Who holds the Duty of Care?
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Read More08/11/2016
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
LGA: Adult social care funding – 2016 state of the nation report: this review concludes that a lack of recognition in terms of profile has combined with a lack of recognition in terms of funding to place the care and support system under enormous pressure. This has been particularly acute since 2010 and although governments of the day have responded with their own well-intentioned solutions, they have failed to properly resolve the gap between available resources on the one hand and cost, demand and pressures on the other. The LGA estimates that, taking account of the path of future funding and the full range of pressures facing councils in relation to future years compared to now, local government faces an overall funding gap of £5.8bn by 2019/20. (2 November 2016)
LGA: Don't be left in the dark – Adult social care: simple overview for councillors and the public on local authorities' adult social care services and how eligibility assessment works. (27 October 2016)
DCLG: New £20 million fund now open to help victims of domestic abuse: invites local authorities to bid for a share of the £20m Domestic Abuse Fund to support victims of domestic abuse. Details are in the prospectus '2016/18 Fund for specialist accommodation based support and service reform', which also contains new Priorities for Domestic Abuse Service, setting out how local authorities should be responding to domestic abuse in a collaborative and effective way. (3 November 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Allotments
R (Moore) v Watford BC; National Allotment Society (Interested Party) [2016] EWHC 2736 (Admin) (Admin Ct): M applied for judicial review of the Secretary of State's (SoS) decision to grant consent to the Council under s.8 of the Allotments Act 1925 and applying the Allotment Disposal Guidance 2014, for the appropriation of allotment for use as part of a health campus redevelopment scheme. Two previous challenges to decisions by previous SoSs had been upheld; the Council then made a third application for consent to the new SoS. He granted consent, finding that there were exceptional circumstances in the public interest to allow the use of the allotment land to be developed as part of the scheme and that their use to support the regeneration initiative with its significant benefits to the population of Watford outweighed the benefits of the site remaining as statutory allotment land. M contended that the SoS had erred in law in concluding that there were exceptional circumstances which justified the grant of consent to the appropriation of the allotments.
The court held, dismissing the claim, that the guidance did not purport to define or elaborate upon what might or might not amount to "exceptional circumstances" – the correct interpretation of the guidance was that the SoS would exercise his discretionary judgment as to whether or not "exceptional circumstances" existed, on the individual facts of each application which came before him. Here. the SoS was entitled to reach the conclusions which he did, exercising his discretionary judgment within the statutory and policy framework, which was correctly applied. He took into account all relevant considerations, did not take into account any irrelevant considerations, and his conclusions were rational. The SoS was correct to hold that the interference with the rights of the allotment holders was justified and proportionate because of the wider public benefits to be gained by incorporation of the allotments into the scheme. Given the allocation of new allotments nearby, the assistance to re-locate, and financial compensation to the allotment holders, a fair balance had been struck. (2 November 2016)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Children's Services
DfE: Power to test different ways of working – Policy statement: the Children and Social Work Bill was introduced into the Lords in May. Clauses 29-31 set out a new power to allow local authorities to apply for exemptions or modifications to children’s social care legislation to enable them to test new ways of working. This briefing note from the Chief Social Worker for Children and Families provides further information about why the power to innovate is needed, detail of how applications will be considered and examples of how it could be used. (14 October 2016)
DfE: Government's proposals for a new regulator for social workers: announces proposed changes to Part 2 of the Children and Social Work Bill, covering the establishment of a bespoke social work regulator. The changes will establish a new separate legal entity, Social Work England, as regulator of social workers. (3 November 2016)
Demos: Commissioning in children’s services – What works?: this think-tank report identifies the critical success factors for outsourcing in children’s services. It is critical of local authorities’ "opaque and often ideological" resistance to outsourcing children’s services which can be counter-productive to improving outcomes for young people. Outsourcing is often viewed with suspicion, particularly if it is achieved through for-profit providers, but does have the potential to help local authorities deal with pressures and secure better outcomes. The report highlights the pressing need for a proactive and constructive partnership between local authorities and providers of children’s services at a time of stretched budgets and growing demand. (19 October 2016)
DfE: 30 hour free childcare entitlement – delivery model: sets out the Government's response to the April 2016 consultation on how to provide an extended entitlement of up to 30 hours' free childcare for working parents of 3- and 4-year-olds. The Government will now lay before Parliament the draft regulations which set out the legal framework for the delivery of the extended entitlement. It will also issue statutory guidance in early 2017. Prior to that, it will hold further informal consultation with local authorities and providers that will discuss issues such as the length of the grace period and the content of the model agreement. (5 November 2016)
