Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More04/07/2016
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: Ombudsman issues first dual jurisdiction report following complaint of neglect at Oxfordshire care home: reports that the LGO has issue its first joint investigation report covering the actions of both a private care provider and a council’s subsequent safeguarding investigation into that provider’s quality of care. The investigation was prompted by a complaint from a man who said his wife was left severely dehydrated and suffering from oral thrush after a week-long respite stay at the Huntercombe Hall Care Home, operated by Caring Homes Healthcare Group Ltd. The LGO’s investigation found that the Council did not act in accordance with the law and relevant government guidance, it did not adhere to DH statutory guidance on safeguarding adults and failed to follow its own policy and procedure relating to safeguarding investigation. The investigation also upheld the man’s complaint against the care provider. (30 June 2016)
Welsh Government: Consultation on Phase 1 implementation of the Regulation and Inspection of Social Care (Wales) Act 2016: the 2016 Act provides the statutory framework for the regulation and inspection of social care services and the social care workforce. It will be fully implemented by April 2019, and the intention is that the new system of workforce regulation will be implemented and operational by April 2017. This paper seeks view on a set of draft regulations detailing the key processes underpinning the new system of service regulation – the requirements for registration as a service provider, variation of registration, service provider annual returns, and information to be included in notifications to local authorities. It also includes regulations relating to the requirements for annual reports by directors of social services. The consultation closes on 20 September 2016. (28 June 2016)
DCLG: New stats show councils prioritising adult social care: announces that newly published official statistics show that councils are planning to invest an extra £308m this year on adult social care services. Up to £2bn will come from the new flexibility to introduce a 2% ‘social care precept’, while a further £1.5bn will be available to councils to work with the NHS to ensure that care is available for older and vulnerable people, including following hospital treatment through the Better Care Fund. (30 June 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Anti Social Behaviour
Gill v Birmingham City Council [2016] EWCA Civ 608 (CA): G appealed a committal order sentencing him to 14 months and 23 days' imprisonment for breach of an anti-social behaviour injunction (ASBI). The injunction was based on allegations of a history of domestic violence perpetrated by G on his former partner. G had repeatedly breached that and subsequent ABSIs and while he was on bail for some of those offences, he was convicted in the magistrates' court, after guilty pleas, of a public order offence and of criminal damage. The court upheld the committal order and, in the course of its judgment, gave guidance on the approach to concurrent criminal and committal proceedings regarding the same incident. (28 June 2016)
If you wish to discuss any of the items noted in this section please contact Steve Eccles.
Audit
Local Audit and Accountability Act 2014 (Commencement No. 8 and Commencement No. 7, Transitional Provisions and Savings (Amendment)) Order 2016 (SI 2016/675 (C.48)): this Order makes a number of amendments to SI 2015/841 to reflect that the transitional arrangements for the 2014 Act will end on different dates depending on the type of relevant authority. The transitional arrangements for most smaller authorities (as defined by s.6 of the 2014 Act) and various NHS bodies (see paras.(b) - (e) of the definition of two-year transitional period authority) will end on 31 March 2017; for other relevant authorities, transitional arrangements will end on 31 March 2018. It also brings para.45 of Sch.12 to the 2014 Act into force on 1 April 2018, to account for the longer of the two transitional periods. (27 June 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Children's Services
DfE: Wood Report – Review of the role and functions of Local Safeguarding Children Boards: Local Safeguarding Children Boards (LSCBs) are responsible for improving the overall wellbeing of children in their local-authority area. They include representatives from children’s services, police, district councils and NHS trusts. This review, which was chaired by Alan Wood, sets out a new framework for improving the organisation and delivery of multi-agency arrangements to protect and safeguard children. It makes recommendations for making LSCBs more effective, suggesting that appropriate steps should be taken to recast the statutory framework that underpins the model of LSCBs, Serious Case Reviews (SCRs) and Child Death Overview Panels (CDOPs).
