Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More12/09/2016
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
Willetts v Information Commissioner & Conwy CBC (Dismissed : Freedom of Information Act 2000) [2016] UKFTT 2016_0068 (GRC): the Tribunal has dismissed an appeal against the ICO's finding that W's FOI request was vexatious. W was acting as McKenzie friend for H, a bankrupt, in High Court proceedings in which H was challenging the management of his bankruptcy. H had been the owner of a pier at Colwyn Bay but this had been disclaimed by his trustee in bankruptcy and title had been transferred to the Council. W made a number of FOI requests to the Council relating to the pier and the Council's ownership. The Council refused to supply the information requested in the latest request on the basis that the request was vexatious and repetitious, under s.14(1) & (2) FOI Act 2000. The ICO found that the request related to ongoing litigation, was of limited public value and that dealing with it would be a disproportionate burden on the Council's resources.
The tribunal found that W had failed to show that the ICO had erred in law in coming to his decision. W's request was pursuing an argument about ownership of the pier which had been extensively litigated and the issue would be resolved in the court. W had been pursuing his argument through an inappropriate route. His request had no serious purpose and the Council's burden of responding to it was substantial. The ICO's decision was correct. (29 August 2016)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Children's Services
Local Authority (Duty to Secure Early Years Provision Free of Charge) (Amendment) Regulations 2016 (SI 2016/887): these regulations, which come into force on 30 September 2016, amend SI 2014/2147 relating to local authorities' duty under s.7 of the Childcare Act 2006 to provide childcare, free of charge, to each young child in their area. The amendments reflect changes to the system for grading the quality of early years childminder agencies, as a result of which they will be assessed as either "effective" or "not effective". (6 September 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Culture & Heritage
DCMS: Review of museums in England: DCMS has launched a review to gain a deeper understanding of the museums sector, the issues it faces and how it can be best supported by Government. The review will consider how museums and galleries across England can thrive and become even more inclusive. It will look at how the sector operates, the challenges it faces and the role of government-sponsored museums. DCMS has issued a call for evidence to inform the review. The closing date for submissions is 31 October 2016. (5 September 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Delivery of Services
NAO: Local public service reform – NAO insight report and resource guide: summarises the findings of research to find out how local public service reform is being pursued in eight places in England, what the enablers and barriers are and how the Government is supporting reform at a local level. It also identifies sources of help that may be useful to local areas. (7 September 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Education
DfE: Children missing education – Statutory guidance for local authorities: updated statutory guidance setting out key principles to enable local authorities in England to implement their legal duty under s.436A of the Education Act 1996 to make arrangements to identify, as far as it is possible to do so, children missing education. Local authorities should be able to demonstrate that they have considered this statutory guidance and where it is not followed, the local authority should have reasonable grounds for not so doing. (5 September 2016)
DfE: Keeping children safe in education – Statutory guidance for schools and colleges: updated statutory guidance on what schools and colleges should do, and the legal duties with which they must comply, in order to keep children safe. Schools and colleges must have regard to this guidance when carrying out their duties to safeguard and promote the welfare of children, so should comply with it unless exceptional circumstances arise. (5 September 2016)
House of Commons Library: School buildings and capital funding (England): this paper provides information on the levels of funding available for capital projects in English schools, as well as on the streams of funding schools may access. It includes a summary of local authorities' duties to provide school places. It includes a section on the Priority School Building Programme, implemented by the Coalition Government as a replacement for the previous Building Schools for the Future programme. (7 September 2016)
Hertfordshire CC v MC and KC (SEN) (Special educational needs : Failure to make a statement) [2016] UKUT 385 (AAC) (UT): the Council appealed against the First Tier Tribunal's decision requiring it to issue an Education, Health and Care Plan (EHC Plan) in respect of C's 8 year old son, J, who had been diagnosed with high-functioning autistic spectrum disorder. The Council had carried out an assessment of J’s educational, health care and social care needs under s.36 of the Children and Families Act 2014 but decided that it was not necessary to issue an EHC Plan under s.37(1). The Council argued that the FtT had failed to consider whether J had a learning difficulty within the meaning of s.20 of the 2014 Act and had failed to provide adequate reasons for its decision that an EHC Plan was necessary.