DfE: Education Secretary announces extra investment in social care: the Education Secretary Justine Greening has given a speech to the social care profession in which she sets out her vision for giving vulnerable children the best possible chance of a successful future. This included the announcement of an additional £4.7m investment in the teaching partnership programme, aimed at improving the education and training of social workers in 11 new areas across the country. She also invited local authorities to nominate talented senior social workers to join the new Practice Leader Development programme. (3 November 2016)
DfE: Safeguarding unaccompanied asylum-seeking and refugee children: the Minister for Vulnerable Children and Families, Edward Timpson, has issued a Written Statement to Parliament announcing that the Government will publish a safeguarding strategy for unaccompanied asylum-seeking and refugee children, by 1 May 2017. The strategy will set out further detail on how these children should be safeguarded and their welfare promoted. It will complement and build on existing safeguarding guidance and procedures, in recognition of the increased numbers and specific needs of unaccompanied asylum-seeking and refugee children already in the UK, unaccompanied children who are transferred to the UK from Europe, and unaccompanied children who we resettle directly from outside Europe. It will also set out the practical steps the Government will take to implement this plan. (1 November 2016)
Welsh Government: Investigations into deaths of children in secure accommodation: seeks views on proposed amendments to the Children’s Homes (Wales) Regulations 2002 (SI 2002/327 (W.40)). The changes will aid investigations by the Prisons and Probation Ombudsman (PPO) into the death of a child in a secure children’s home in Wales. The consultation closes on 16 December 2016. (28 October 2016)
DfE: North London Children’s Efficiency Programme (NLCEP) residential innovation project – Partnership evaluation: sets out the findings from an evaluation of the NLCEP residential innovation project, which involved a collaboration between five boroughs in North London that worked in partnership to allow young people entering care to remain in the local area instead of being placed far away from home. The report explores 10 themes essential in partnership working. (3 November 2016)
DfE: Supporting long-term foster care placements in the independent sector – Research report: sets out the findings of research into the effectiveness of using independent fostering providers to arrange long-term foster care placements. It evaluates Match Foster Care's performance in providing foster care placements as well as support for foster children and their families. (3 November 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Commons and Village Greens
R (Allaway) v Oxfordshire CC [2016] EWHC 2677 (Admin) (Admin Ct): A and others applied for judicial review of the Council's decision to register an agricultural field of about 14 acres as a town and village green under s.15(2) of the Commons Act 2006. They contended that the inspector had applied an inappropriate discount for use of the perimeter paths and had failed to properly consider and apply the qualifying requirement that the use needed to be by a significant number of those in the locality.
The court held, dismissing the application, that this was a classic example of recreation and low-level agriculture existing happily side by side. The inspector was well aware that if the walking use was such as to indicate an emergent right of way or use of an actual right of way that he had to discount it and he did so; he did not accept the objectors' submission that use of the paths should be excluded altogether. Reading the reports as a whole and fairly, it was clear that the inspector discounted those either using the public footpath or using the paths as part of a route from one point outside the land to another. Section 15 referred to "a significant number of inhabitants of any locality" with no further statutory stipulation. If it was to have been intended by Parliament that the significant number related to inhabitants across the locality then words could have easily been inserted to that effect. What the statutory wording required was that there were a significant number of the inhabitants of any locality or any neighbourhood who had indulged as of right in lawful sports and pastimes on the land. There was no basis in the statutory wording for there to be a spread of users across the locality. (27 October 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Communities
LGA: Community action in local government – A guide for councillors and strategic leaders: the LGA defines community action as 'any activity that increases the understanding, engagement and empowerment of communities in the design and delivery of local services', which can include community consultation, joint planning, joint design, joint delivery and community-led services. This guide helps councils research, plan and instigate opportunities for community action projects. (18 October 2016)
Cabinet Office: Community resilience framework for practitioners: guidance on how to carry out assessments of communities in the area to support building resilience to emergencies and disasters. (26 October 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Constitutional and Administrative Law
R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (Admin Ct): the sole issue in this case was whether, as a matter of the constitutional law of the UK, the executive Government was entitled to use the Crown's prerogative powers to give notice of withdrawal from the EU under Art.50 TEU.