See also the Government's Response to the review, which outlines the recommendations that the Government has accepted. (26 May 2016)
HC Public Accounts Committee: Entitlement to free early years education and childcare: this report warns there may not be enough providers willing to provide the additional 15 hours of free childcare being introduced by the Government in 2017. It also finds that the DfE does not have robust plans to ensure there are sufficient qualified early years staff "so that providers can continue to offer high quality childcare". While "significant progress" has been made towards ensuring all three and four-year-olds benefit from 15 hours' free early education and childcare, take-up for disadvantaged two-year-olds has been significantly lower. The Committee highlights "unacceptable variations" in the amount of information available to parents about access to free childcare, as well as concerns that some providers offer the free entitlement only on condition that parents pay for additional hours. It concludes the DfE "lacks sufficient data to measure the impact of free childcare" and urges it to report back by September "on how it will measure the value for money of the current and new entitlement". It should use pilots of the new entitlement "to test providers' capacity to meet the expected demand…and assess how feasible it is for providers to operate with the new funding rates, and should also take steps to ensure councils provide "sufficient accessible information" to parents about their entitlement and "write to all local authorities to remind them of their statutory duty to ensure that if providers charge for any goods or services, this is not a condition of children accessing their free childcare place". (15 June 2016)
Ofsted: Future of social care inspection: seeks views on proposed changes across Ofsted's inspections of children's social care. It covers: principles for children’s social care inspections; a new approach to inspections of local authority children’s services from 2018; a new common inspection framework for social care establishments, agencies, boarding schools and residential special schools from April 2017; and changes to inspections of independent fostering agencies. The consultation closes on 9 September 2016. (28 June 2016)
Ofsted: Social care annual report 2016: this third Social Care Annual Report presents a mixed picture: while performance is inadequate in too many local authorities, several demonstrate that improvement is possible – often from a low base – and are now leading the way in providing good and outstanding services for children. It shows that a quarter of children’s services departments, 21 in total, are currently rated ‘inadequate’ while 43 require improvement. (28 June 2016)
Ofsted: Introduction to residential family centres – A children’s social care guide to registration: updated guide to registration that explains in detail what a residential family centre is and what the law says it must do. Residential family centre providers and managers must meet a range of legal requirements, including a requirement to register with Ofsted, which expects providers and managers to show how they have taken account of the national minimum standards for residential family centres.
See also Introduction to residential holiday schemes for disabled children – A children’s social care guide to registration. (21 June 2016)
R (O) v Peterborough City Council; Cambridgeshire & Peterborough NHS Foundation Trust (Interested party) (Unreported, Admin Ct): O applied for judicial review of the defendant local authority's decision to make her the subject of a child protection plan (CPP). O was autistic and had started to refuse to eat or drink when she was six years old; she was fed via a nasogastric tube. She was identified as a child in need, but it was found that her home education was excellent and that her mother provided a great deal of emotional warmth. Reports were provided and key risks were identified. An education monitoring officer took the view that a CPP should not be put in place as it was too strong a measure and there was no risk of significant harm to the claimant. However, the other professionals decided that the claimant would be made the subject of a CPP and that she was subject to neglect. The CPP was eventually withdrawn as agreement was reached with respect to medical treatment O contended that the claim did not become academic as the history of a CPP being imposed would have a continuing negative impact on her and her parents. The mother had previously worked with children and the imposition of the CPP would have to be disclosed if she returned to work.
