Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More24/10/2016
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
Poole BC v Information Commissioner [2016] UKFTT 2016/0074 (FtT GRC): the Council appealed against the Commissioner's decision notice requiring disclosure of information relating to payroll and pension services provided by the Council to schools. The Council had responded to an FOI request disclosing a list of schools, but did not provide the charges made at each school and the services rendered, arguing that the information was exempt under s.43(2) FOIA 2000 because it would be likely to prejudice the Council’s commercial interests. The Commissioner ordered disclosure of the information on the basis that s.43(2) was engaged but that the public interest test favoured disclosure.
The Tribunal held, allowing the Council's appeal, that most cases relating to the s.43(2) commercial interests exemption arose from circumstances in which the public authorities were the commissioners of services. This appeal was strikingly different as here the Council was acting in the competitive market for the provision of services to others. The commercial interests at play were therefore those of the Council itself, acting in a competitive market. On the evidence, here there was regular competition in the provision of payroll and pension services to academies and other public bodies. Pursuant to this regular competition, the Council’s competitors could use the withheld information to gain an advantage and undercut them in tenders and this would make it more difficult for the Council to secure contracts. The commercially sensitive nature of the withheld information was supported by the three emails and the fact that the information was sought by a competitor, demonstrating that it did have commercial significance. The Commissioner had not given adequate weight to the likely prejudice to the Council’s commercial interests. He had not been aware that most of the competitors were from the private sector but had been under the mistaken impression that the majority of the other providers were other local authorities. Nor had he given adequate weight to the impact of the loss of this source of income on the Council’s wider services. When weighing the factors favouring disclosure against those favouring non-disclosure, the cumulative weight of the factors favouring non-disclosure outweighed the weight of those favouring disclosure. As such the Council was entitled to rely upon s.43(2). (13 October 2016)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Asset Management
Cabinet Office: More than 150 councils join the One Public Estate Programme: announces that £7.5m has been awarded to 37 partnerships made up of councils and public sector bodies to support collaborative working on land and property initiatives leading to new jobs, new homes and joined up public services. There is also a list of councils on the programme. (11 October 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Bribery and Corruption
Criminal Finances Bill 2016-17: this Bill has been introduced into the Commons and received its 1st Reading. It strengthens the powers and capabilities of law enforcement agencies and partners to recover the proceeds of crime, tackle money laundering and corruption, and counter terrorist financing. It introduces a new criminal offence for corporations who fail to stop their staff facilitating tax evasion, following the ‘failure to prevent’ model in the Bribery Act, and it will improve the ability of law enforcement agencies and courts to recover criminal assets more effectively through the use of Unexplained Wealth Orders (which will force those suspected of serious crime to explain where their wealth has come from, or risk having it seized), disclosure orders and seizure and forfeiture powers. It also enables firms in the regulated sector to share information directly with one another, with immunity from civil liability. (13 October 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Byelaws
DCLG: Revocation model byelaw: local authorities can look to revoke byelaws which have become spent, obsolete or unnecessary, or to have been substantially superseded by any enactment or instrument which applies to the area, persons or things to which or to whom the provision applies. DCLG recommends that local councils regularly review their existing byelaws to ensure that byelaws remain relevant to their area. This model revocation byelaw should be used where a local authority is seeking to revoke a byelaw under Part 4 of The Byelaws (Alternative Procedure) Regulations (England) 2016. There are also guidance notes on using the model byelaw. (23 October 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Children's Services
DCLG: National Evaluation of the Troubled Families Programme: DCLG launched the £448m Phase One Troubled Families Programme (TFP) in April 2012, with the aim of ‘turning around’ the lives of 120,000 families with multiple and complex needs in England. This evaluation assesses how the TFP has made a difference to the lives of families, both in terms of outcomes and experience of services; looks at how the TFP has changed local delivery approaches; estimates the impact of the programme on a range of intended outcomes; and measures success in terms of monetary savings. It finds that the programme clearly raised the profile of family intervention country-wide, and transformed the way services were being developed for families in many areas. However, these achievements did not translate into the range and size of impacts that might have been anticipated, based on the original aspirations for the programme.