The court held, granting M's application for judicial review, that the Secretary of State did not have power under the Crown's prerogative to give notice pursuant to Art.50 TEU for the UK to withdraw from the EU. In making its decision, the court was only dealing with a pure question of law, and its decision had no bearing on the question of the merits or demerits of a withdrawal nor did it have any bearing on government policy. The court was not in any way concerned with the use that might be made of the Crown's prerogative power, if such a power could as a matter of law be used in respect of Art.50, or what would follow if the Crown's prerogative powers could not be so used.
The most fundamental rule of UK constitutional law was that the Crown in Parliament was sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament was supreme. An important aspect of the fundamental principle of Parliamentary sovereignty was that primary legislation was not subject to displacement by the Crown through the exercise of its prerogative powers. The Crown had only those prerogative powers recognised by the common law and their exercise only produced legal effects within boundaries so recognised; outside those boundaries the Crown had no power to alter the law of the land. The Crown could not, in ordinary circumstances, alter domestic law by using its prerogative powers to make or unmake a treaty. The Royal Prerogative, whilst it embraced the making of treaties, did not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoyed in domestic law without the intervention of Parliament. While treaties could have certain indirect interpretive effects in relation to domestic law, this did not affect the basic position that the Crown could not through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.
The clear and necessary implication from the provisions of the European Communities Act 1972 was that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers. The European Communities Act 1972 conferred no authority on the Crown, whether expressly or by necessary implication, to change domestic law and nullify rights under the law. In the absence of such authority from the 1972 Act or other statutes, the Crown could not through the exercise of its prerogative powers alter the domestic law of the UK and modify rights acquired in domestic law under the ECA 1972 or the other legal effects of that Act.
The Referendum Act 2015 should be interpreted in light of the basic UK constitutional principles of parliamentary sovereignty and representative parliamentary democracy, namely that a referendum on any topic could only be advisory for the lawmakers in Parliament unless very clear language to the contrary was used in the referendum legislation in question. No such language is used in the 2015 Referendum Act. Further, the 2015 Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the EU would inevitably leave for future decision many important questions relating to the legal implementation of such withdrawal.
The court also distinguished and cast doubt on the NIQB decision in Re McCord (see below). (3 November 2016)
Re McCord (Judicial Review) [2016] NIQB 85: McC and others applied for judicial review of the Government's intention to use the Royal Prerogative to invoke Art.50 TEU to trigger the process by which the UK's withdrawal from the EU was effected. McC contended that the prerogative power could not be exercised for the purpose of notification in accordance with Art.50(2) TEU because it had been displaced by the Northern Ireland Act 1998 read along with the Belfast Agreement and the British-Irish Agreement and other constitutional provisions. It was also asserted that the Good Friday Agreement had created a substantive legitimate expectation that there would be no change in the constitutional status of Northern Ireland without the consent of the people of Northern Ireland.
