Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More01/08/2016
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:
Access to Information
DCMS: Digital Economy Bill Factsheet – Digital Government: Better public services: the Digital Economy Bill was introduced into the Commons on 5 July. This factsheet summarises Part 5, which aims to improve public services through better use of data whilst safeguarding citizens’ privacy. It does this by providing a single gateway to enable public authorities, specified by regulation, to share personal information for tightly constrained reasons agreed by Parliament, where its purpose is to improve the welfare of the individual in question. To use the gateway, the proposed sharing of information must be for the purpose of one of the specified objectives, which will be set out in regulations. (5 July 2016)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
LGO: Care should be based on assessed need: the LGO has asked councils to ensure that their care provision is determined by an individual assessment of needs, even in times of financial pressure. This follows an LGO investigation which revealed a council’s attempts to make blanket reductions to the support it gave to vulnerable people without first assessing their needs. The council accepted it had reduced respite care without carrying out a full needs assessment and recognised the instruction given to social work teams had been too rigidly applied and without proper regard to people’s individual needs and circumstances. (19 July 2016)
CQC: Managing care home closures – A good practice guide for local authorities, clinical commissioning groups, NHS England, CQC, providers and partners: this guide is designed to be used by all parties involved in planning and carrying out closure of care homes. It contains a set of essential principles, underpinned by a framework of actions, to ensure that the needs of people using services, their families and carers remain at the heart of the closure process. (26 July 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Audit
LGA: Government approves Public Sector Audit Appointments (PSAA) to become new audit body: announces that DCLG has approved PSAA's bid to become the sector-led body for the independent appointment of auditors for principal authorities in England. The first appointments made under these arrangements will commence in relation to the financial year 2018/19. (22 July 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Children's Services
Home Office: Reporting and acting on child abuse and neglect: seeks views on options for reform of the child protection system in England, specifically in relation to reporting and acting on child abuse and neglect. The options are the introduction of mandatory reporting of child abuse and neglect or an alternative duty to act which focuses on taking appropriate action in relation to child abuse and neglect. It also seeks views on whether the scope of these possible changes should extend to vulnerable adults. The consultation closes on 13 October 2016. (21 July 2016)
R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) (Admin Ct): DAT applied for judicial review of two decisions taken by full Council, as part of the process of setting its budget, to cut funding to voluntary sector organisations that provided short breaks for disabled children. The second decision re-affirmed the first decision. The issues were whether the Council had taken into account relevant considerations and whether it had given due regard to its Public Sector Equality Duty under s.149 of the Equality Act 2010, and what relief, if any, should be given to claimants when a council tax calculation was challenged.
The court held that regarding the first decision, the members had had the factual material which would have enabled them to have due regard to the statutory needs; however, they were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant, or at best, only partly relevant, question. There was no trace in the report and appendices of any guidance for members about any of the issues posed by the Breaks for Carers of Disabled Children Regulations 2011 (SI 2011/7070), or by s.27(2) of the Children and Families Act 2014. There was no reference, either, to the duty imposed by s.11 of the Children Act 2004, or to the best value guidance, to which the Council was required to have regard. Therefore, members' attention was not drawn to mandatory relevant considerations and so the decision was unlawful.
Regarding the second decision, this was tainted by pre-determination. The way in which the issue was presented to the members gave a clear impression that they were expected to apply a rubber stamp to the earlier decision and a clear impression that they could not decide to rescind it. This gave rise to a very clear appearance of predetermination which meant that the second decision had no effect.