The Upper Tribunal held, dismissing the appeal, that whether J had a learning difficulty had not been a live issue before the FtT; also the Council had accepted that J had special educational needs. The tribunal gave guidance on the interpretation of s.20: there was likely to be an overlap between a learning difficulty and a disability by virtue of the definition in the Equality Act 2010 and ‘disability’ appeared to bear a very wide meaning. However, s.20(2)(b) applied only to a disability which prevented or hindered the child from making use of 'facilities’ – this was likely to refer to physical facilities such as the playground, lunch hall, toilets, corridors, and classroom, but seemed inapt to cover the way in which the school provided education for the pupil. The FtT's decision was adequately reasoned. It was correct in saying that its task came down to deciding whether the provision for J fell on the right side of the line for issuing an EHC Plan. Under s.37 of the 2014 Act, a local authority or tribunal had to find that it was necessary for special educational provision to be made for a child before EHC Plan could be issued. ‘Necessary’ was not defined in the CFA 2014, nor was it defined under the Education Act 1996. What was ‘necessary’ was a matter to be deduced rather than defined. Its determination would vary according to the circumstances of a particular case and might well involve a considerable degree of judgment. The FtT's decision should be respected unless it was manifestly in error – here, its conclusion was open to it on the evidence. (24 August 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Government Policy
DCLG: Single departmental plan 2015-2020: DCLG has published its updated departmental plan setting out its priority objectives for 2015-2020. These are: Driving up housing supply; Increasing home ownership; Devolving powers and budgets to boost local growth in England; and Supporting strong communities with excellent public services. The updated plan gives the lead minister and official for each objective, following the recent changes in government. (2 September 2016)
HC Library: Brexit - impact across policy areas: this updated Commons Library briefing paper looks at the current situation in a range of policy areas and considers what impact Brexit might have. This will depend, among other things, on the Brexit negotiations, whether the UK stays in the European Economic Area and how the Government fills any policy gaps left by withdrawal. The policy areas covered include employment, environment, energy, health and education. (26 August 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Leisure & Recreation
Heritage Lottery Fund: State of UK public parks: this second State of the UK Public Parks report shows that there is a growing deficit between the rising use of parks and the declining resources that are available to manage them. The findings show that while parks are highly valued by the public and usage is increasing, park maintenance budgets and staffing levels are being cut. Without urgent action the continuing downward trend in the condition of many of parks and green spaces is set to continue. Whilst new ways of working and generating income are showing potential, more support, shared learning and collaboration is needed to support those that manage public parks. The report calls for collaborative action to deliver new ways of funding and managing public parks to avert a crisis. (7 September 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Maladministration
LGO: Shortcomings in partnership between London councils leaves victim of domestic abuse in limbo: an LGO investigation has found a lack of effective partnership working between two West London authorities when supporting a woman at risk of domestic violence. To remedy the complaint, Brent council will apologise to the woman, and will also provide refresher training. It has also agreed to review the liaison and joint working arrangements between its Housing Needs service and Brent Housing Partnership, when the victim is a council tenant. The council has agreed to pay the woman £750 for the distress and anxiety caused by its delays and insensitive handling of her housing needs and a further £250 to her representative who has supported her through her complaint. Ealing council will also apologise to the woman and will arrange for a designated officer to act as a central point to log and monitor the progress of all referrals made under the reciprocal scheme and report to the head of service. (25 August 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Officers
Law Commission: Reforming misconduct in public office: in January, the Law Commission published a background paper that set out the current law of misconduct in public office and highlighted problems that arise through areas of uncertainty, as well as gaps and overlaps with alternative offences. It is now seeking views on options for reform of the law of misconduct in public office, looking at whether the existing offence of misconduct in public office should be abolished, retained, restated or amended. The responses to the background paper clearly showed that it would be undesirable either to retain the existing offence or to attempt to codify it in statute so all the options in this consultation assume that the common law offence of misconduct in public office will be abolished. The consultation closes on 28 November 2016. (5 September 2016)
The Hillsborough Law: lawyers for the families of the 96 Hillsborough victims have published a draft Public Authorities Accountability Bill that codifies the public law duty of public authorities and public servants to tell the truth and act with candour. It would apply both generally and specifically to proceedings, inquiries and investigations. The draft Bill seeks to place a further duty on those in public office to cooperate positively with investigations, and would make it illegal for those in public service to give misleading information, with penalties and fines for those who are wilfully non-compliant. The draft Hillsborough Law will be considered by Bishop James' Review, which was commissioned by the then Home Secretary Theresa May following the jurors' conclusions on 26 April 2016, to consider what lessons could be learned from the disaster. (8 September 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes or Frances Woodhead.
Planning Policy
Neighbourhood Planning Bill: this Bill has been introduced into the Commons and received its 1st Reading. The Bill:
- strengthens neighbourhood planning by ensuring that planning decision‐makers take account of well‐advanced neighbourhood development plans and by giving neighbourhood development plans full legal effect at an earlier stage. It will introduce a proportionate process for modifying neighbourhood development orders and plans and facilitate the modification of neighbourhood areas where a neighbourhood development order or plan has already been made in relation to that area. The Bill also makes the duty on local planning authorities to support neighbourhood planning groups more transparent and improves community involvement in the early stages of plan‐making;
- provides that pre‐commencement planning conditions are only used by local planning authorities where they have the written agreement of the developer. The Bill also includes a power to allow the Secretary of State to make regulations which prescribe the circumstances where certain conditions may or may not be imposed and descriptions of such conditions for the purpose of ensuring that conditions meet national policy tests;
- allows the Secretary of State to require local planning authorities to record prior approvals for permitted development rights on the planning register, to enable the collection of information on the number of new homes permitted through permitted development; and
- makes further changes to the law on compulsory purchase by clarifying the statutory framework for compensation plus further technical changes, such as introducing a general power to obtain temporary possession of land and a requirement to bring compulsory purchase orders into operation within a set period of time.
