfE: The Government's response to Lord Carlile's report on the Edlington case: Lord Carlile was asked in March 2012 to conduct an independent review of the case of the J children in Edlington, who had committed a very serious assault on two young victims in April 2009. The Doncaster Local Safeguarding Children Board commissioned a Serious Case Review on the case and published the executive summary in January 2010, in line with the statutory guidance. Lord Carlile’s review, which was pubilshed in November 2012, looked not only at the issues raised by the case and the action taken in response locally, but also considered the need for improvements more widely in the child protection system. This document includes the Government's response to each of the review's recommendations and sets out direct action to improve children’s services in Doncaster. Professor Julian Le Grand has been asked to undertake an investigation into the service structures and governance arrangements at the Council that could best support the required improvements and whether an independent organisation, delivering children’s social care services outside of Council control, would provide the greatest likelihood of securing improvement. While this review is underway, the Council will be required to appoint a delivery partner with the capacity and capability required to address the inadequacies in child protection arrangements found by both Lord Carlile and Ofsted. (26 March 2013)
DfE: Consultation on proposed changes to the role of the local authority in early education and childcare: seeks views on proposed reforms to the role of local authorities in early education and childcare, including draft statutory guidance which will implement changes to the local authority role. The intention is that local authorities focus on ensuring that all two, three and four-year olds, particularly the most disadvantaged, take up their entitlement to funded high-quality early education. The consultation closes on 6 May 2013. (25 March 2013)
Ofsted: What about the children? Joint working between adult and children's services when parents or carers have mental ill health and/or drug and alcohol problems: this thematic inspection by Ofsted and the CQC explores how effectively Adult and Children’s Services worked together to ensure that children affected by their parents’ or carers’ difficulties were supported and safe. The report draws on evidence from cases in nine local authorities and partner agencies and from the views of parents, carers, children, practitioners and managers. It calls on the Government to make it a mandatory requirement for mental health services to collect data on children whose parents or carers have mental health difficulties and report on such data nationally. (25 March 2013)
NICE: Health and wellbeing of looked after children
and young people (QS31): this quality standard defines best
practice for the health and wellbeing of looked-after children and
young people from birth to 18 years and care leavers
(including young people planning to leave care or under leaving
care provisions). It applies to all settings and services working
with and caring for looked-after children and young people, and
care leavers, including where they live.
There is also NICE support for commissioners of services for
looked-after children and young
people that reviews the potential cost impact
and implications of using this quality standard. (2 April
2013)
Children, Schools and Families Act 2010 (Commencement No. 3) Order 2013 (SI 2013/668 (C.27)): this Order brings s.8 of the 2010 Act into force on 15 April 2013. Section 8 inserts s.14B into the Children Act 2004 that gives Local Safeguarding Children Boards in England the power to request any person or body to supply such information as is specified in the request either to the Local Safeguarding Children Board or to another person or body. (20 March 2013)
LGA: Adopter recruitment, assessment and approval –
LGA, SOLACE and ADCS commitments to a sector-defined approach to
increasing the number of approved adopters: this joint
submission from the LGA, SOLACE and the ADCS sets out a sector-led
plan to significantly increase the number of adopters
recruited and speed up the process of finding new homes for
children in care. The collective ambition of the three
organisations is that by 31 March 2014 the national adopter
shortfall, estimated by DfE at 31 March 2012 to be between
2,000 - 3,000, will be reduced by more than 50 per cent. This
represents a challenge, but one that they believe the sector
can rise to by doing things a bit differently. The LGA will
also continue to lobby against provisions in the Children and
Families Bill which would remove councils from the
process of adopter recruitment and assessment. (4 April
2013)
DfE has published the results of research on Understanding attitudes, motivations and barriers
to adoption and fostering that aimed to gain
a greater understanding of the capacity within the population
for adoption and fostering and greater knowledge of the attitudes,
motivations and barriers to adoption and fostering among specific
segments of the population.
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Commons Registration
R (Newhaven Port and Properties Ltd) v East Sussex CC
[2013] EWCA Civ 276 (CA): the Council appealed against the High
Court’s decision that a beach could not be registered as a town or
village green under s.15 of the Commons Act 2006. The judge
had found that a tidal beach was capable of registration, but as
the beach in this case was part of the operational land of the
port and was subject to NPP's byelaw making powers and the existing
byelaws, registration was incompatible with NPP's statutory powers
and duties.