It was appropriate to grant relief as there was an exceptional public interest in ensuring that when local authorities cut spending in a way which affected vulnerable children, they were seen to observe the relevant legal provisions, particularly where the amounts at stake were, in relation to the budget as whole, not large, and where there was flexibility in the money available to accommodate a smaller cut. Relief granted in relation to the first decision would not be relief in respect of a challenge to one of the budget calculations and so the court was not restricted to making an order quashing one of those calculations. The risk of losing this case, and of being required to reconsider the decision, was arguably a risk that the Council's reserves were held to meet. The court was not satisfied that members, for whom this was a difficult and painful decision, would have reached the same decision had they been told on at the meeting that they could rescind the first decision nor was it satisfied that there was no room for manoeuvre financially (either from reserves, or from the potential for further savings to which officers referred in the summary report). The first decision would be quashed; the court would not refuse permission to apply for judicial review of the second decision nor would refuse to grant relief. It was not necessary to order the Council to reconsider the decisions. (22 July 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Combined Authorities
Election of Mayor Orders 2016: the following Orders prepare for the introduction of directly elected mayors for the stated combined authority area:
- Halton, Knowsley, Liverpool, St Helens, Sefton and Wirral Combined Authority (Election of Mayor) Order 2016 (SI 2016/782)
- Tees Valley Combined Authority (Election of Mayor) Order 2016 (SI 2016/783)
- Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (Election of Mayor) Order 2016 (SI 2016/800)
Each Order provides that the area of the Combined Authority is to have a directly elected mayor, and for the date of the first and subsequent elections to the role of mayor and the term of office. (19 July 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Commons and Village Greens
R (NHS Property Services Ltd) v Surrey CC [2016] EWHC 1715 (Admin) (Admin Ct): NHSPS applied for judicial review of the Council's decision to register a parcel of land as a town or village green. The main grounds concerned whether the Council had a duty to give reasons for its decision.
The court held, granting the application, that given that there was no statutory duty to give reasons, one must look to the ECHR and to the common law to see if one existed. The effect of registration was a determination of civil rights or obligations and so the giving of reasons was required to achieve compliance with Art.6 ECHR. In addition, the landowner was at risk of losing his freedom to do as he wished with his land; that demanded the provision of reasons, so that he might know whether the decision was made on lawful grounds, and might be able to determine whether he had grounds to challenge it in the courts. The starting point was that the reasons given had to be intelligible and deal adequately with the substance of the arguments advanced. The losing party should know why they had lost and what the legal justification was for doing so, including the reasons why a case was rejected. Here, the committee never considered the question of statutory incompatibility, and gave no reasons for rejecting the claimant's case as an objector. (13 July 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Communities
Home Office: Community sponsorship scheme launched for refugees in the UK: announces that the Home Secretary and the Archbishop of Canterbury have launched a new community sponsorship scheme to enable community groups to take on the role of supporting resettled refugees in the UK. Sponsoring organisations that wish to apply for the scheme must have status as either a registered charity or community interest company, the consent of the local authority in which they wish to operate, and a comprehensive plan for resettlement. There is also a new online service to help refugees in the UK that is initially being piloted in 9 local authorities. It has been designed to enable local authorities to specify the type of donations they most require to support refugees in their area. (19 July 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Delivery of Services
Localis / LGA: Local authority transformational models – Whole council approaches to transformation: this report considers six models of local authority service transformation: Commissioning model; Cooperative approach; Entrepreneurial model; Enabling model; Sharing approach; Holistic and person-centred approach. It contains a brief analysis of the key features of each model, as well as their strengths and weaknesses, alongside a number of case studies. (14 July 2016)
NESTA: Datavores of local government: this discussion paper considers where, how and to what extent better data use can help councils to achieve their strategic objectives. It finds that councils are now using big and small data in a range of innovative ways to improve decision making and inform public service transformation. The paper identifies seven ways in which councils can get more value from the data they hold. It is the first in a series on how data can help councils provide more personalised, effective and efficient services. (15 July 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Education
EFA: Schools revenue funding 2017 to 2018 – Operational Guide: this guide helps local authorities and their schools forums to plan the local implementation of the funding system for the 2017/18 financial year. This information will help local authorities to begin their financial modelling prior to consultation with schools. For 2017/18, the Government has confirmed that no local authority will see a reduction from their 2016/17 funding (adjusted to reflect local authorities’ most recent spending patterns) on the schools block of the dedicated schools grant (DSG) (per pupil funding) or the high needs block (cash amount). It will apply an uplift for high needs later in the year. Final allocations for schools and high needs blocks will follow in December on the basis of pupil numbers recorded in the October census. (21 July 2016)
DfE: Adjustments to local authority funding related to free schools: seeks views on the process of recoupment, where the DfE deducts funding for pupils in academies and free schools from the local authority. It is proposing to make all mainstream free schools recoupable from the first year of opening. This would bring greater consistency to the recoupment arrangements for different types of free school. The consultation closes on 21 September 2016. (21 July 2016)
Education (Pupil Registration) (England) (Amendment) Regulations 2016 (SI 2016/792): these regulations, which come into force on 1 September 2016, amend SI 2006/1751 so as to place a duty on the proprietor of a school to notify their local authority when they remove or add a pupil’s name to the admissions register at non-standard transitions, i.e. where a compulsory school-aged child leaves a school before completing the school’s final year or joins a school after the beginning of the school’s first year. The proprietors of schools will also be required to record the details of the pupil’s residence, the name of the parent with whom they will reside and the date from which they will reside there, and the name of the destination school, where it is apparent the pupil will be moving to a new school. In addition, schools and local authorities will be required to make enquiries collaboratively where a child has not returned to school within 10 school days after an authorised absence or where a pupil is absent without authorisation for at least 20 school days. (22 July 2016)
Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 (SI 2016/808): these regulations, which come into force on 1 September 2016, amend SI 2013/2094 so as to require schools to return three further data items, in addition to existing requirements, via the termly School Census: Nationality; Country of Birth; and Proficiency in English. They also amend SI 2005/1437 to allow these three data items to be transferred between schools when pupils move between settings, via the common transfer file (CTF) process. (27 July 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead or Clare Taylor.