The court held, refusing the application, that the limits to the competence of the Assembly and Executive found in the 1998 Act were simply a function of the substantive content of EU at a given point in time as given effect to by legislation. Triggering Art.50(2) had no direct impact on this situation – UK citizens would continue to enjoy whatever rights Parliament provided for from time to time, whether their origin derived from the EU or another source. Moreover, there was nothing in any of the agreements preceding the 1998 Act which involved any guarantee of continued membership of the EC or which stipulated any requirement about how leaving the EU, if that became a policy goal, would be effected. There was no specific provision in the Good Friday Agreement or in the 1998 Act which confirmed the existence of the limitation which the applicant contended for and which established a norm that any change to the constitutional arrangements for the government of Northern Ireland and, in particular, withdrawal by the UK from the EU, could only be effected with the consent of the people of Northern Ireland; nor could any such limitation be implied. The UK Parliament had retained to itself the ability to legislate for Northern Ireland without the need to resort to any special procedure, save in so far as that might be required for the purpose of s.1 of the 1998 Act. Any suggestion that a legitimate expectation could overwhelm the structure of the legislative scheme was not viable. There were differing views about the extent to which the doctrine of Parliamentary sovereignty might be reconciled with the rule of law, but this did not mean that a first level judge was free to disregard the doctrine or sweep it away. That task would fall to the highest court to do so. (28 October 2016)
Deloitte: The state of the State 2016-17: this report provides an independent analysis of the UK public sector through a business lens. Produced in collaboration with think tank, Reform, the insight is informed by interviews with public sector leaders, citizen research and an in-depth analysis of government data. The latest issue finds the UK Government moving from an era of challenge around one objective – eliminating the budget deficit – into an era of multiple and complex challenges. The next five years will see additional demands on the public sector as it manages the UK’s departure from the EU, continues to drive major reforms and maintains business as usual. (26 October 2016)
Institute for Government: Four-nation Brexit – How the UK and devolved governments should work together on leaving the EU: this paper argues that it is imperative that Scotland, Northern Ireland, Wales and England reach agreement on the UK’s Brexit terms and negotiating strategy. Imposing a Brexit settlement in the face of devolved opposition (while legally possible) would be a reckless strategy for a PM with a deep commitment to the Union. Scotland, Wales and Northern Ireland cannot be treated like any other lobby or interest group. Equally, the devolved governments will have to accept that Westminster will have the final say. (24 October 2016)
HL Constitution Committee: English votes for English laws: the committee was asked by the Leader of the House of Commons to review the constitutional implications of English votes for English laws (EVEL), which provides English MPs with a separate and distinct voice in the House of Commons on laws which affect only England. This report finds that attempting to provide a separate voice for England through the membership and institutions of the UK Parliament carries risks and could undermine Parliament’s position as a UK, rather than English, institution. It concludes that it is too soon to fully assess the impact of EVEL on the Union, and on Parliament’s role as the central representative chamber of the whole UK; it is also too early to judge whether the procedures are robust. It recommends that the EVEL procedures, if they are retained, should be subject to an extended trial period for the remainder of this Parliament (2 November 2016)
Cabinet Office: Technical review of the current English votes for English laws standing orders: the Government introduced English Votes for English Laws (EVEL) in October 2015 to address the "West Lothian Question", whereby English MPs cannot vote on matters which are dealt with in devolved legislation, but MPs with constituencies in Scotland, Wales and Northern Ireland can vote on those same matters when the UK Parliament is legislating solely for England. It has now launched a review of the EVEL process and is calling for suggestions on how the procedure and process for English votes for English laws could be improved. The closing date for comments is 2 December 2016. (26 October 2016)
HL Constitution Committee: Wales Bill: this report scrutinises the Wales Bill, which is currently before Parliament. The Bill seeks to implement those elements of the St David’s Day agreement that require legislative change and to introduce a clearer and more durable devolution settlement in Wales. The Bill would replace the current conferred powers model used by the National Assembly for Wales with a reserved powers model. The committee finds that the lack of clarity over the demarcation of powers between the UK Parliament and Welsh Assembly not only risks future litigation, but the need for further legislation to clarify the settlement. It points out that in some areas the list of reserved matters is so extensive, and the number of legal tests that must be met for the Assembly to use its powers are so vague, that the switch to a reserved powers model is likely to actually result in a return of power from the Welsh Assembly to Westminster. The Committee calls on the Government to explain whether the Wales Bill is actually intended to reduce the legislative competence of the Welsh Assembly in some area and, if not, what steps they plan to take to ensure that the competence of the Assembly is not inadvertently reduced. (28 October 2016)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Development Control and Planning
DCLG: Basement developments and the planning system: the Government is calling for evidence and examples of good practice in the effective use of the current planning framework in the context of managing basement developments. It seeks evidence on the number of basement developments being taken forward, how these developments are currently dealt with through the planning system and whether any adverse impacts of such developments could be further mitigated through the planning process. The closing date for submissions is 16 December 2016. (4 November 2016)
DCLG: Neighbourhood Planning Bill policy factsheets – Factsheet 1: Neighbourhood planning: the Neighbourhood Planning Bill introduces a streamlined procedure for modifying neighbourhood plans and areas. It also encourages more communities to take part in plan-making by requiring local planning authorities to set out their policy for meeting their existing duty to advise or assist neighbourhood planning groups and how they will involve communities in their wider plan-making functions. This factsheet provides further background information on the measures within the Bill. (25 October 2016)
R (Kebbell Developments Ltd) v Leeds City Council; Collingham with Linton Parish Council (Interested Party) [2016] EWHC 2664 (Admin) (Admin Ct): KD applied for judicial review of the City Council's decision to allow a Neighbourhood Plan (NP) to proceed to a local referendum. KD contended that the NP was unlawful because in it the parish council effectively stated that a site should not be developed. KD said that the parish council could not lawfully say that in the NP, because the City Council was the body that must decide that issue, and it had already designated the land as suitable for housing development in the future. The issue was whether the City Council was bound to submit the NP to a referendum, which turns on whether it was entitled to be "satisfied" that it was "appropriate" to adopt the NP, having regard to the policies stated in the NPPF and the PPG, and that making of the NP was in "general conformity with the strategic policies" in the Leeds Local Plan.
