Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More07/06/2016
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
LGO: Older people in Solihull could be refunded incorrectly calculated care charges: an investigation into Solihull MBC has found that the Council may have demanded charges from 63 older people in the borough after assessing their finances incorrectly. The investigation followed a complaint by the family of a man who had been charged the full cost of his care at home. It was argued that he should not have been charged the full cost for his care because his share of the couple’s savings and joint accounts was less than the required amount. The LGO found fault with the way that the Council had applied the capital limit, as it was contrary to the Government’s Fairer Charging Guidance at the time. The LGO's investigation uncovered a further 63 people in the borough who may have been similarly affected. The Council has agreed to ensure any overpayments will be returned to them. (2 June 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Children's Services
Re V-Z (Children) [2016] EWCA Civ 475 (CA): M appealed against care and placement orders made in relation to her four children. M was a Czech national and the family had connections with Slovakia. Under the care plan, each child was to be placed separately from his or her siblings; the older two were to be placed in long term foster care in this country while the younger two were to be adopted. The Slovak authorities had provided two reports about the children's Slovakian maternal grandmother, both of which concluded that she could provide proper care for all of her grandchildren, having ample appropriate accommodation, an enduring relationship with her partner, and family living nearby. The local authority's viability assessment concluded that it was not appropriate to proceed further with the possibility of the grandmother caring for the children. The judge concluded that the parents could not keep the children safe and secure and decided that the grandmother, who would have liked to look after the children if M could not do so, was unsuitable. In the light of the local authority's assessment and other material, the judge concluded that the children's behaviour was such that no carer could cope with them as a sibling group. He rejected the possibility that their grandmother could care for any of them individually and accepted the local authority case that they should all be placed individually in this country in foster care or with adoptive parents.
The court held, allowing the appeal, that the care and placement orders should be set aside and the case remitted for a fresh welfare hearing. The judge's decision could not stand because the option of care by the grandmother had not yet been fully explored and there was not a sufficient foundation for ruling her out as a potential carer for the children. There were a number of significant gaps in the material provided to the Slovak assessors for the purposes of their assessment which left them unable to provide the sort of information about the grandmother that the English authorities required. The assessment of the grandmother remained incomplete and the position had not been reached where it was possible to say that she was unable to care for any of the children. It was unfair to proceed upon the basis that further enquiries would cause a further significant delay when there had simply been no attempt to obtain further information following the second assessment. The welfare decisions in relation to these children would have to be taken again. The court gave guidance to those involved in care proceedings when seeking the assistance of foreign authorities. (25 May 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Delivery of Services
Reform: Local commissioning, local solutions – Devolving offender management: this paper examines options for building on the Government’s reform of the arrangements for managing the prison, probation and surrounding systems in England and Wales. It seeks to build on the ambitious reforms delivered through the Transforming Rehabilitation programme and to map out a direction of travel for further reform of the governance and delivery of prison and probation services. It calls for a different approach: offender management services should be designed and delivered at a local level and they must also be integrated. The proposals in this report set out an ambitious blueprint for reform that sees the Government’s current programme as the first step towards a radically different model of offender management. (23 May 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Devolution