Emergency Planning
National Counter Terrorism Security Office: Procedures for handling bomb threats: guidance for organisations on dealing with bomb threats. It includes a checklist for action to be taken on receipt of such a threat. (18 July 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Employment
Cabinet Office: Code of Practice on the English language requirement for public sector workers: Part 7 of the Immigration Act 2016 imposes a new duty on public authorities to ensure that each person who works for the public authority in a customer-facing role speaks fluent English. This Code of Practice help public authorities to comply with this new "fluency" legal duty. It sets out considerations that public authorities will need to take into account when deciding how to determine the necessary standard of spoken English (or English or Welsh in Wales) to be met by their customer-facing staff, the appropriate complaints procedure to follow should a member of the public consider that the required standard has not been met and the appropriate forms of remedial action which may be taken if a member of staff falls below the standard required. (21 July 2016)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Environmental Services
Mayor of London: Sadiq Khan boosts pollution fund to tackle London toxic air hotspots: announces that a new ‘Low Emission Neighbourhoods’ initiative will be set up across eight boroughs, backed by an £11m fund to tackle to help them implement new air pollution measures, such as strict new penalties for the most polluting vehicles, car-free days, green taxi ranks for zero emission-capable cabs and parking reserved for the cleanest vehicles. (19 July 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
European Union
House of Commons Library: Brexit and local government: this Commons Library briefing paper covers the possible impact of exiting the European Union on local authorities. It considers: devolution deals; EU structural funds; compliance with EU law; and medium-term financial implications. (20 July 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes or Frances Woodhead.
Finance
Welsh Government: Consultation on the Local Authorities (Calculations of Council Tax Base) (Wales) (Amendment) Regulations 2016: seek views on the proposed treatment of the council tax premiums within the calculation of the tax base. The consultation closes on 2 September 2016. (15 July 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Housing
LGA: Get in on the Act – The Housing and Planning Act 2016: the Housing and Planning Act 2016, which received Royal Assent on 12 May 2016, contains provisions on new homes (including starter homes), landlords and property agents, abandoned premises, social housing (including extending the Right to Buy to housing association tenants, sale of local authority assets, ‘pay-to-stay', and secure tenancies), planning, compulsory purchase and public land (duty to dispose). This briefing summarises the Act's key provisions and their implications for local government. (25 July 2016)
LGA: Building our homes, communities and future – Preliminary findings from the LGA Housing Commission: the LGA launched a Housing Commission to set out a forward-looking vision for the future of housing and the relationship between councils and communities. This paper summarises some of the emerging areas of recommendation around four intrinsically connected themes: Building more homes; Prosperous places; Housing boosting employment; and Housing an ageing population.
The LGA is calling on new ministers to take urgent steps so councils can resume their historic role as a major builder of new homes and help tackle the nation's deepening housing crisis. It warns the economic uncertainty caused by Brexit and a widespread and growing demand for affordable homes - including for social and affordable rent - makes it even more important for councils to be handed greater powers to build new homes. (6 July 2016)
YA v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin) (Admin Ct): Y, a care leaver, applied for judicial review of the Council's decision to refuse to enter him on its housing register. At the time of the decision Y had a number of spent convictions under the Rehabilitation of Offenders Act 1974. The issues were whether it was lawful to take account of those convictions and whether there was indirect discrimination in the Council's housing allocation scheme. The council argued that whether a person's behaviour amounted to the commission of a criminal offence, or had given rise to criminal process, was different from consideration of the behaviour itself, and that Y's behaviour remained relevant even if the convictions resulting from it were spent, and his behaviour included incidents which were 'hardly minor matters' which the Council was entitled to take into account.