The court held, granting the application, that claim had not become academic with the withdrawal of the CPP. The Council had either failed to understand the concept of neglect or, if it had the concept properly in mind, its conclusion was irrational. There was no evidence of neglect on the parents' part. The only issue was the dispute between the parents and the medical team about residential treatment. In that context, far from being neglectful, the parents had done all they could reasonably have done to seek a second opinion and it had not been their fault that the London hospital had refused to conduct a review. The decision to put the CPP in place was quashed and, in the light of the parents' concerns about the possible future impact of the making of a CPP, the court made a declaration that the decision was null, void and of no effect. (23 June 2016)
The judgment is available on Lawtel (subscription required)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Community Rights
Assets of Community Value Bill 2016-17: this Private Member's Bill has been introduced into the Commons by James Morris MP and has received its 1st Reading. It makes provision about the disposal of land included in a local authority’s list of assets of community value. (29 June 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Economic Development
DCLG: Cash boost to revive seaside towns and communities: invites seaside areas to bid for a share of £200,000 funding from the Coastal Communities Fund to help them set up new Coastal Communities Teams and get their ideas off the ground. The deadline for making an application for a Coastal Community Team is 30 September 2016. Full details are in the prospectus. (30 June 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
DBIS: BIS Prevent advisers: the Counter-Terrorism and Security Act 2015 contains a duty on specified authorities to prevent people from being drawn into terrorism – the ‘Prevent Duty’. Specified authorities, including HE and FE institutions, must comply with the Prevent Duty. This web page provides information on the advisers that have been appointed by the Secretary of State to monitor compliance with the Prevent Duty in non-publicly-funded FE providers. (30 June 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Emergency Planning
DCLG: Site clearance capability: this guidance supports local resilience forum partners in developing their site clearance plans and frameworks. It encourages responders to think more broadly about the range and type of incident which may produce site clearance challenges. It provides examples and lessons learned from incidents over recent years to help responders to identify the key issues that they will need to deal with, and both plan for, and exercise against. It includes a section setting out the roles and responsibilities of key responders involved in site clearance, which include local authorities and FRAs. (25 May 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Employment
HC Justice Committee: Courts and tribunals fees: this report considers changes introduced in recent years by the Government to fees for court users in the civil and family courts and in tribunals, as well as proposals for further changes which are yet to be implemented. It focuses on changes which have had, or may be expected to have, a major impact on litigants and on the caseload of the courts. Much of the Report deals with the impact of fees introduced in 2013 for bringing cases before employment tribunals, which have been particularly controversial. It concludes that major changes are urgently needed to restore an acceptable level of access to the employment tribunals system. The introduction of issue fees and hearing fees for claimants in employment tribunals in July 2013 has led to a drop of almost 70% in the number of cases brought. (17 June 2016)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Equality and Discrimination
Equality and Human Rights Commission: Paulley v FirstGroup PLC: update on the CA decision on whether a bus company's policy regarding use of wheelchair spaces unlawfully discriminated against a wheelchair user. The County Court said that the company’s policy placed P at a ‘substantial disadvantage’ and they could have made changes to avoid it; however, this was overturned on appeal – the CA said it would be ‘a step too far’ because a driver might be left in the situation where they would have to eject someone who refused to move. The case is currently being appealed in the Supreme Court; the EHRC states that it is aiming to overturn the CA decision and provide bus companies with the legal authority to give priority to wheelchair users. (24 June 2016)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
European Union
LGA: Leaving the European Union: this briefing offers a framework for local government’s discussions on the implications of the European Referendum result in order to help prioritise those issues that are most important to councils. (30 June 2016)
See also our alert: Brexit - what now for local authorities? (24 June 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Fisheries
Marine Management Organisation: Delegated Marine Enforcement Officer powers for Inshore Fisheries Conservation Officers: statutory guidance listing the legislation that appointed officers with full Marine Enforcement Officer (MEO) powers can enforce. They can only exercise MEO enforcement powers within the jurisdiction specified in the counterparts to their warrant. (28 June 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Governance
R (Jewish Rights Watch (t/a Jewish Human Rights Watch)) v Leicester City Council, Gwynedd Council and the City and County of Swansea [2016] EWHC 1512 (Admin) (Admin Ct): JHRW applied for judicial review of three Councils' resolutions that were critical of the State of Israel and its policies. It argued that the resolutions were the result of the Councils deliberately involving themselves in an area of foreign policy which they knew was controversial and where strong views were held on each side. JHRW contended that the Councils failed to have due regard to the need to eliminate discrimination and harassment of Jewish people, and the need to foster good relations between those who were Jewish and those who were not; and that they failed to have any regard to the Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010, and their legal duties under s.17 LGA 1988 regarding non-commercial considerations in their public supply or works contracts.