The court held, refusing the application, that the basic condition in para.8(2)(e) of Sch.4B to the Town and Country Planning Act 1990 only requires that the draft NP as a whole be in 'general conformity' with the strategic policies of the adopted development plan, so there was no need to consider whether there was a conflict or tension between one policy of a neighbourhood plan and one element of the local plan. KD had clearly demonstrated a degree of tension between the content of the LNP and the content of the Leeds Local Plan; however, that was not of itself sufficient to compel a finding of general discomformity between the two plans. While the NP in its final form included mention of the parish council's opposition to development of the site for housing, that did not mean that planning permission for future housing development of the site would necessarily have to be refused. It was open to the City Council to make the modifications which it made, and to profess itself satisfied that the basic conditions were met. Having reached that conclusion, it was bound to accept the NP and submit it to a referendum. (28 October 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Devolution and Structural Reorganisation
County Councils Network: CCN sets out evidence on potential local government reorganisation: highlights two independent studies that look into potential local government reorganisation in county areas. The first report, Learning the lessons from local government reorganisation produced by Shared Intelligence, explores the last two rounds of local government reorganisation in the 1990s and late 2000s. The second report by EY, Independent analysis of governance scenarios & public service reform in county areas, outlines the challenges and merits of each model against a broad set of criteria including financial efficiency, sustainability and public service reform. (3 November 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Economic Development
Resolution Foundation: City living – Devolution and the living standards challenge: this paper investigates living standards across Britain’s major city regions, focusing on the labour market and employment. (20 October 2016)
LGA: Learn lessons from the Work Programme and devolve power to councils: the LGA is urging the Government to learn the lessons from the Work Programme - the predecessor to the new Work and Health Programme (WHP) - and make the necessary changes to the WHP, due to start in 2018, so that it can better fulfil the Government's commitment to reduce the disability employment gap. It argues that disadvantaged jobseekers and people with disabilities and health conditions would be better supported into work if funding and responsibility for the WHP were devolved to all areas. (3 November 2016)
Mayor of London: A city for all Londoners: the Mayor of London is seeking views on his new vision for London, which outlines the capital’s top challenges and opportunities across priority policy areas, as well as the changes that City Hall wants to deliver over the next four years. The document sets out a direction for London, which the Mayor will later expand upon in detailed strategies, including: land use and growth (the London Plan); transport; housing; economic development; the environment; policing and crime; culture; and health inequalities. The closing date for comments is 11 December 2016. (24 October 2016)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
DfE: School attendance: revised non-statutory guidance on using pupil registers and attendance codes, and setting school hours and term dates. The guidance has been updated to reflect the 2016 amendments to the Education (Pupil Registration) (England) Regulations 2006. (2 November 2016)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Finance and Fraud
Cabinet Office: National Fraud Initiative report November 2016: the NFI matches electronic data within and between 1,300 organisations, including councils, to help to identify potentially fraudulent claims, errors and overpayments. Its latest report reveals that the NFI has helped trace almost £198m in fraud, errors and overpayments in England. The Cabinet Office minister Chris Skidmore has called on local councils, housing associations and the wider public sector to take action on the findings and save even more money. (4 November 2016)