The court held, allowing the appeal, that the judge was right to
conclude that a tidal beach was not excluded from registration.
Neither the absence of any general common law right in respect of
use of the foreshore for recreational purposes nor the history of
tolerance of such use precluded a finding that recreational use of
a particular beach was use as of right. The harbour authority’s
byelaws did not confer any right on the public to access the
harbour and engage in various sports and activities but went no
further than to give an implied revocable permission by the harbour
authority, as landowner, for such access and activities. However,
the judge’s reasoning regarding NPP’s capacity to grant rights was
seriously flawed: the grant of rights had no place in this context.
Unlike the law relating to public highways and private rights of
way, registration as a town or village green did not depend on
actual or presumed grant or on actual or implied dedication but on
use of a specified character over a specified period. Accordingly,
the capacity of the landowner to grant rights over the land or to
make a dedication did not enter into the picture. Since absence of
permission was an essential condition of the use on which
registration as a town or village green was based, the fact that
the landowner lacked capacity or power to give permission could not
operate to defeat such registration. (27 March 2013)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Defamation
Blogs and online publications – Local authority officer succeeds in libel claim: the previous edition of Bevan Brittan's Authority Update noted the case of Thompson v James and Carmarthenshire CC [2013] EWHC 515 (QB). In this article, we look in more detail at this High Court decision that considered an authority’s robust response to public criticism and accusations of corruption, and the circumstances in which a local authority employee can sue and succeed in a defamation claim. The case is a useful reminder that officers of a local authority can sue for libel in connection with statements made about them which relate to the exercise or discharge of their duties as an employee of the authority.
If you wish to discuss any of the items noted in this section please contact Wesley O'Brien.
Education
DfE: Local authority schemes for financing schools: local authorities are required to publish schemes for financing schools that set out the financial relationship between them and the schools they maintain. Any amendments to schemes must be consulted on with all schools and be approved by the schools forum. This updated statutory guidance on funding schemes for local authorities lists the provisions which an LA's scheme must, should or may include. There is also a summary of scheme changes. (26 March 2013)
DBIS: Rigour and responsiveness in skills: this policy paper sets out an action plan to update skills priorities for England to make the system more rigorous and responsive to need. It covers four areas: Raising standards; Reforming apprenticeships; Creating traineeships; and Meaningful qualifications. The proposals include a new FE Commissioner who will intervene as soon as a college falls in to the inadequate category or fails financially and who will report directly to Ministers. Interventions will aim to deliver significant change to learners and to restore quality to well above the intervention performance thresholds, usually within 12 months, and include:
- a new ‘Administered College’ status, in which colleges will lose freedoms to take actions such as staff changes, expenditure or transfer of assets;
- the replacement of some or all of the governing body; and / or
- college dissolution.
For colleges who require improvement, Ofsted will provide
enhanced support and work with them on a tailored development plan.
DBID will announce plans for appointing the FE Commissioner
shortly.
DBIS has also announced the 47 colleges that will share £77m
capital funding, matched with £137m investment from colleges.