DCLG: Government Response to CLG Select Committee report: “Devolution: the next five years and beyond”: in February 2016the Commons CLG Select Committee issued a report that examined the Cities and Local Devolution Bill and considered whether the Greater Manchester deal, and its health devolution agreement, was a model for other areas. The Committee welcomed the Government's commitment to devolution but urged Government and local leaders to do more to engage the public in devolution proposals, negotiations and outcomes. This response comments on each of the Committee's 40 recommendations, which cover: devolution: objectives and approach; agreed deals; bids, negotiation and agreement of deals: key themes; governance and accountability; health devolution; London; and looking ahead. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Economic Development
Joseph Rowntree Foundation: Major development projects – Connecting people in poverty to jobs: this report considers whether local partners can do more to ensure that unemployed people benefit from job and training opportunities created by development. It finds that while development projects create valuable employment and training opportunities, those opportunities do not automatically help to tackle unemployment and poverty. Drawing on both national evidence and action-research in the Leeds City Region, it demonstrates the opportunities and sets out a framework for action by local authorities, partner organisations and employers. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Education
DfE: Keeping children safe in education – Statutory guidance for schools and colleges: updated statutory guidance on what schools and colleges must do to safeguard and promote the welfare of children and young people under the age of 18. It applies from September 2016. (26 May 2016)
DfE: Wraparound and holiday childcare – Parent and childcare provider 'rights to request': revised departmental guidance to help schools understand how to respond to requests from parents and childcare providers about wraparound and holiday childcare. 'Wraparound childcare' is childcare that schools provide outside of normal school hours, such as breakfast clubs or after school childcare; 'holiday childcare' is childcare that schools provide during school holidays. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Elections
Cabinet Office: EU referendum – Guidance for UK government departments on activities during the period 27 May to 23 June: guidance to civil servants and special advisers ahead of the EU referendum on 23 June 2016. It states that the normal business of government will continue throughout the period of the campaign. However, unlike other ‘purdah’ periods, specific statutory restrictions apply to certain government activity during this period. In particular, the European Union Referendum Act 2015 and the Political Parties, Elections and Referendums Act 2000 impose restrictions on the publication of material by Ministers and public bodies in the 28 days before the referendum. The guidance applies to all staff working in the UK Government, its agencies, non-departmental public bodies and those arm’s length bodies whose expenses are wholly or mainly met from public funds; local authorities should also take note of the advice and the statutory restrictions. (12 May 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Emergency Planning
DEFRA: Flooding and coastal change – Guidance for practitioners: updated information for flood risk management authorities and others involved in managing flood and coastal erosion risks. There is also new guidance on Flood risk and land drainage byelaws, which explains how local councils and internal drainage boards can make byelaws to prevent an increase in flood risk or to manage land drainage. (27 May 2016)
LGA: A councillor's guide to civil emergencies: details councils' legal obligations and their role in civil resilience, as well as the role of councillors in preparing for, responding to and recovering from a civil emergency. It includes case study examples. (25 May 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Equality and Discrimination
Home Office: Independent review into Sharia Law launched: announces the launch of an independent review into the application of Sharia Law in England and Wales. The review, chaired by Professor Mona Siddiqui, will explore whether, and to what extent, the application of Sharia law may be incompatible with the law in England and Wales. It will examine the ways in which Sharia may be being misused, or exploited, in a way that may discriminate against certain groups, undermine shared values and cause social harms. The panel is expected to complete its review in 2017. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Finance
Core Cities UK: A call for greater fiscal autonomy for our cities: this report by Metro Dynamics argues that cities should be able to retain more of the money raised within them to spend locally and in the longer term should move towards fuller fiscal devolution, in line with cities across Europe and the rest of the World. The report states that the Government’s immediate priority should be to achieve ‘sensible reform’ of business rate retention at a local level, making sure city finances are not disadvantaged in the short term.