(7 September 2016)
See also:
- Technical consultation on implementation of neighbourhood planning provisions in the Neighbourhood Planning Bill: seeks views on detailed regulations to implement the neighbourhood planning provisions. The consultation closes on 19 October 2016; and
- Improving the use of planning conditions: seeks views on measures in the Bill that address the inappropriate use of pre-commencement planning conditions, and prohibit the use of other types of planning conditions which do not meet the tests in the National Planning Policy Framework. The consultation closes on 2 November 2016.
Neighbourhood Planning (General) and Development Management Procedure (Amendment) Regulations 2016 (SI 2016/873): these regulations, which come into force on 1 October 2016, amend SI 2012/637 to make further provision in relation to the designation of neighbourhood areas and forums, the consideration of the recommendations of an examiner of a neighbourhood development order or plan proposal, intervention by the Secretary of State in that consideration, and the making of a neighbourhood development order or plan. They also amend SI 2015/595 to provide for neighbourhood forums to be notified of planning applications in their areas and to make representations on applications they are notified of. (7 September 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Procurement
Cabinet Office: Social Value Implementation and Measurement Project – Case studies: the Cabinet Office has published the first two case studies in a series from eight providers , in which they document their experience on how they applied social value in their projects. The case studies provide real accounts of what can be involved at the forefront of generating social value. They give a practical insight on embedding social value within procurement and serve as starting points for initiating new ideas and for sparking innovative thinking. (5 September 2016)
R (Faraday Development Ltd) v West Berkshire Council [2016] EWHC 2166 (Admin) (Admin Ct): FD applied for judicial review of the council's decision to enter into a development agreement with a developer, StM, to "facilitate the comprehensive regeneration" of an area of land which the council owned. The land was let out on long leases and there had been no investment in the estate for over 40 years. The Council's strategy for the site was to protect existing Council income generated by the site and also enhance income generation. It considered it to be in the Council's best interests that as far as possible it should retain ownership of the site as an asset generating income in the form of ground rents, with twin objectives to secure regeneration of this important part of the town and provide the Council with the opportunity to provide an enhanced ground rent income and either capital receipts or additional investment income. It issued an Opportunity Document inviting a selected number of experienced developers to submit proposals and to demonstrate how to take forward the wider treatment of most or all of the relevant parts of the area. FD was a special purpose vehicle that had been incorporated in order to assemble land for redevelopment within the site. It made a bid in the Council's tender process for the regeneration of the site.
However, the Council accepted StM's bid on the basis that that developer had greater experience in delivering complex regeneration schemes and that it would best achieve the Council's twin objectives. FD argued that the Council had failed to have regard to and/or to comply with its duty under s.123 LGA 1972 to obtain the best consideration reasonably obtainable for the disposal of interests in its land and for the same reason it had made an impermissible grant of state aid to StM contrary to Art.107 TFEU. Also, the Council, in entering into the development agreement, had deliberately sought to avoid imposing any directly or indirectly enforceable obligation on StM to carry out or procure works on the site, so as to avoid the public procurement regime, on the basis that this would increase market interest in the development agreement. This was irrational because it was founded on a misunderstanding of the advice from its experts and on a fundamental misconception of the public procurement regime.
The court held, refusing the application, that:
- the policy of legislation such as s.123 was to ensure, so far as reasonably possible, that public assets were not sold at an undervalue, except with the Secretary of State's consent. The court was not entitled to substitute its own view on the facts and merits for that of the local authority. The court could only interfere if there was no material upon which the authority's decision could have been reached, or if in reaching that decision, the authority disregarded matters it ought to have taken into consideration, or if it took into account matters which were irrelevant, or if its decision was irrational. Here, the Council's response to the information it received was not irrational but was entirely sensible;
- the agreement was not a "public works contract". StM was free under the agreement to walk away, as it could choose not to come under an obligation to acquire and carry out works on any of the redevelopment land. The provision of services and land assembly did not represent a main purpose in themselves, but simply facilitated the Council's twin regeneration and financial objectives. The Council had lawfully decided that the development itself should not impose upon the developer an enforceable obligation to carry out the redevelopment;
- the Council was not obliged to compare the pros and cons of proceeding inside or outside the procurement regime. Having taken into account the long term uncertainties and risks of the project, it was perfectly rational for the Council to accept the advice it had been given. That was entirely a matter for the judgment of the Council, with which the court was not entitled to interfere.
(26 August 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
HC Health Committee: Public health post-2013: this report is the result of a short inquiry on the impact of the Health and Social Care Act reforms on the public health landscape. It warns of risks of widening health inequalities and a false economy due to cuts in local authority and public health budgets. It calls for a Cabinet Office minister to be given specific responsibility for embedding health across all areas of government policy at a national level and for greater and bolder action to tackle public health issues such as childhood obesity. It also urges the Government to make good on its commitment to health in all policies by enshrining health as a material consideration in planning and licensing law. (1 September 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Traffic and Transport
DfT: Community transport minibus fund: announces the launch of the second round of the £25m fund that supports the community transport sector in providing vital services to communities which may not be serviced by a commercial bus service. The deadline for bids is 2 December 2016. (8 September 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