The court held, dismissing the applications, that a public authority's PSED obligation was more easily applied to a formal and developed policy than to resolutions of a local council following debate. The obligations applied primarily, if not exclusively, to those involved in the process of framing and implementing policy (the Executive) rather than those who debated broad issues which might result in policies subsequently drafted and framed in accordance with the law. The duty was likely only to arise where a resolution was closely focused and the policy would be directly implemented. Scrutinising lengthy debates to see whether sufficient consideration had been given to the impact of the resolution on the Jewish community was not a productive exercise. Councillors should not expect that their speeches would be scrutinised later to see whether the Council's PSED was being properly addressed, or whether there was 'proper and conscientious focus on the statutory criteria' - that would significantly inhibit debate.
In relation to the s.17 argument, whatever the form of words used in the motion, the Councils' functions relating to public supply and works contracts were carried out by an Executive in accordance with the Councils' legal duties; and Council motions did not bind the Executive. The evidence was clear: the Council resolutions did not override, or even affect, the lawful exercise of its public functions in relation to public supply or works contracts, and no contracts or potential contracts were affected by the resolutions. (28 June 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Social Care
The King's Fund: Supporting integration through new roles and working across boundaries: this report, commissioned by NHS Employers and the LGA, looks at the evidence on new roles and ways of spanning organisational workforce boundaries to deliver integrated health and social care. It finds increasing focus on roles which facilitate co-ordination and management of care, development of existing roles to increase the skill-mix and enable the provision of more holistic care, and a limited number of truly innovative roles, the most notable being care navigators and community facilitators, enablers or link workers. Given that many of the skills required for integrated care already exist within the workforce, it suggests the central question is how to use those skills more effectively to support boundary-spanning activities. (30 June 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
Homelessness Reduction Bill 2016-17: this Private Member's Bill has been introduced into the Commons and received its 1st Reading. It amends the Housing Act 1996 to make provision about measures for reducing homelessness. (29 June 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Licensing
Home Office: Post-legislative scrutiny of the Licensing Act 2003: this memorandum provides Parliament with: an update on developments since the Act was introduced in 2005; and the most recent assessment of how the Act has operated since commencement, relative to objectives and benchmarks. (22 June 2016)
R (Friends of Finsbury Park) v Festival Republic Ltd [2016] EWHC 1454 (Admin) (Admin Ct): FPP applied for judicial review of the Council's decision to hire out the park for a music festival. They contended that: the decision to close part of the park was unlawful as it contravened the restrictions on the size of the area which may be closed and on the duration for which a park may be closed to the public, and the Council had failed to have regard to a material consideration, i.e. its own Finsbury Park Management Plan; it had failed to carry out the consultation lawfully and in accordance with the legitimate expectation created by its Outdoor Events Policy; and it failed to deal with the application as a key decision and to record the decision and to make the officer report, decision and background documents available as required by the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012.
The court held, refusing the application, that s.145 LGA 1972 (Provision of entertainments) gave the Council the necessary power to permit the festival to take place in the park. Section 145(1) conferred on the Council an express power to do "anything" that was necessary or expedient for the purposes of the provision of an entertainment "of any nature", and that included closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wished to buy tickets to attend it. The consultation was adequate for its purpose. It was correct to designate the decision as a "Non-Key Decision", and the Leader was correct to treat it as such. The Council accepted that the report should have been published 5 clear days before the decision was taken, and it was not. However the decision had now been made available, along with the report, which contained the reasons for it and it was highly unlikely that the outcome would have been substantially different if the documents had been made available. There was no failure to have regard to a material consideration and even if there had been, it was highly unlikely that the outcome would have been substantially different. (22 June 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Procurement
CMA: Procurement tool targets bid-rigging cheats: the CMA has launched an e-learning tool to help procurers and supply chain professionals spot bid-rigging – a serious type of anti-competitive activity that can drive up the prices of contracts for vital goods or services and deny purchasers from getting true value for money. This resource will help procurement professionals understand why bid-rigging is harmful, learn how to spot tell-tale signs that suggest a bid may be illegal, deal with suspect bids and know where to go for further help. (20 June 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Traffic and Transport
Parking Places (Variation of Charges) Bill 2016-17: this Private Member's Bill has been introduced into the commons by David Tredinnick MP and received its 1st Reading. It provides for the procedure to be followed by local authorities when varying the charges to be paid in connection with the use of certain parking places. (29 June 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