The court held, allowing Y's claim in part, that it was not lawful to base a decision about Y on the offences that he was convicted of and it was not lawful to base a decision on the conduct constituting those offences because s.4 of the Rehabilitation of Offenders Act 1974 prohibited it where the convictions were spent. The Convictions Document did not contain any details of 'behaviours' but rather details of criminal convictions and the sentence passed in relation to those convictions, and it clearly fell within s.4(1). The Council had acted unlawfully in basing its decision not to enter Y on the housing register on the offences that he was convicted of and it was not lawful to base a decision on the conduct constituting those offences. However, the indirect discrimination under Art.14 ECHR in the housing allocation scheme, as applied to care leavers such as Y, was justified and so the claim under Art.14 failed. (27 July 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Human Rights
Home Office: Action against hate – The UK Government’s plan for tackling hate crime: sets out the Government’s plan of actions to deal with hate crime until May 2020. It contains measures to increase reporting of incidents and crimes, including working with communities and police to develop third party reporting centres. It covers work to prevent hate crimes on public transport and sets out how stronger support will be provided for victims. The Action Plan will be reviewed in 2018 to ensure that the commitments within it are being delivered as expected.
Alongside the Action Plan, the Government has launched a £2.4m funding scheme for places of worship, to provide security measures and equipment for vulnerable places of worship that need increased protection. (26 July 2016)
Joint Select Committee on Human Rights: Counter extremism: this report concludes that, while there is agreement that tackling terrorism is a priority, there is no agreement about how to combat extremism, particularly since the Government is also under a duty to uphold the democratic and human rights which terrorists so often aim to extinguish. Over the past year progress on a forthcoming Counter Extremism Bill appears to have stalled or even gone backwards, with the Government retreating from providing any level of detail. The Committee recommends that if any new legislation is brought forward it must be informed by evidence as to what works and what simply drives wedges between communities, and that the Prevent strategy must be reviewed. The Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework. The current counter-terrorism, public order and equality legislation, including the Public Order Act 1986 and the Terrorism Act 2000, form an extensive legal framework for dealing with people who promote violence. So far, the Government has not been able to demonstrate that a significant gap in this framework exists. (22 July 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Judicial Review
R (Southwark LBC) v London Fire and Emergency Planning Authority [2016] EWHC 1701 (Admin) (Admin Ct): the Council applied for judicial review of the FRA's decision to retain responsibility for the consideration and potential prosecution of the Council for offences under the Regulatory Reform (Fire Safety) Order 2005, following a fire in a social housing tower block in which six people died. The Council contended that the FRA was the responsible body for the operation and organisation of the London Fire Brigade and was therefore conflicted in relation both to the decision and any possible prosecution and that these should be passed to the HSE.
The court held, refusing the application, that the test re bias turned on the perception of the independent and well informed observer. The test was objective and assumed that the observer had considered and understood the relevant features of the decision to be taken; it was not to be derived from an instinctive or emotional perspective. If an allegation of breach of the 2005 Order was to be established, it would have to be based on the extent to which the Council failed to comply with its statutory duty, which was freestanding of any failures during the fire itself. There was no real problem of "mixed interest" or conflict for the FRA. The question was whether any alleged breaches of the 2005 Order resulted in a risk of death or serious injury in the case of fire and whether it was in the public interest to prosecute the Council, which were exactly the same as any other prosecutorial decision arising from a fire in which a fire brigade would almost inevitably have played a part in the fire-fighting or rescue. The decision whether or not to prosecute and any prosecution would be taken by a solicitor employed in a different wing of the FRA's structure, with no direct link to the fire and rescue role of the FRA's which was separately fulfilled through the Brigade. Furthermore, it would be reached with the benefit of advice from independent counsel and based upon the Code for Prosecutors, so that it was taken "fairly, impartially and with integrity". The process of a decision by the FRA as to whether or not to prosecute the Council for any breach of the 2005 Order would not have the appearance of bias to a fair minded and informed observer, nor would the pursuit of any prosecution be infected by the appearance of bias. (15 July 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Maladministration
LGO: Review of local government complaints 2015-16: this latest annual review sets out the complaint statistics of the LGO for its local government jurisdiction, for the year ending 31 March 2016. It shows that the LGO is upholding more complaints – 51% of detailed investigations in 2015/16 were upheld, up from 46% the previous year. There was a 13% increase in complaints and enquiries about education and children’s services, while the LGO was most likely to find fault in complaints about benefits and tax (64%), and least likely to find fault in complaints about highways and transport (40%). (28 July 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Members
Local Government Research Unit: Councillor Commission: the LGRU at De Montfort, together with the Municipal Journal, have launched a Councillor Commission to explore the roles, tasks, functions, powers and responsibilities of the councillor. The Commission is seeking evidence from councillors, local government officers and all those with an interest and concern for effective local democracy, with the aim of promoting a positive debate about the changes needed to enhance councillors’ ability to govern local communities. (22 July 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes or Frances Woodhead.