See also:
• Process evaluation final report
• Overview of the first Troubled Families Programme
• Local authority data on the cost and potential fiscal benefits of the Troubled Families Programme
(15 October 2016)
NAO: Children in need of help or protection: this report concludes that actions taken by the DfE since 2010 to improve the quality of help and protection services delivered by local authorities for children have not yet resulted in services being of good enough quality. It found that nationally, the quality of help and protection for children is unsatisfactory and inconsistent, suggesting systemic rather than just local failure. The DfE’s interventions to improve failed local services for children are neither risk-based nor early enough. It only intervenes when Ofsted has already found services to have failed local children. It does not plan to use performance information to anticipate risks of failure. Neither the DfE nor the 23% of authorities rated Good yet have the capacity and capability to intervene effectively on a wider scale. The DfE faces significant challenges in transforming children’s services, not least how to integrate this with a concurrent transformation of its wider operations by the end of 2017. It is critical that the Department learns from good practice and mistakes elsewhere in government. (12 October 2016)
DfE: Statutory direction to London Borough of Bromley in relation to children’s services under Section 497a(4b) of the Education Act 1996: this Direction requires the Council to take steps to improve its children’s social care services. It follows a report by Ofsted which judged the overall effectiveness of children’s services in the London borough to be inadequate. An independent report by the former Commissioner for Children’s Services in Bromley has recommended that progress in children’s services should be monitored by a commissioner, and a review of progress should take place in 6 months’ time. The Direction replaces the earlier statutory Direction issued to the council in June 2016. (10 October 2016)
NICE: Nice guideline NG55 – Harmful sexual behaviour among children and young people: this guideline covers children and young people who display harmful sexual behaviour, including those on remand or serving community or custodial sentences. It aims to ensure these problems don’t escalate and possibly lead to them being charged with a sexual offence. It also aims to ensure no-one is unnecessarily referred to specialist services. (14 October 2016)
R (A) v Oxfordshire CC [2016] EWHC 2419 (Admin) (Admin Ct): A applied for judicial review of the Council's Cabinet's decision to approve a plan to cut funding in respect of children's centres for 2017/2018. The Council's Medium Term Financial Plan (MTFP) for 2015 planned that £6m less per year would be spent on children's services after the end of the 2017/18 financial year. This was to be achieved in three stages. The Director of Children's Services later proposed an additional £2m savings. The Council consulted on a proposal to achieve this £8m reduction by replacing its 44 children's centres with eight centres that focused on "needy children". In January 2016 the Cabinet made recommendations to Council as to the Budget and MTFP 2016. However, the full Council decided to depart from what was proposed in the MTFP and also declined to adjust the MTFP to incorporate the additional £2m savings. It set the Budget for 2016/17 to show a lesser reduction than had been anticipated a year before, but a commensurately greater reduction in 2017/18. The Cabinet then revised its plans to accommodate these changes. A applied to quash this decision, contending that the Cabinet had erroneously proceeded on the basis that the £6m budget cut contemplated by the MTFP was a given. It had unlawfully failed to comply with s.5D of the Childcare Act 2006, and did not discharge the Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010; rather than assess the need for children's centres the Cabinet had assessed what should be provided within an assumed budgetary constraint. If, alternatively, the Council's approval of the MTFP meant that the £6m cut was a firm decision then that decision was unlawful because it was reached without lawful compliance with the s.5D consultation obligation and discharge of the PSED, and without being informed by a lawful assessment of need.