Institute for Fiscal Studies: A time of revolution – British local government finance in the 2010s: this is the first report in a new multi-year IFS research programme examining how the local government finance system in England is undergoing genuinely revolutionary change. It provides an initial look at the changes in councils’ spending, funding and funding systems since 2010, and highlights some of the key issues for the planned shift to 100% retention of business rates revenues by councils in England. (26 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Social Care
DH: Care and support statutory guidance: the statutory guidance on Part 1 of the 2014 Act has been updated to clarify how s.75 of the NHS Act 2006 and the Care Act work together. (27 October 2016)
UK Homecare Association: The Homecare Deficit 2016 – A report on the funding of older people’s homecare across the United Kingdom: this report demonstrates the funding gap between what councils pay for homecare and the costs of services which must meet the National Living Wage. It reveals that the average price councils paid for homecare in the UK in April 2016 was just £14.58 per hour, compared to UKHCA's Minimum Price for Homecare of £16.70 per hour. It argues that the rates that so many councils are paying independent and voluntary homecare providers illustrate the root cause of instability of local homecare markets and unacceptably low pay and conditions of the homecare workforce supplying care through contracts with councils and Health and Social Care Trusts. (25 October 2016)
LGA: Helping people look after themselves – A guide on self-care: highlights challenges to self-care, with a lack of coordination between different services and a lack of continuity for the patient. The guide sets out how local authorities are a key partner for the health service in encouraging self-care, with case studies on how councils are involved in a range of innovative work to further embed the self-care agenda. (26 October 2016)
LGA: Transforming social care through the use of information and technology: this report highlights the emerging role of technology in transforming social care services and enabling care and health integration. It includes case studies of the introduction and use of technology to deliver improved outcomes for social care service users and, in the context of integration, patients. It also showcases the current and future roles of technology in facilitating demand management, delivering cost efficiencies, and mitigating against systemic risks. (2 November 2016)
London Councils: Taking integration of health and care forward: set out a list of "integration asks" to Government to help smooth the path towards further health and social care integration in London. The proposals include strengthening the role of Health and Wellbeing Boards so they can control CCG budget spending, seeking continued support for health devolution, bringing forward Better Care Fund budget allocations for 2018/19 and investing in the financial sustainability of adult social care. (17 October 2016)
If you wish to discuss any of the items noted in this section please contact David Owens.
Highways
LGA: Councils call for slice of existing fuel duty to combat road repairs backlog: the LGA is calling in its Autumn Statement submission for the Government to inject a further £1bn a year into roads maintenance, after new figures show it would now take 14 years just to clear the backlog of road repairs. It argues that this could be achieved by investing just 2p per litre of existing fuel duty. (29 October 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Housing
IPPR: Closer to home – Next steps in planning and devolution: this report argues that we need a new devolution deal on housing – one that empowers combined authorities to act on the housing opportunities, challenges and requirements of their specific areas. The report reviews the housing powers devolved, and successes achieved, thus far, and makes the case for a more ambitious devolution agenda capable of delivering on the housing needs of every locality across the country. (31 October 2016)
DCLG: Government to support new legislation to reduce homelessness: announces that the Government will support the Homelessness Reduction Bill, a Private Member's Bill that requires local authorities to provide new homelessness services to all those affected. It places a duty on local authorities to help eligible people at risk of homelessness to secure accommodation, 56 days before they are threatened with homelessness, and to provide those who find themselves homeless with support for a further period of 56 days to help to secure accommodation. The Bill also places a duty on public services to notify a local authority if they come into contact with someone they think may be homeless or at risk of becoming homeless.