The funding will be allocated through the Skills Funding
Agency and has been targeted at those colleges in the
greatest need of help and those that can support growth in the
economy. (3 April 2013)
Welsh Government: Minister announces major capital boost for Welsh schools: announces the allocation of additional £35.7m capital funding to help alleviate pressure on both local authorities’ and Welsh Government’s capital budgets in future years. The funding will be split into £15.5m for transitional projects, which are already underway, and nearly £20.2m for a number of 21st Century School Projects, two years earlier than the published programme start date. (2 April 2013)
Careers Guidance in Schools Regulations 2013 (SI 2013/709): these regulations, which come into force on 1 September 2013, extend the relevant phase during which a pupil must be provided with independent careers guidance under s.42A of the Education Act 1997 so that it applies to pupils from school year 8 to 13. For pupils over compulsory school age, there si no longer a requirement for careers guidance to include information on options concerning 16 to 18 education or training. (28 March 2013)
Education (Pupil Registration) (England) (Amendment) Regulations 2013 (SI 2013/756): these regulations, which come into force on 1 September 2013, amend SI 2006/1751 to clarify that leave of absence duting term time shall not be granted by maintained schools unless there are “exceptional circumstances”, and that a school may delete the name of a pupil from their admission register when he is no longer of compulsory school age and he has failed to meet the academic entry requirements for the school’s sixth form. (4 April 2013)
Education (Penalty Notices) (England) (Amendment) Regulations 2013 SI 2013/757): these regulations, which come into force on 1 September 2013, amend SI 2007/1867 so as to decrease the period of time parents have to pay a penalty notice. Parents will now have to pay £60 within 21 days, which will rise to £120 if paid within 22 -28 days of the notice being issued. This will bring the timescales for payment into line with other types of penalty notices. (4 April 2013)
School Information (England) (Amendment) Regulations 2013 (SI 2013/758): SI 2008/3093 requires governing bodies of maintained schools to publish a range of key information online. These regulations, which come into force on 1 September 2013, add an additional requirement on maintained schools to publish specified details relating to the Year 7 literacy and numeracy catch-up premium grant on a website. This is to enable parents to understand how this new funding is being used by schools, and to provide a degree of accountability. (4 April 2013)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Efficiency
LGA: Local public service transformation – A guide to Whole Place Community Budgets: this guide describes how partnerships between public sector organisations in four areas (Essex, Greater Manchester, West Cheshire and the London Tri-boroughs (Hammersmith & Fulham, Kensington & Chelsea and Westminster)), piloted a new approach to local public service transformation during 2012. It aims to help other areas which want to take a similar whole place approach to reforming services. The guide sets out the purpose, key principles and potential benefits of Community Budgets to public services and local people and explores what other areas might do to adopt similar approaches. It also captures some of the key learning that has emerged so far. (25 March 2013)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Energy
DECC: Guidance to English Energy Conservation Authorities – The Home Energy Conservation Act 1995: updated guidance on local authorities' duty under the 1995 Act to publish energy efficiency improvement reports. The first reports had to be published by 31 March 2013, with a copy sent to the Secretary of State, and local authorities have to publish progress reports subsequently. DECC has not indicated which parts of the guidance have been updated. (2 April 2013)For more information on the duty under HECA, see our alert: Home Energy Conservation Act (HECA): An opportunity to innovate and deliver.
If you wish to discuss any of the items noted in this section please contact David Hutton.
Finance
DCLG: Changes to the Capital Finance System – An informal commentary by DCLG on the Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2013 (SI 2013/476): this commentary describes the effects of the two amendments which help authorities manage liabilities for equal pay compensation payments. It does not cover Regulations 3, 4 and 7, relating to the pooling of housing capital receipts, on which DCLG is issuing guidance directly to the authorities affected. (5 April 2013)
R (Buckley) v Sheffield City Council [2013] EWHC 512
(Admin) (Admin Ct): B applied for judical review of the
Council's decision to approve its Council Tax Reduction Scheme. The
effect of the decision was that that B and many poorer residents
who previously benefited from 100% exemption from council tax would
now be required to pay 23% of their council tax liability. B
contended that the decision was unlawful because the
consultation on the proposed scheme offended against the
common law requirement that sufficient information should be
provided to consultees to allow them to make an informed response.
B submitted that in order to be fair a consultation document must
present information about other options that had been considered
and explain why they had been rejected, but the Council had failed
to explain why in deciding to pursue its proposed scheme it
had rejected using any of the options for meeting the shortfall in
funding. Also, the Council had breached its Public Sector Equality
Duty under s.149 of the Equality Act 2010 as it had failed to have
due regard to the impact of the proposals on persons with
"protected characteristics" such as children and disabled
people.
The court held, refusing the application, that the
Council's duty was to consult on its own draft scheme. The court
did not accept that the consultation suggested that there was
simply no alternative to passing the shortfall on to current
Council Tax Benefit recipients. It was clear from the consultation
document that there were other options to which consultees
were free to respond. It was clear from the evidence that the
Council had had due regard to the impact of the proposals on
persons with "protected characteristics" such as children and
disabled people as required by s.149. (13 March 2013)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Housing
Islington LBC v Unite Group Plc [2013] EWHC 508 (Admin)
(Admin Ct): the Council applied for declaratory relief in
respect of student accommodation that was owned and managed by U.