The court held, refusing the application, that the Cabinet and full Council had considered the impact of funding cuts on a number of its services, including children's centres. The Cabinet had not regarded the Budget as set in stone, and the Budget itself was reached in circumstances in which the PSED was considered in substance and with rigour by the Council when setting the Budget. Full Council, when exercising the broad function of setting a budget rather than determining the precise form that the provision of children's centres was to take, did pay due regard to the PSED and the Cabinet had considered the responses to consultation, and the needs of children and families, properly and lawfully before reaching its decision as to the nature of services to be delivered. (7 October 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Economic Development
DCLG: Accounting Officer accountability system statement for the Local Growth Fund: sets out the specific accountability structures and processes through which value for money is assured on this funding programme. (11 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Education
DfE: The constitution of governing bodies of maintained schools: this statutory guidance for governing bodies and local authorities sets out the arrangements for the constitution of governing bodies of all local authority maintained schools, under the School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034). (7 October 2016)
Draft Coasting Schools Regulations 2016: the Education and Adoption Act 2016 allows the Secretary of State to identify coasting schools for the first time. These are schools where, over time, pupils are not fulfilling their potential. These regulations, once in force, define the concept of “coasting” for the purposes of s.60B of the Education and Inspections Act 2006 and s.2B of the Academies Act 2010. They apply to all maintained schools and Academy schools providing Key Stage 2 and Key Stage 4 education except those listed in reg.3. A primary school will be a coasting school if it meets the coasting criteria for the most recent three successive school years. These criteria are based on the same school performance measures (i.e. attainment and progress) used to set standards in order to hold schools to account (also referred to as “floor standards” for primary schools). (20 October 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Emergency Planning
Cabinet Office: Human aspects in emergency management – Guidance on supporting individuals affected by emergencies: updated guidance to support local practitioners planning and co-ordinating frontline activities to address the needs of people affected by emergencies, the provision of psychological and social aftercare and support in the short, medium and long term. (7 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Energy
DBEIS: Heat Networks Investment Project: DBEIS has launched the Heat Networks Investment Project (HNIP) that will provide £320m of capital support to increase the volume of heat networks being built, deliver carbon savings, and help create the conditions necessary for a self-sustaining heat network market to develop. This initial part of the funding, worth up to £39m, will be open to local authorities and public sector bodies who will submit applications for their projects by the end of November to gain funding. (17 October 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Environmental Services
DEFRA: Implementation of Clean Air Zones in England: seeks views on the implementation of Clean Air Zones in England – areas where action is focused to improve air quality and the cleanest vehicles are encouraged. The national air quality plan for nitrogen dioxide (NO2) published in December 2015 committed that Government would set out a Framework for Clean Air Zones including the important principles that need to be consistent in their operation and the key outcomes they are expected to deliver. The consultation closes on 9 December 2016. (13 October 2016)
Keep Britain Tidy: Reaching the tipping point – Action plan for fly-tipping: KBT has launched an action plan to tackle the blight of fly-tipping, with the target of reducing the number of recorded fly-tipping incidents by 50% by 2020. The action plan outline the actions it will undertake, with support from Government, local authorities, waste management companies and the legal profession, to raise awareness with the public and businesses about their legal duty of care. (20 October 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
European Union
IPPR: Brexit North – Securing a united voice at the negotiating table: this paper considers both the implications of Brexit for the North of England, and a process by which the North can ensure that its needs are recognised within a national negotiation. It argues for a Northern Brexit Negotiating Committee to consider and advocate for the type of Brexit that the north of England needs, and discusses the pressing issues and questions that this committee will need to address. (1 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Finance
LGA: Growth and opportunity for all: Local solutions to national challenges – The LGA’s submission to the Autumn Statement 2016: this submission sets out how the LGA considers that the Autumn Statement can draw on the unique strengths of local government to achieve a ‘society that works for everyone’ by pursuing three broad objectives:
• Creating the conditions for change: maintaining momentum on devolution and putting councils on a sustainable footing
• Deliver opportunities for all: ensuring national and local government work together to develop the infrastructure – housing, transport, digital connectivity and skills and employment services – required to ensure each area of the country can contribute to, and benefit from, economic growth
• Support everyone to contribute and benefit: supporting other vital local government services that allow councils to continue taking care of their communities.
(10 October 2016)
Welsh Government: Amendments to council tax legislation to reflect the introduction of premiums on long-term empty homes and second homes: the Housing Act (Wales) 2014 gives local authorities powers to charge a council tax premium on long-term empty homes and second homes in their areas from 1 April 2017. This paper seeks views on technical amendments to existing council tax legislation to enable local authorities to administer the council tax premiums. The consultation closes on 1 December 2016. (9 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes or Frances Woodhead.
