Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More11/04/2016
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
Southwark LBC v KA (Capacity to Marry) [2016] EWHC 661 (Fam) (CoP): the Council applied for declarations that KA, 29 year old learning disabled man, lacked capacity to make decisions as to litigation, personal care and welfare, sexual relations, and marriage. The Council had urgently sought and obtained Forced Marriage Protection Orders after psychiatric and social work assessments recorded that KA's family was endeavouring to find a wife for him who would care for KA as would any children once KA's parents became too old. At that time KA appeared to have limited if any understanding of sexual activity or the meaning of marriage. It was accepted that as a result of his functional disability KA lacked the capacity to conduct the proceedings or to instruct legal representatives direct. A consultant psychologist and behavioural analyst concluded that KA was concrete in his thinking and knew he was talking to her about marriage and children; she considered that KA would find it a significant deprivation if he could not marry and have sexual intercourse.
The court held that under s.1(2) of the Mental Capacity Act 2005, a person must be assumed to have capacity unless it was established that he lacked it. The tests for capacity in respect of sexual relations and marriage were not high or complex and the court must not set the test too high nor add to any further relevant information to the requirement for understanding as this was likely to involve unnecessary paternalism and a derogation from personal autonomy. The issue of marriage hung very much on KA's capacity to enter into sexual relations, and the two were interlinked. Regarding sexual relations, KA had the necessary degree of understanding – he would know what he was doing and that it was a sexual act. The issue of consent was not part of the 'information' test as to the nature of the act or its foreseeable consequences but went to the root of capacity itself. The court found that KA both understood and retained the understanding of the necessity for consent of both himself and his partner/spouse. The decision was about capacity and not welfare so the judge would not take into account aspects of KA's decision making which affected the consequence of his decision making, so long as they did not affect the decision making process in itself. The presumption that KA had the capacity both to enter into sexual relations and to marry was not displaced. The judge was satisfied that KA had the capacity to understand and make decisions about his care needs, and he did not lack capacity in respect of medical treatment in general. The court made declarations that KA did not have the capacity to litigate for the purpose of these proceedings but otherwise he had capacity in the relevant domains. (23 March 2016)
Care Act 2014 (Commencement No. 5) Order 2016 (SI 2016/464 (C.25)): this Order brings a number of provisions of the 2014 Act into force on 6 April 2016. They include s.50 (provider failure: temporary duty on local authority in Wales) and s.75(8) - (11) and Part 2 of Sch.4 (after-care in Wales under the Mental Health Act 1983). (24 March 2016)
Social Services and Well-being (Wales) Act 2014 (Commencement No. 3, Savings and Transitional Provisions) Order 2016 (SI 2016/412 (W.130) (C.21)): the 2014 Act imposes duties on local authorities, health boards and Welsh Ministers that require them to work to promote the well-being of those who need care and support, or carers who need support. This Order brings the remaining provisions of the 2014 Act into force in Wales on 6 April 2016.
Welsh local authorities, when exercising their social services functions, must act in accordance with the requirements contained in the Codes of Practice. Local authorities and Local Health Boards must have regard to the statutory guidance in relation to partnership arrangements which are required under s.166 of the Act. (19 March 2016)
Social Services Code (Role of the Director of Social Services) (Appointed Day) (Wales) Order 2016 (SI 2016/414 (W.132)): this Order appoints 6 April 2016 as the day on which the Code of Practice on the role of the Director of Social Services (DSS) comes into force in Wales under the Social Services and Well-being (Wales) Act 2014. The Code includes requirements and guidelines in relation to the role of the DSS, as appointed by a Welsh local authority under s.144(1) of the 2014 Act. The Code also specifies the competences to be demonstrated by a DSS for the purposes of s.144(2) of the 2014 Act. Welsh local authorities must act in accordance with any relevant requirements contained in the Code and have regard to any relevant guidelines contained in it. (21 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Children's Services
DfE: Children’s Social Care Innovation programme – How to get involved: information on the Programme that seeks to develop, test and share effective ways of supporting children who need help from children’s social care services. It details how the Programme will operate over the next four years, the types of projects it will support, and the kinds of support available. (3 April 2016)
DfE: Childcare free entitlement – delivery model: seeks views on key elements of the operation and delivery of the 30 hours' extended free childcare entitlement for the working parents of 3- and 4-year olds. The paper covers some of the aspects of implementation of the 30 hour free entitlement offer, particularly how this will be delivered by local authorities, how the offer will meet the needs of working parents, and options for delivery. It includes draft statutory guidance for English local authorities on their duties under the Childcare Act 2016 and the Childcare Act 2006 to secure free childcare for qualifying children of working parents in their area. The consultation closes on 6 June 2016. There are also draft Childcare Act 2006 (Provision of Information to Parents) (England) (Amendment) Regulations 2016 and draft Childcare Regulations 2016. (3 April 2016)
The DfE has issued a Call for expressions of interest – Early years capital funding that invites local authorities to bid for funding to support the delivery of the 30 hours extended entitlement coming into effect from September 2017. The closing date for Expressions of Interest is 29 April 2016.