See also the Commons Library briefing paper. (24 October 2016)
HC Public Accounts Committee: Progress with the disposal of public land for new homes: this report further examines the programme to "release enough public land to build as many as 100,000 new, much-needed, homes and support as many as 25,000 jobs by 2015". It recognises the progress made since it set out serious concerns in a Report on the previous Government's land disposals programme in September 2015. It welcomes DCLG's commitment to monitor homes built as a result of land sales, the guidance and monitoring arrangements it has put in place, and greater clarity on other departments' roles and responsibilities. However, it warns that there is still a long way to go to ensure Government departments will sell land with capacity for at least 160,000 new homes by 2020. It highlights the uncertainty over the potential for housing of many sights earmarked for sale in future, many of which are still being used to deliver public services. It also urges Government to make public all details of the programme. (2 November 2016)
Welsh Government: Carl Sargeant sets out plans to deliver 20,000 affordable homes: the Welsh Communities and Children Secretary has delivered an Oral Statement to the Welsh Assembly in which he set out how the Welsh Government plans to deliver its ambitious target of an additional 20,000 affordable homes. He confirms policy on retaining the existing social housing stock and the need to strengthen strong relationships with housing associations, local authorities and private house builders, and announces that the Welsh Government will be providing additional funding to support local authorities in developing their own building programmes. (2 November 2016)
Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034 (CA): the Court of Appeal has ruled that residential landlords must apply for the court's permission before being able to apply for an eviction warrant if a Suspended Possession Order is breached.
The Council issued ASB possession proceedings against L, its tenant. It then later obtained a suspended possession order (SPO) against L, with the right to possession being suspended for two years so long as L complied with the terms of his tenancy. Following further complaints of ASB, the Council filed Form N325 requesting warrant for possession and sought an eviction date. The District Judge dismissed L's application to stay the warrant. On L's appeal, the High Court ruled that the Council had not followed the correct procedure because it had failed to apply to the court for permission before issuing the warrant, in accordance with CPR 83.2(3)(e). However, the judge exercised his discretion under CPR 3.10 to excuse a technical procedural error and refused L's appeal.
The Court of Appeal held, dismissing L's appeal, that CPR 83.2 contained an important protection for tenants and was not to be taken lightly. The scheme of CPR 83.2 was clear and the Council should have sought permission before requesting a warrant of possession. The more difficult question for the court was whether it was acceptable for a court to rely on Rule 3.10 to excuse such a failure to seek permission. The Council had issued the wrong form of application, but its application was clearly connected with, and in error for, the application for permission under CPR 83.2 which it ought to have made. The issue of the warrant was voidable, not void – it was not invalid unless the court so ordered. Here, the Council would have ended up in the same place even if it had taken the right procedure and accordingly it would simply cause extra cost and delay not to be able to remedy this matter by use of the power under CPR 3.10. It would be contrary to the aim of saving costs and delay which underlies the CPR to conclude otherwise. The court would exercise the discretion as the judge did. (19 October 2016)
See our alert: Important new law on issuing warrants for possession.
Holley v Hillingdon LBC [2016] EWCA Civ 1052 (CA): H appealed against an order for possession of a house owned by the Council. H's grandmother had been a secure tenant of the property; after her death, her husband G became a secure tenant by succession. H was a member of G's family and had resided with him throughout the 12 months preceding G's death; however, H had no statutory right to succession by virtue of ss.87 & 88 of the Housing Act 1985 as he was himself a successor. H argued that his eviction was a disproportionate interference, within the meaning of Art.8 ECHJR with his right to respect for his home, based on the fact that he had lived in the property all his life, and upon his mental health difficulties.
The court held, dismissing the appeal, that A's medical condition was not, on its own, a factor of anything like sufficient weight to render the Council's decision to evict him disproportionate. Furthermore, H's lifetime residence at the property was neither exceptional, nor of significant weight, viewed on its own. No significant added weight in the proportionality balance was achieved by aggregating H's medical condition with his long residence. In this case the balance remained firmly tilted in favour of the weighty considerations which justified the Council seeking eviction, against the much less weighty and unexceptional circumstances put forward by H. (1 November 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Licensing
DCMS: Review of gaming machines and social responsibility measures: the Government is carrying out a review of maximum stakes and prizes of gaming machines across all premises licensed under the Gambling Act 2005, the number and location of gaming machines across all licensed premises, and social responsibility measures to protect players and communities from gambling-related harm. It has issued a call for evidence across all types of gaming machines, looking at whether the stake and prize limits set out in legislation and the rules on where these machines can be played are right. It is also keen to receive evidence on the effectiveness of social responsibility measures across industry, including requirements around gambling advertising. The closing date for comments is 4 December 2016. (24 October 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Members