The property was a five-storey block of purpose-built flats, each
containing 4-6 en-suite bedrooms and communal living space, with
commercial premises on the ground floor. It was agreed that each of
the flats was a house in multiple occupation (HMO) within the
meaning of Part 2 of the Housing Act 2004. The issue was whether
the HMOs were HMOs for which a licence from the local authority was
required. Under the Licensing of Houses in Multiple Occupation
(Prescribed Description) (England) Order 2006 (SI 2006/371), a
licence is required where the HMO or any part of it comprises three
storeys or more and is occupied by five or more persons living in
two or more single households. U contended that none of the HMOs
were subject to the duty to apply for a licence because none
comprised three storeys or more. The Council contended that, on
construction of the legislation, any HMO should be licensed if it
was occupied by five or more persons and was situated in a building
containing three storeys or more, e.g. a block of purpose-built
residential apartments of more than three storeys where the owner
of one of such apartments permitted five or more persons to occupy
such an apartment in two or more households.
The court held, dismissing the application, that it was the HMO
that must comprise the three storeys and not the building in which
an HMO happened to be found. The Order was not intended to apply to
a purpose-built flat in a tower block that was sub-let to two
households of five people. Article 3(3)(f) of the Order did not
bring each cluster flat in the building into the licensing regime
because each flat was on one storey and was self contained. The
living accommodation in the HMO and other parts of the premises
used 'in connection with and as an integral part of the HMO' did
not comprise more than one storey and so when the ground floor
business use was added to the HMO the "three storey" threshold was
not reached. (22 March 2013)
DCLG: Tough new housing rules to control immigration: announces new measures to ensure fair play in taxpayer-funded social housing and stop landlords renting homes to illegal migrants:
- new statutory guidance for councils on their allocation policies to ensure that only those who have been resident in the area for at least two years and who have local connections will go on the social housing waiting lists, and encouraging authorities to set other local rules for testing a resident’s connection to the area; and
- private landlords will be required to make simple checks on new tenants to make sure that they are entitled to be in the UK.
(25 March 2013)
DCLG: £9.5 million crackdown on social housing cheats: announces that 65 local authorities are to share £9.5m funding to combat social housing fraud in 2013/14 and 2014/15. The funding is to help local authorities target social tenants who let out their whole home to a third party for profit. This will become an offence under the Prevention of Social Housing Fraud Act 2013, once in force, with those found guilty liable to a fine and a custodial sentence of up to two years; local authorities will be able to recover the proceeds of sub-letting social homes. (3 April 2013)
If you wish to discuss any of the items noted in this section please contact Kane Kirkbride.
Maladministration
Localism Act 2011 (Commencement No. 2 and Transitional Provisions) Order 2013 (SI 2013/722 (C.33)): this Order brings ss.180 - 182 of the Localism Act 2011 (matters relating to the Housing Ombudsman) into force in England on 1 April 2013. It does not commence the part of s.180(1) that inserts para.7D into Sch.2 to the Housing Act 1996 (Enforcement of a housing ombudsman’s determination). These sections extend the Housing Ombudsman's remit to cover local authorities in their capacity as registered providers or managers of housing services while removing these matters from the jurisdiction of the Local Government Ombudsman. A complaint must be referred to the relevant ombudsman by way of a referral from a "designated person", i.e. an MP, a local councillor or a designated tenant panel. (26 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Procurement
Equality & Human Rights Commission: Buying better outcomes – Mainstreaming equality considerations in procurement: A guide for public authorities in England: this guide explains how public authorities may approach the task of ensuring that they comply with the public sector equality duty (PSED) obligations at different stages of the procurement cycle and takes them through equality issues that they may need to consider at each stage. (25 March 2013)
If you wish to discuss any of the items noted in this section please contact Elizabeth Cooper.