ADCS / CAFCASS: Practice guidance for the use of s.20 provision in the Children Act 1989 in England and the equivalent s.76 of the Social Services and Well-Being (Wales) Act 2014 in Wales: this guidance clarifies expectations on local authorities for children looked after under s.20 of the Children Act 1989. There is no existing statutory or judicial guidance about using s.20 (s.76 of the 2014 Act in Wales). The guidance follows on from recent judgments about the current use of s.20 which may lead local authorities to misinterpret the law. It confirms that being looked after under s.20 remains a viable option for many children despite the recent concern, expressed by the judiciary and others in the sector, at cases where children have been left to 'drift' without decent care plans in place, with those children suffering harm or detriment as a result. It also confirms that local authorities should review all open s.20 cases to ensure that s.20 status remains the appropriate current legal option and framework for the child. It sets out best practice of s.20 for newborn babies, and examples of where s.20 is used appropriately. It also clarifies the duties and responsibilities of a local authority to a Looked After child. (1 April 2016)
Ofsted: Inspection handbook – Children’s homes: updated guidance Ofsted inspectors when conducting inspections of children’s homes. It should be read in conjunction with Inspection of children’s homes: framework for inspection from 1 April 2015. (30 March 2016)
Ofsted: introduction to children's homes: updated guide for applicants on what they must understand and prove in order to become registered to provide and/or manage a children’s home. (30 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Commons and Village Greens
Somerford Parish Council v Cheshire East BC [2016] EWHC 619 (Admin) (Admin Ct): the court granted the Parish Council's application for judicial review of CEBC's decision to reject an application by B to register land as a new town or village green under s.15(2) of the Commons Act 2006. The court found that the independent legal expert's advice was vitiated by procedural error in allowing CEBC's evidence out of time and without giving B the opportunity to comment on the late evidence. Also, the independent Legal Expert should have concluded that a public inquiry was necessary to determine the issue as to whether the application land was a highway. CEBC's decision was quashed. (21 March 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Communities
DCLG: New £1.5 million funding to bring communities together: announces additional funding for the Near Neighbours programme that provides small grants and support to grassroots groups to help them run projects which bring about lasting benefits to neighbourhoods with significant religious diversity. (4 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Devolution
HC Library: Devolution to local government in England: this research briefing analyses the Devolution Deals agreed between the Government and local government areas in England. It summarises the main developments regarding the process of devolution of powers to local government. It covers the devolution deals agreed to date between the Government and local areas, including the powers to be devolved, the procedures required for devolution to take place, and reactions to the policy from the local government and policy-making worlds. It includes a section on governance. The Appendix has a useful table showing the powers to be devolved in each of the Devolution Deals. (5 April 2016)
LGA: Charting progress on the health devolution journey – Early lessons from Greater Manchester: in February 2016 the LGA brought together a group of senior leaders from health and local government in Greater Manchester with their peers from areas with aspirations for health devolution. The group discussed the early lessons emerging from Greater Manchester’s experience on how to turn a successful case for health devolution into an achievable strategy. This paper summarises the presentations given at the event and the discussions that followed, to help other local areas in identifying their own aspirations for health devolution and charting a clear course to a place-based plan to improve health outcomes, transform models of prevention and care, and meet shared financial challenges. (1 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Education
School Information (England) (Amendment) Regulations 2016 (SI 2016/451): these regulations, which come into force on 1 September 2016, update the current requirements on maintained schools to publish their Key Stage 2 and Key Stage 4 results. They also require all schools with a sixth form to publish their 16 to18 (Key Stage 5) results on their websites. They add a new requirement on schools to publish their complaints procedure online and make some changes to the current pupil premium publication requirements. (30 March 2016)