Local Government Research Unit: Councillor commission interim report: the Local Government Research Unit, De Montfort University, launched a Councillor Commission to conduct an independent review of the role and work of the councillor and of the contribution made by councillors to the governance of their communities and the country. The Commission has now published its interim report which sets out its initial findings and some of the general themes and trends that have emerged. It shows that councillors face a complex array of policy problems which cannot always be solved by the powers available to them. In addition, councillors make considerable personal sacrifices, and work above and beyond the call of duty in governing and serving their communities. (27 October 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Ports and Harbours
DfT: Port Marine Safety Code – For all UK Harbour Authorities and other marine facilities, berths and terminals: updated Code that sets out a national standard for every aspect of port marine safety. Its aim is to enhance safety for everyone who uses or works in the port marine environment. The revised Code now includes additional advice for non-statutory harbour authorities and the introduction of 10 principles designed to assist organisations to focus on the issues they should be considering to ensure compliance. (3 November 2016)
DfT: Harbours Act 1964 section 40A – Consultation on a second round of applications from harbour authorities to be designated with the power to give harbour directions: the Harbours Act 1964 (as amended by the Marine Navigation Act 2013) provides a mechanism for the Secretary of State for Transport to, by order, designate harbour authorities with the power to give harbour directions, to allow them to better regulate shipping and improve safety within their harbour area. The DfT is seeking views on a second round of applications received from statutory harbour authorities for five harbours in England and one non-fishery harbours in Wales requesting to be designated with the power to give harbour directions. The consultation closes on 5 December 2016. (24 October 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Procurement
Crown Commercial Service: Contract management standards: the CCS has issued updated contract management standards for use by government departments and wider public sector organisations for the management of their contracts. (28 October 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
PHE: Police and Public Health – Innovation in practice: an overview of collaboration across England: this document highlights case studies of initiatives between police and public health from across the country. It was developed to stimulate discussion and sharing of good practice at the October 2016 Police and Public Health Summit with a view to developing a national consensus statement on policing and public health. (28 October 2016)
PHE: Supporting public health – Children, young people and families: Early years high impact areas guidance: updated guidance for local authorities and providers on commissioning and delivering children's public health services. The updated documents cover the six areas where health visitors have the highest impact on the health and wellbeing of children aged 0 - 5 years. (1 November 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Regulatory Services
HC Communities and Local Government Committee: Government's reluctance to tackle Rotherham taxi loophole deeply concerning: the Chair of the CLG Committee has commented on the Government's response to its Committee's report on the imposition of Local Government Commissioners in Rotherham in the wake of the child abuse scandal, and in Tower Hamlets following allegations of corruption. The Committee is critical of the Government's reluctance to tackle a taxi licensing loophole whereby a local authority's licensing requirements for taxis could be undermined by taxis which are licensed by other authorities with less stringent rules but are able to operate in the area. While the Committee welcomes the introduction of national statutory guidance on taxi licensing, it is concerned that the Government has not committed to monitoring how effective it is at closing the loophole once it comes into force, or to taking further legislative action if required. It is also critical of the Government's refusal to say how many local authorities are receiving extra attention from Whitehall with a view to preventing future interventions (2 November 2016)
Surveillance Camera Commissioner: Draft national surveillance camera strategy for England and Wales: seeks views on a strategy to raise standards and compliance with legal obligations within the security industry. The draft strategy aims to: provide direction and leadership in the surveillance camera community; enable system operators to understand best practice and their legal obligations (such as those contained within the Data Protection Act and the Private Security Industry Act); and enable system operators to demonstrate compliance with the principles of the surveillance camera code of practice and other guidance. The consultation closes on 6 December 2016. (25 October 2016)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Standards
Alan Doig: New development – Local government ethics in England: how is local ownership working?: this article, published in Public Money & Management online journal, looks at how English local government has dealt with its statutory requirements to address ‘high standards of conduct’. With the abolition of the Audit Commission and the Standards Board for England, and the emphasis in the Localism Act 2011 on local ownership in England for standards, research was undertaken into a group of councils to assess their legislative compliance arrangements and the development of organisational ethical cultures. The research argues that the delivery of the former is a work-in-progress and that there is little evidence of the latter. While councils have arrangements that address those requirements, the link between them and effective organisational ethical cultures is not made. There are lessons here for the public sector generally both in terms of basic compliance requirements but also the need to ensure that these are part of, and effective within, wider ethical cultural environments. (20 September 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
