27/06/2018
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 three 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 Suzanne Ellison.
All links are correct at the date of publication. The following topics are covered in this update:
Access to Information
Freedom of Information (Extension) Bill: this Private Member's Bill has been introduced into the Commons by Andy Slaughter MP and has received its 2nd Reading. The Bill seeks to amend the Freedom of Information Act 2000 so that the provisions of that Act apply to social housing providers, local safeguarding children boards, Electoral Registration Officers and Returning Officers. It also seeks to amend the 2000 Act so that information held by contractors acting for or on behalf of public authorities will, where that information is held in connection with the performance or proposed performance of the contract, be deemed to be held on behalf of the public authority for the purposes of the 2000 Act or the Environmental Information Regulations 2004. The Bill will also extend the powers of entry and inspection to contractors holding information on behalf of public authorities, and amends the provisions relating to the offence of destroying or altering requested information in order to prevent its disclosure. (15 June 2018)
ICO: Gloucestershire Police fined for revealing identities of abuse victims in bulk email: reports that the ICO has fined Gloucestershire Police £80,000 after it sent a bulk email that identified victims of non-recent child abuse. An officer sent an email to 56 recipients by entering their email addresses in the ‘To’ field rather than ‘BCC’. This meant that each recipient of the e-mail, who potentially included victims, witnesses, lawyers and journalists, could see the full names and e-mail addresses of all the others. The email also made reference to schools and other organisations being investigated in relation to the abuse allegations. (13 June 2018)
Bennis v Information Commissioner and Stratford-on-Avon DC (Part Allowed : Freedom of Information Act 2000) [2018] UKFTT 2017_0220 (GRC): B's complaint of misconduct against a councillor in relation to their handling of a planning matter was not upheld. He then made an FOI request to the Council for disclosure of all correspondence relating to his complaint, including the advice it had received from its Independent Person. The council refused to disclose the IP's advice, relying on s.36 FOIA 2000. The Information Commissioner's Decision Notice upheld the Council's refusal, finding that the circumstances of this case caused the balance of public interest to lie in maintaining the s. 36 exemptions.
The Tribunal held, allowing the Council's appeal, that that the Decision Notice was wrong in its assessment of the public interest test as it related to both of the exemptions relied on by the Council under s. 36 FOIA. However, the Council was correct to refuse part of the requested information under s.40(2) FOIA. It stated that details of unsubstantiated complaints against councillors ought not generally to be disclosed to the world at large under the provisions of FOIA – the proper approach to such information was to consider the rights of the councillor concerned as a data subject. Here, the Council could not disclose the councillor’s personal data (consisting of their name and opinions expressed about them) without breaching the data protection principles and so s.40 (2) FOIA was therefore engaged. However, s.40 (2) FOIA could not also be applied to the personal data of the IPs, as their names were already in the public domain, they occupied senior public roles, and their views might be disclosed if there was a public hearing. (15 June 2018)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
HC Health and Social Care and Housing, Communities and Local Government Committees: Long-term funding of adult social care: this joint report calls for a sustainable funding solution for adult social care. It describes the social care system as "under very great and unsustainable strain". Ahead of the Government’s Green Paper, now expected in the Autumn, it highlights the urgent need to plug a funding gap estimated at up to £2.5bn in the next financial year, before introducing wider funding reforms at both a local and national level to raise extra revenue with a long-term aspiration of providing social care free at the point of delivery. It recommends that a ‘Social Care Premium’ be introduced, either as an additional element of National Insurance or with the premium paid into a dedicated not-for-profit social insurance fund that people would be confident could only be used for social care. It also recommends extending free personal care to people deemed to have 'critical' needs. Extra funds will also need to be raised to extend the care to those with moderate needs as well as those with substantial and critical needs and to provide sufficient resources to ensure the stability of the workforce and financial viability of care providers. It calls for reform of council tax valuations and bands and for local authorities to be able to use new funding from additional business rates retention in 2020 to fund social care rather than as a replacement of grants from the Government. (27 June 2018)
DBS: Referral duty and power for local authorities and regulatory bodies: updated guidance for local authorities and regulatory bodies about the duty and power to refer a person to the Disclosure and Barring Service (DBS). (12 June 2018)
ADASS: Budget Survey 2018: the annual ADASS Budget Survey is the authoritative analysis of the state of adult social care finances in England. The results of this survey explore directors of adult social services’ views of how councils are making incredibly difficult decisions in relation to the growing numbers of people requiring care and support with increasingly complex needs and with higher costs, where funding simply isn’t keeping pace. The data sets out the concerns of councils in making increasingly difficult choices and their attempts to minimise the impact on people made vulnerable by their circumstances, with care and support needs, and their carers. It highlights how social care funding directly affects the lives and life chances of people needing care and support and their families, the workforce, care providers and the NHS. (12 June 2018)
R (M) v Brent LBC (Unreported, Admin Ct): M, who suffered from paranoid schizophrenia and upper limb arthritis, applied for judicial review of the Council's decision to reduce her care package. The Council had assumed responsibility for her care in 2015, on the closure of the Independent Living Fund. It proposed to gradually reduce the number of hours of care from 51 hours to 18 hours pw. Her former husband (H) still played an active role in caring for her and he wanted her closely supervised. The Council's review found that M had capacity, her mental health had remained stable over the years, she had had no hospital admissions since 2004, and that her level of care should be gradually reduced but with ongoing reviews. M contended that the Council had not taken account of a relevant consideration, namely her mental health, and that it could not reduce the care package until it had put in place a care plan under s.25 of the Care Act 2014.