Education and Adoption Act 2016 (Commencement, Transitional Provisions and Savings) Regulations 2016 (SI 2016/466 (C.27)): these regulations bring ss.2-14 of the 2016 Act (maintained schools – intervention) into force on 18 April 2016. (29 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Finance
DCLG: Three years on – An independent review of local Council Tax support schemes: the Government appointed Eric Ollerenshaw OBE to lead an independent review into local Council Tax Support (LCTS) schemes, focusing on the requirements set out in the Local Government Finance Act 2012, whether the schemes were efficient, effective, fair and transparent, and their impact on the localism agenda, and to make recommendations as to whether or not the schemes should be brought within Universal Credit. This report finds that local government has effectively implemented the LCTS schemes, despite difficult circumstances. However, there remain some barriers which prevent schemes from fully meeting Government policy objectives, and the report makes a number of recommendations to correct these. The review also concludes that LCTS should not be moved into Universal Credit at this time as such a move would be complex and disruptive to both central and local government at this critical phase in the Universal Credit timetable; it would also cause unnecessary financial risk to councils and bring confusion and disruption to LCTS recipients. (8 April 2016)
DCLG: Business Rates Information Letter (2/2016): provides information on Budget 2016 announcements on business rates. (4 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Social Care
Welsh Government: £60m to join up health and social care services: announces funding from the Welsh Government’s intermediate care fund in 2016-17 to improve care coordination between social services, health, housing, education and the third and independent sector through innovating and enhancing schemes which: support frail and older people; develop integrated services for people with learning disabilities and children with complex needs; and develop an integrated autism service, focusing on a multidisciplinary team to support autism in adults and enhancing existing children’s neurodevelopmental services. (1 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Housing
LGO: Making a house a home – Local authorities and disabled adaptations: local housing authorities have a statutory duty to provide help for major adaptations to disabled people’s homes, which is usually done by a housing authority providing a Disabled Facilities Grant (DFG). This focus report highlights some of the complaints it receives when the DFG process goes wrong, and the significant impact this can have on people’s daily lives. The report gives good practice guidance to local authorities to improve their grant allocation schemes. It also offers elected members questions they can ask to scrutinise their own grants processes to ensure that the problems investigated do not surface in their authorities. (31 March 2016)
London Housing Commission: Building a new deal for London: this report proposes a new deal to secure essential powers and resources for the London Mayor and boroughs, and a programme of immediate actions to start to redress the crisis in London housing. It argues that the next Mayor of London and the 33 boroughs should join forces to strike a major devolution deal with central government. They should commit to increase supply to 50,000 homes p.a. by the end of the decade, to ensure that London has sufficient affordable housing for citizens of all income levels, and to eliminate poor conditions in the rented market. In return, the government should give London significant new freedoms to control its own planning, borrowing and taxes. (7 March 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Land Registration
DBIS: Consultation on moving Land Registry operations to the private sector: seeks views on proposals to move the operation of the Land Registry into the private sector; however, ownership of the Registers would not change. Government will also continue to offer key protections to customers, including fees being set before Parliament and the continuation of the state-backed guarantee when a loss is incurred as a result of a mistake in the Register. It states that under private sector ownership, it is expected that a new owner will commit to making progress on delivering a central register of Local Land Charges which will become part of the core statutory functions of the Land Registry and will be one of the Registers remaining under government ownership. The Government anticipates consulting shortly regarding some of the rules of the new service. The consultation closes on 26 May 2016. (24 March 2016)
If you wish to discuss any of the items noted in this section please contact Mark Calverley.