Planning Policy
Welsh Government: Proposed Technical Advice Note (TAN) 24 The Historic Environment: seeks views on new detailed planning guidance that will fully reflect the Welsh Government's objectives for a well-protected and accessible historic environment that contributes to quality of life and place, and meet the needs of a modern and accountable system for considering how changes affecting the historic environment are managed through the planning system. The consultation closes on 3 October 2016. (11 July 2016)
Lisle-Mainwaring v Kensington & Chelsea RLBC (Unreported, Crown Ct): LM appealed against a notice served on her by the Council under s.215 of the Town and Country Planning Act 1990 requiring her to paint the front of her property white. The property was in a conservation area, and LM had painted it in red and white stripes following a dispute with neighbours. LM contended that a s.215 notice could be only be used to require the repair of a property in disrepair which was adversely affecting the amenity of the area and that amenity was adversely affected only where there was a current maintenance issue, and so an application of paint could not affect "the condition of land" within s.215.
The court held, dismissing the appeal, that the "condition of land" referred to the current state of the land, and a s.215 notice could be used in whole or in part to effect alterations to property going beyond maintenance so as to regulate the land's appearance. The external painting of a building would not ordinarily adversely affect amenity. However, one of the conservation area's key features was its visual integrity, which was underlined by the limited range of neutral colours on painted buildings. Painting the property in garish stripes was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly, and s.215 provided an effective mechanism for dealing with unsightly land. LM was required to repaint the property white within 28 days. (12 July 2016)
The judgment is available on Lawtel (subscription required)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Procurement
CCS: Procurement Policy Note 07/16 Legal requirement to publish on Contracts Finder: this PPN reminds contracting authorities to ensure that any procurement opportunities and contract awards above certain low thresholds are published on Contracts Finder. It should be read alongside the guidance on transparency requirements for publishing on Contracts Finder. The PPN provides additional guidance to assist contracting authorities to meet the requirements. (19 July 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Tortious Liability
Hastings BC v Manolete Partners Plc [2016] UKSC 50 (Sup Ct): the Council appealed against a decision that it was liable to pay compensation to the operators of a business on a seaside pier, which the Council had temporarily closed to the public in the exercise of its powers under s.78 of the Building Act 1984. MP, as assignee of one of the tenants operating businesses on the pier, claimed compensation for loss of profits during that period under s.106 of the 1984 Act. The issue in the appeal was whether the operators of the business on the pier were "in default" within the meaning of s.106(1) of the Building Act 1984.
The court held, dismissing the appeal, that the matter which triggered the Council's action was the state of the pier combined with fear of possible collapse from crowd-loading during the events planned for that month, particularly the risk of overloading in an emergency evacuation. The tenant was not legally responsible for the state of the pier, nor was it responsible for the events which triggered the Council’s action. It was not “in default” as to the matter which led to the Council’s use of section 78. There was nothing in the factors relied on in the courts below which required the words “in default” to be limited to default under the Occupiers' Liability Act 1984, and they were right to hold that the authority had no defence in principle to the claim for compensation, because it was not default by the tenant which led to the emergency action under s.78. (27 July 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Traffic and Transport
DfT: Government awards £30 million funding for cleaner, greener bus journeys: announces the 13 successful local authorities and bus operators across England that have been awarded a share of the funding to buy low emission buses and install chargepoints and other infrastructure. (25 July 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