Core Cities has published a response to the report that says that the first step toward financial freedom is to make sure a workable and fair solution is found to Business Rate localisation, which starts across England from 2020. (23 May 2016)
DCLG: Housing Revenue Account – Draft item 8 credit and item 8 debit (general) determination: seeks views on proposals for the treatment of impairment and depreciation in Housing Revenue Accounts (HRAs) from 1 April 2017. Following the HRA self-financing settlement in 2012, a five year transitional period was put in place to help local authorities manage the impact of changes to the accounting treatment of capital assets by allowing them to “reverse out” impairment charges. This consultation considers how these items should be treated in the HRA after the transitional period ends. The consultation closes on 8 July 2016. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Fire and Rescue Authorities
Home Office: Home Secretary speech on fire reform: the Home Secretary Theresa May has given a speech at a Reform event in London on reforms to Fire & Rescue Service. These include the new statutory duty to collaborate set out in the Policing and Crime Bill and plans for reform of the workforce. (24 May 2016)
NHS England: Working Together - how health, social care and fire and rescue services can increase their reach, scale and impact through joint working: a key aim of the NHS Five Year Forward View is to tackle widespread preventable illness and deep-rooted health inequalities through a radical upgrade in prevention and public health. This paper looks at how health and social care partners, from local authorities to CCGs, can work with fire and rescue services and so make use of fire and rescue service expertise, experience, existing prevention mechanisms and ability to adapt engagement with those most at risk. (1 June 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Governance
House of Commons Library: Directly-elected mayors: this briefing paper explains the status of directly-elected mayors in English and Welsh local government, and the routes to establishing them, including the use of local referendums. It also includes a list of elected mayors and statistics on previous referendums. (19 May 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
DCLG: Information for local authorities on exemptions from the requirements of the Welfare Reform and Work Act 2016 and related regulations: the Welfare Reform and Work Act 2016 introduces a new rent regime for registered providers of social housing in England. This requires local authorities to reduce social rents by 1% p.a. for four years from April 2016 and to comply with restrictions on levels of rents set out in Sch.2 to the Act and in the Social Housing Rents (Exceptions and Miscellaneous Provisions) Regulations 2016 (SI 2016/390). The Secretary of State has power to exempt a local authority fully or partially from their requirements if he considers that the local authority would be unable to avoid serious financial difficulties if it were to comply. This guidance explains the process for obtaining an exemption. There will be an expectation that a local authority should explore thoroughly what it can do to mitigate any financial risk without recourse to an exemption, including looking at all contractual commitments. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Local Government Pension Scheme
DCLG: Local Government Pension Scheme Regulations: seeks views on proposed changes to the Local Government Pension Scheme Regulations 2013 (SI 2013/2356), and the Local Government Pension Scheme (Transitional Provisions, Savings and Amendment) Regulations 2014 (SI 2014/525) in order to introduce the Fair Deal for Staff Pensions (October 2013) for staff in the LGPS who are compulsorily transferred to another service provider. The proposed new regulations will revoke and replace the Best Value Authorities Staff Transfers (Pensions) Direction 2007. The consultation closes on 20 August 2016. (27 May 2016)
If you wish to discuss any of the items noted in this section please contact Alec Bennett.
Nuisance
Waltham Forest LBC v Mitoo (Unreported, Div Ct): M was accused of failing to comply with an abatement notice seeking to prevent him from playing music at a level which caused a nuisance. M argued that he had done so in order to drown out the noise of building works. The magistrates found that that burden had not been discharged and found M not guilty.
The court held, allowing the local authority's appeal, that playing music to drown out other noise could not constitute a reasonable excuse for not complying with an abatement notice. One could not create a nuisance to counter a nuisance, causing neighbours to suffer two types of noise. To allow such behaviour to constitute a reasonable excuse and allow the multiplication of noise would be a perversity. (26 May 2016)
The judgment is available from Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Steven Eccles.