Performance
Welsh Government: Proposal to revoke the Local Government (Performance Indicators) (Wales) Order 2012: seeks views on a proposal to revoke the statutory National Strategic Indicators (NSI) for local authorities in Wales that are set under s.8 of the Local Government (Wales) Measure 2009. This follows a review of the existing NSI requirements set out in the Order has concluded that the indicators are largely duplicated, overlap or have been superseded by performance data requirements set out in other legislation or performance frameworks. The consultation closes on 6 June 2016. (15 March 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Police
HC Home Affairs Committee: Police and Crime Commissioners – Here to stay: this report says that Police and Crime Commissioners (PCCs) are here to stay, but warns of a lack of competition for Chief Constable vacancies and the need for more transparency. As the first four year term of PCCs draws to a close, the Select Committee says that the PCCs who will be elected in May must prioritise consolidating the work of their predecessors before considering further expansions of their role and powers. (25 March 2016)
Greater Manchester Combined Authority (Election of Mayor with Police and Crime Commissioner Functions) Order 2016 (SI 2016/448): this Order, which comes into force on 30 March 2016, makes essential provision in preparation for the introduction of a directly elected mayor for the area of the Greater Manchester Combined Authority (GMCA), whose functions will include functions previously exercised by the PCC for Greater Manchester. The order provides that the GMCA area is to have a directly elected mayor, and sets out provisions regarding elections to the role of mayor and the term of office, the exercise of PCC functions; and transitional matters. (29 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Procurement
DCLG: Procurement Law – ESIF Compliance Guidance Note (ESIF-GN-1-001): updated procurement guidance for ESIF (European Regional Development Fund and the European Social Fund) projects, to reflect the new procurement thresholds that came into force from 1 January 2016. Some clarity has also been provided in Chapter 6 to set out when the Treaty Principles and National Rules apply. It warns that no organisation should apply for ESIF unless it has fully considered and planned how it will be able to demonstrate compliance with public procurement law, the Treaty Principles or National Rules as appropriate in selecting the suppliers of goods, works or services part funded through ESIF. (30 March 2016)
See also the Procurement Aide Memoire for applicants and grant recipients. (February 2016).
Cabinet Office: Procurement policy note 03/16 – Publication of payment performance statistics: explains how public sector contracting authorities are to start publishing annual payment performance data under reg.113(7) of the Public Contracts Regulations 2015. After March 2016, and then at the end of each financial year, contracting authorities are required to publish data demonstrating compliance with the obligation to pay invoices within 30 days to first tier suppliers/prime contractors over the previous 12 months. (29 March 2016)
Newlyn Plc v Waltham Forest LBC [2016] EWHC 771 (TCC): N was an unsuccessful tenderer in the Council's procurement for new contractual arrangements for bailiffs and enforcement agency services. It challenged the contract award, claiming that the Council had failed to comply with the Public Contract Regulations 2015 (PCR). The Council applied to strike out N's claim.
The court held, granting the application, that the proposed contract for enforcement agency services was a services concession contract and therefore outside the PCR. The Council's decision was outside the PCR, and any application for judicial review would be doomed to fail as a matter of law. Nor was there any question of any automatic suspension preventing the Council from entering into contracts with the successful tenderers. (6 April 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
LGA: The community pharmacy offer for improving the public's health – A briefing for local government and health and wellbeing boards: this briefing for councillors, senior council officers and commissioners describes the increasing role of community pharmacy in public health and explains councils' role and duties. A number of case studies are included to illustrate a variety of collaborative approaches by community pharmacies working with councils and other community partners. (30 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Regulatory Services
DEFRA: Compulsory dog microchipping comes into effect: announces the coming into force of new measures that require all dog-owners to ensure that their dog is microchipped and their details are kept up to date. The press release states that DEFRA expects these new measures to save local authorities and charities, which would otherwise feed, kennel and home stray dogs, up to £33m p.a. (6 April 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Social Enterprises
Cabinet Office: Conversion to a Charitable Incorporated Organisation: seeks views on a set of draft regulations that would provide a simple process for charities which have been established with the company structure to convert to the Charitable Incorporated Organisation (CIO) structure. They would also enable some community interest companies to become charities and adopt the CIO structure. The paper also sets out a provisional timetable for phased implementation, to assist the Charity Commission in managing anticipated demand for conversions. The consultation closes on 10 June 2016. (1 April 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