Public Health
Royal Society for Public Health: Health improvement in local government – Challenges and opportunities: this report is the third in a series of briefings reviewing changes in commissioning public health in England, with a particular focus on public health improvement. Based on in-depth interviews with a range of professionals working in public health and associated fields, it provides an update on health improvement commissioning as public health moves into local authorities, while also identifying key opportunities and challenges that arise as a result of the transition. (19 March 2013)
DH: Statutory guidance on Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies: explains the duties and powers duties and powers for health and wellbeing boards in relation to Joint Strategic Needs Assessments (JSNAs) and Joint Health and Wellbeing Strategies (JHWSs) under s.116 and s.116A of the Local Government and Public Involvement in Health Act 2007 as amended by the Health and Social Care Act 2012. Health and Wellbeing Boards must have regard to this guidance when preparing their JSNAs and JHWSs, and will have to be able to justify departing from it. (22 March 2013)
Public Health England: Introduction to the PHE Health and Wellbeing Directorate: the Health and Wellbeing Directorate of Public Health England (PHE) works with partners to develop and implement health programmes and address the social factors that affect people’s health. This guide sets out the Directorate's programmes, priorities and approach. (27 March 2013)
DH: Ongoing support for health and wellbeing boards post-April 2013: announces that from 1 April 2013, responsibility for the ongoing development and support programme for Health and Wellbeing Boards will be transferred from DH to the Local Government Association (LGA). The LGA will develop an offer of support for the members and organisations involved in local health and wellbeing boards, local government, and local Healthwatch to create an environment within which Boards can provide the best possible support for their local communities. (27 March 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Regulatory Services
DBIS: 'Can do' guidance will make organising volunteer events simpler: announces that the Office for Civil Society (Cabinet Office) is to publish improved guidance to make it easier for people to organise voluntary events in their communities, removing inconsistencies and confusion highlighted by a review of existing guidance. The ‘Can Do’ Events Guidance will contain easy-to-understand information on planning, health and safety, access issues, budgeting, booking and licensing, insurance and use of public land. It will provide useful links to specialist information and advice for sporting and other specialist events. The new guidance follows a Focus on Enforcement review which examined barriers that hinder the organisation and running of volunteer-led events, such as street parties, charity fundraisers or school fetes. (25 March 2013)
DEFRA: Consultation on repeal of sections 63 to 67 of the Control of Pollution Act 1974 – Abolishing Noise Abatement Zones: Summary of responses: announces that, in light of responses to the December 2012 consultation, DEFRA has decided to repeal ss.63 - 67 of the Control of Pollution Act 1974 and abolish Noise Abatement Zones in England and Wales at the earliest practical legislative opportunity. The analysis suggests that the legislation is little used, is not providing a significant benefit in England and Wales, may be causing uncertainty for businesses in ‘inactive’ NAZs and there would be benefits for local authorities in repealing it. (27 March 2013)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Tortious Liability
Jackson v Oxfordshire CC (Unreported,
QBD): J suffered from cerebral palsy and used a
wheelchair. He appealed against a decision that the local
education authority was not liable in negligence for his injuries
suffered after his wheelchair became stuck as he was being
pushed up a ramp at school, and he fell from the chair. M, who had
been pushing him, gave evidence that a pencil at the foot of the
ramp had caused the chair to tip over but that she had not seen the
pencil until some time after the incident. J alleged that the local
authority was negligent as M had failed to see the pencil lying on
the ramp, or alternatively that it was negligent for failing to
have a proper system of inspection of the ramp that had allowed the
pencil to remain there. The judge held that the instability of the
chair was the main cause of the accident and the school was not
liable as it had not supplied it.
The court held, dismissing the appeal, that the judge had been
entitled to conclude that even if M had seen the pencil, she would
have been entitled to continue pushing the chair on the basis that
it could have ridden over it. The judge could not be criticised for
finding that the local authority had an adequate system in place
for inspecting the ramp; J had failed to produce any expert
evidence to demonstrate that it should have been more vigilant as
to the ramp's safety or that more frequent inspection would have
prevented the accident. There had been no error in law and the
judge had made a decision that was open to him on the
evidence. (26 March 2013)
The judgment is available on Lawtel (password
required).
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
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:
- 23 April 2013 (Bristol): Mock employment tribunal workshop
- 16 May 2013 (Birmingham): The practicalities of being a Monitoring Officer
- 21 May (Bristol), 22 May (London) & 23 May 2013 (Birmingham): Procurement update
For more details on our training programme or information on tailored training to meet your authority's requirements, please contact our Events team.