Governance
DCLG: Government Response to the Communities and Local Government Select Committee report: – Government Interventions: the use of Commissioners in Rotherham Metropolitan Borough Council and the London Borough of Tower Hamlets: sets out the Government's response to the Committee's August 2016 report that examined the interventions in Rotherham MBC and Tower Hamlets LBC, and looked more broadly at how DCLG monitors local authorities, how it made decisions on whether to intervene, and the form of any intervention. The Government agrees that interventions should only occur where there are very severe failings that where intervention does need to occur that this should be conducted in as swift and effective manner as possible. It has already taken steps, and will continue to do so, to ensure that lessons are learnt from the interventions in Tower Hamlets and Rotherham. The response replies to each of the Committee's 14 points of conclusion or recommendation.
The Secretary of State is proposing a revised intervention package for Rotherham which would return the licensing function to the council. (20 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Safety
HSE: Risk assessment – A brief guide to controlling risks in the workplace: seeks views on proposed changes to risk assessment guidance. The updated version puts more emphasis on controlling risk and less on written assessments, without reducing standards. It also makes it very clear that risk assessment should be part of day-to-day business management. (7 October 2016)
HSE: Council fined after employee was injured from fall: Hull Magistrates' Court has fined East Riding of Yorkshire Council £40,000 and ordered it to pay costs of £664.00 after the Council pleaded guilty to breaching s.2(1) of the Health and Safety at Work, etc Act 1974. The prosecution arose after a council employee fell from a ladder while descending from a porch roof which was being re-felted, suffering two broken vertebrae. An HSE investigation found that the ladder was not tied and there was no edge protection in place for the porch roof. The task had not been risk assessed and decisions regarding safety and equipment had been left to the workers. (7 October 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Health and Social Care
Social Enterprise UK: The Social Value difference in health and care commissioning: this short report details the difference social value can make in health and care commissioning, and shares learning for other commissioning authorities to make the most of social value. It presents the initial findings from SEUK's Health and Social Value Programme, a three-year programme bringing together local CCGs, local authorities, Health and Wellbeing Boards and VCSE organisations in 12 areas across England.
There is also a 12 step approach for commissioners looking to make the most of social value. (14 October 2016)
LGA: LGA and ADASS on expectations for the continuation of BCF fund from 2017: the LGA and ADASS support the intentions of the Better Care Fund (BCF) to drive local integration of health and social care through the transfer of NHS resource to local authorities to protect vital adult social care services. This statement lists how they expect the BCF to be significantly improved from 2017. (14 October 2016)
CQC: The state of the adult social care sector and workforce in England, 2016: presents a comprehensive overview of the adult social care sector, which continues to grow and employs an estimated 1.55m jobs. (13 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
DCLG: Homelessness Prevention Programme: the Government has announced a new £40m programme to provide an innovative approach to tackling homelessness. It includes: £20m Trailblazers funding over three years for local authorities to pilot new initiatives to tackle homelessness in their area; £10m Rough Sleeping grant funding to local authorities over 3 years (2016/17, 2017/18 and 2018/19) for targeted support for those at imminent risk of sleeping rough or those new to the streets; and £10m Rough Sleeping Social Impact Bonds to help long-term rough sleepers with the most complex needs. Local authorities will be able to bid for an allocation of the funding to use to commission a Social Impact Bond within a geographic area. The closing date for bids is 28 November 2016. (17 October 2016)
DCLG: Houses in multiple occupation and residential property licensing reforms: seeks views on proposals to strengthen councils' powers to tackle overcrowded housing by extending mandatory licensing rules to all shared homes with five or more people. Other proposals include a national minimum bedroom size, adequate waste disposal facilities and a tougher fit & proper person test. (18 October 2016)
HC Communities and Local Government Committee: The draft Homelessness Reduction Bill: this report considers the Homelessness Reduction Bill, a Private Member’s Bill that was introduced into the Commons by Bob Blackman MP in June. The legislation is aimed at reducing homelessness by ensuring that vulnerable people receive consistently high levels of service from local housing authorities across the country. The Committee supports the Bill and makes recommendations to help it better achieve its aims. (14 October 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Scrutiny