The court held, dismissing the application, that there was no general principle of law that a care package could not be reduced until a care plan under the 2014 Act had been put in place. Under s.1 of the 2014 Act there was a general duty to promote the individual's well-being, and reg.2 of the Care and Support (Eligibility Criteria) Regulations 2015 considered the circumstances required to establish need. H had formed the entrenched belief that any reduction in care would fail to meet M's needs, but the fact that he held that belief did not mean that it was true. As a consequence, H had frustrated the Council's attempts to assess M's needs. The Council's assessment was provisional and part of an ongoing process and it did not follow that a care plan had to be in place before a care package could be altered. Paragraph 6.62 of the Care and Support Statutory Guidance stated that the local authority might pause an assessment to allow time for any benefit to be realised. It was that sensitivity to the individual that was at the heart of the scheme. (22 June 2018)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.
Children's Services
LGA: Making sense – Understanding the drivers of variation in spend on children's services: the LGA commissioned Newton Europe to complete a diagnostic giving a deeper, more picture of council spend on children’s services. This included identifying areas of good practice and the underlying factors that drive spend locally. This report sets out its findings. It describes some of the drivers behind up to 50% of the variation in spend on children’s services. It also emphasises that some degree of variation driven by wider economic and geographical factors can be expected; when coupled with variation in financial reporting practices, this means that caution needs to be taken when comparing one authority with another. Rather; the narrative around spend needs to be based on local system understanding and the appropriate cost of achieving the ideal outcomes for children and families. The report will inform LGA's campaign for a sustainable funding solution for children’s services. (22 June 2018)
DfE: Early education and childcare – Statutory guidance for local authorities: updated statutory guidance for English local authorities on their duties pursuant to s.2 of the Childcare Act 2016 and ss.6, 7, 7A, 9A, 12 and 13 of the Childcare Act 2006. It supports the introduction of 30 hours free childcare for children in foster care, and makes clear that the eligibility of children in foster care will be determined by the responsible local authority. It provides more clarity on how local authorities should pay providers, updates content on charging to ensure that the guidance aligns with current policy, and provides guidance for local authorities when parents have applied for 30 hours before the deadline and received their eligibility code after the deadline. It supersedes the current guidance from 1 September 2018. (21 June 2018)
DfE: Early years entitlements: operational guidance that sets out what local authorities should do to fulfil their statutory responsibilities, what early years settings should do to fulfil their agreement with the local authority, and how local authorities and early years settings can support parents and children. It includes examples of practice which do not constitute guidance but which might assist local authorities in setting up appropriate arrangements to meet their legal duties related to the free entitlements.