Parish Councils
DCLG: New Burdens Community Governance Review Fund 2016 to 2017 guidance: this fund provides support to local authorities that are required to undertake a Community Governance Review following changes to the rules that make it easier to set up new town and parish councils. There is also an application form. (1 June 2016)
https://www.gov.uk/government/publications/new-burdens-community-governance-review-fund/new-burdens-community-governance-review-fund-2016-to-2017-guidance
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Procurement
CCS: Model Services Contract: updated version of the model terms and conditions for major services contracts that are published for use by government departments and many other public sector organisations. The contract has been developed for services contracts with a value over £10m and replaces the ‘OGC Model ICT Contract’ version 2.3. It reflects current government priorities and recommended ways of doing business. There is also guidance and a Statement of Changes, showing what has changed, where, from the previously issued version. (26 May 2016)
NAO: Government commercial and contracting – An overview of the NAO's work: this overview of the NAO’s work on the government’s management of contracting examines subjects including the Government’s commercial capability, accountability and transparency, and its management of contracted-out service delivery. The NAO and the Public Accounts Committee have acknowledged improvements in the Government’s management of contracts in recent years. But there is much more to be done for government contracting to be effective, meet expected public service standards and provide better value for money for the taxpayer. This overview also looks at areas for improvement including greater transparency of suppliers’ performance, cost and revenue. (25 May 2016)
Social Enterprise UK: Procuring for good – How the Social Value Act is being used by local authorities: this report finds that only 24% of local authorities have a social value policy while 33% say they routinely considered social value in their procurement and commissioning. It concludes that too many councils still see the Act as a duty rather than an opportunity. The Act has been in force for more than three years but is not empowering local authorities in the way it could be. Legal enforcement is needed to ensure social value is given priority in commissioning – the Act lacks teeth and simply asking public sector bodies to consider the creation of social value when commissioning services is not enough. (31 May 2016)
CCS: Procurement Policy Note 05/16 – Open book contract management: this PPN assists in enabling open book contract management (OBCM) to be used in a fair way depending on the risk level and complexity of the contract. This will ensure it is used on those contracts where the additional cost is justified by the level of benefits and risk. It states that organisations should begin assessing their contract portfolios by no later than 24 June 2016, and mobilising resources to begin implementing OBCM by no later than 24 July 2016. There is also guidance on OBCM. (24 May 2016)
See also Government contracts to be open to public for the first time: Cabinet Office announcement of a series of concrete commitments to maintain the UK’s position as the most transparent governments ever. The UK Open Government National Action Plan 2016-18 (NAP) sets out 13 commitments on transparency, anti-corruption and open government. These include commitment to the Open Contracting Data Standard (OCDS) for contracts administered by a central purchasing authority, the Crown Commercial Service – this means that the whole process of awarding public sector contracts will be visible to the public for the first time by October 2016. It will be piloted by HS2.
Procurement Byte: Dynamic Purchasing Systems (DPS) 2 – Setting up a DPS: we have published the second article in our series that looks at practical issues in setting up Dynamic Purchasing Systems (DPS). This article looks at setting up a DPS and creating the initial list of economic operators admitted to the DPS; it also looks at the process for dealing with Requests to Participate (RTPs) from economic operators after the DPS is established. (2 June 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
Private Water Supplies (England) Regulations 2016 (SI 2016/618): these regulations, which come into force on 20 June 2016, revoke and replace SI 2009/3101 requires local authorities to assess and monitor private water supplies in their area. The new regulations transpose the monitoring requirements of the Euratom Directive 2013 so as to add Radon to the analysis suite. They also require local authorities to carry out a risk assessment of new private water supplies, and supplies that have been out of use for more than 12 months, as soon as is reasonably practicable. These risk assessments are then subject to review every five years. (1 June 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Regulatory Services
DfT: Rip-off pedicabs to be driven off the road under new proposals: announces that the Government intends to introduce new legislation that will give Transport for London powers to regulate pedicab drivers in London so they are only allowed to charge reasonable fares and they will have to meet minimum safety standards. The proposed licensing scheme would operate in a similar way to the rules taxi and private hire vehicles. Outside London, pedicabs are classed in the same way as taxis so are regulated; but in London different laws operate – the proposals will close this loophole. The new legislation is likely to be introduced next year. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Transport
DfT: Bus Services Bill – Factsheets: the Bus Services Bill, which was introduced into Parliament on 19 May 2016, strengthens arrangements for partnership working in the sector, introducing ‘enhanced partnerships’; introduces new franchising powers with decisions at a local level; and provides for a step change in the information available to bus passengers. These factsheets summarise the main measures in the Bill and explaining how Government intends that they work in practice. They cover: partnerships and ticketing; open data and registration; and franchising. There is also an over view and a summary of the Bill. (26 May 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