CfPS: Education accountability – Time for a new role for council scrutiny?: discusses whether there should be an enhanced role for councils in the future of education scrutiny. (5 October 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Shared Services
HC Public Accounts Committee: Shared service centres: this report finds that ongoing failures of leadership and governance must be addressed urgently if shared service centres are to deliver expected savings to the public purse. It concludes that, four years after the previous Committee examined the Cabinet Office's attempts to cut costs by sharing back-office functions, "the Government's latest attempts are failing for much the same reasons". These include: a failure of governance and leadership by the Cabinet Office; departments acting independently rather than collaboratively; the absence of a realistic business case; a failure in the management of the transfer of risk to suppliers and a failure to develop standardised processes. (19 October 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Tortious Liability
Sutton LBC v Edwards [2016] EWCA Civ 1005 (CA): the Council appealed against a decision that it was primarily liable for breach of the common duty of care arising under the Occupiers' Liability Act 1957 in respect of serious injury sustained by E when he fell from a small ornamental footbridge in a public park onto rocks in the water below. The bridge was over 100 years old and had a low parapet. E fell over the parapet into the water, with his bicycle, and suffered a spinal cord injury, rendering him paraplegic and wheelchair dependent. The cause of the fall was not established. E argued that the Council had failed to take reasonable care to see that he as a visitor to the park was safe in using the bridge for a permitted purpose. He argued that: the Council ought to have provided side protection barriers to the bridge; it had failed to warn visitors to the park of the dangers posed by the bridge; and it had failed to carry out any adequate risk assessments in respect of the bridge. The judge found that the risk of a fall ought to have been identified and assessed, and that the Council should have warned users of the low parapet. He found that the Council was liable to E for the injury sustained; however, E had been contributorily negligent to the extent of 40%. The Council appealed, contending that there was no relevant "danger" and that there was no duty to warn of the obvious.
The court held, allowing the Council's appeal, that both s.1 of the 1957 Act and s.1(1) of the Occupiers' Liability Act 1984 regulated the different duties imposed on an occupier, in respect of visitors and others, "in respect of dangers/by reason of any danger due to the state of the premises or things done or omitted to be done on them". It was hard to see how E's activity, of walking with his bicycle over this bridge, constituted a danger for these purposes and the failure to provide guard rails added nothing at all to whatever might be derived as a danger arising from the "state of the premises". There were two well-recognised principles of law: the proper treatment of the concept of risk; and secondly, occupiers of land were not under a duty to protect, or even to warn, against obvious dangers. Allied with the issue of foreseeability of likelihood risk was the balance of risk, gravity of injury, cost and social value. There was a duty to warn if, without a warning, the visitor in question would have been unaware of the nature and extent of the risk; but if the danger was obvious, the visitor was able to appreciate it, he was not under any kind of pressure and he was free to do what was necessary for his own safety, then no warning was required. A formal assessment would not have produced anything beyond a statement of the obvious; it would not have led to steps being taken that would have prevented or lessened the possibility of E's accident occurring. Nor was there a requirement to provide this bridge with side barriers - such additions would have altered the character of the bridge significantly and to an extent out of proportion to a remote risk which had never materialised in its known history. E had suffered injury which could evoke nothing but the most enormous sympathy; however, not every accident (even if it had serious consequences) had to have been the fault of another; and an occupier was not an insurer against injuries sustained on his premises. The standard had been set too high by the judge below. (12 October 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Transport
DfT: Bus Services Bill – Draft guidance and policy statement: comments on the key issues raised during Lords Committee debates on the Bill in June and July 2016. This includes draft guidance which addresses issues that peers felt should be clarified or incorporated into the Bus Service Bill or associated guidance and gives a general approach to policy issues, along with a policy statement that explains the Government’s rationale for automatic access to franchising powers for mayoral combined authorities. (12 October 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