There is also a Model Agreement – Early years provision free of charge and free childcare. (21 June 2018)
LGSCO: Teenager wrongly left homeless by London council: an Ombudsman investigation has found a council at fault for failing to provide services to a teenager when she was at risk of homelessness as it should have carried out an assessment to find out what duty it owed her. The homeless teenager has been lost in the system after council officers failed to support her when she called on them for help. When officers decided the mother was intentionally homeless, the council failed to recognise its separate duties to the girl and instead told the family that they should access children’s services at the neighbouring borough, even though it may have owed a duty under housing legislation. The council has since been unable to contact the girl. It has paid the girl £400 via a relative for the distress caused as a result of its failure to support her. It has also held a complaint learning meeting and disseminated the learning across the department. (13 June 2018)
LGA: Meeting the health and wellbeing needs of young carers: the Children and Families Act 2014 and the Care Act 2014 placed a legal duty on local authorities from 1 April 2015 to identify young carers and carry out both a needs assessment and a transition assessment to consider the impact on the child and whole family. These case studies demonstrate the work being done by local authorities to identify and keep young carers engaged and involved so that the impact of their caring responsibilities can be minimised. (12 June 2018)
Welsh Government: Welsh Government funded childcare offer expanded: announces that a further seven local authorities are set to pilot the Welsh Government’s offer of 30 hours of funded early education and childcare to working parents of 3 and 4 year olds for 48 weeks of the year. (19 June 2018)
Knowsley MBC v X [2018] EWFC 42 (Fam Ct): this case concerned the nature of orders that should be made with respect to the placement of four children with family members and the role of The National Minimum Standards for Fostering in the assessment processes pertaining to relative carers. The Council had proposed that the two younger children should be the subject of Special Guardianship Orders in favour of their grandparents, W. The guardian and the children's mother considered that care orders should be made in respect of all four children. The social workers' initial viability assessment of W concluded that the assessors did not consider them to be appropriate potential foster carers; however, by the time the case came to court the Council stated that W now met the Fostering National Minimum Standards and there would be no foreseeable bar to them being approved as foster carers for the children.
The court held that W were the appropriate placement for the children, and care orders were clearly in the best interests of the children at this time, with the hope that the care orders could be replaced with Special Guardianship Orders in early course. The court highlighted a misunderstanding by the Council and many local authorities as to the purpose of the National Minimum Standards for Fostering. These were not a means by which potential foster carers should be excluded as being foster carers without at least first considering whether the potential carers could be supported to meet the standards. Assessments that first asked "Do these carers meet the Fostering National Minimum Standards?" were answering the wrong question at the wrong time. The basic questions that should be asked and answered by such assessments were: Was it in the welfare interests of the children to be placed with these carers? If yes, what legal structure for such a placement best meets the welfare needs of the children? Only then, having answered these questions, did the National Minimum Standards become relevant and engaged: Do the proposed carers meet the NMS? If the proposed carers do not meet them, can they be supported to attain the standard? It could not be correct that the statutory and regulatory structures underlying both the making of Care Orders and Special Guardianship Orders were interpreted and implemented in such a way that placements where there might be greater risks to the welfare of a child could only be subject to the order that provided for the lesser ability of the state to monitor and promote that child’s welfare. (14 June 2018)
If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.
Combined Authorities
Draft West Midlands Combined Authority (Business Rate Supplements Functions and Amendment) Order 2018: this draft Order, once in force, provides for the WMCA to have functions corresponding to the functions that the GLA has under the Business Rates Supplement Act 2009 to levy a supplement on business rates to raise money for expenditure on a project which will promote economic development in its area. The functions are exercisable only by the Mayor, who may be assisted by members or officers of the authority in the exercise of the functions. The general power of the of the Combined Authority under s.113A LDEDC Act 2009 is conferred on the Mayor for the purposes of those functions. It also amends the list of "combined authority roads" (known as the West Midlands Key Route Network) in the West Midlands Combined Authority (Functions and Amendment) Order 2017 (SI 2017/510) over which the WMCA exercises functions relating to highways and traffic. (13 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Community Rights
Locality: The great British sell-off: the community organisations body has launched Save our Spaces, a campaign to save publicly owned buildings and spaces from being sold off for private use. This publication sets out the findings from an FOI request that was sent to all councils in England to try and get a better sense of the problem. It states that on average more than 4,000 publicly owned buildings and spaces in England are being sold off every year.
See also the LGA's response to this report. (19 June 2018)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Economic Development
MHCLG: Thames Estuary 2050 Growth Commission report 2050 vision: the independent Commission has published a report that sets out a vision and delivery plan for north Kent, south Essex and east London up to 2050. Its analysis shows that the Thames Estuary could generate an additional £190bn of Gross Value Added (GVA) and 1.3mn new jobs by 2050. It estimates that at least 1m new homes will be needed to support this growth. To unlock the area’s untapped potential, the Commission proposes viewing the Estuary as a series of interconnected but distinct productive places. It identifies 15 priority projects to deliver this vision. (25 June 2018)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
DfE: Approaches to preventing and tackling bullying: sets out the findings of research into anti-bullying practices used by schools to prevent and tackle bullying. It includes case studies that show examples of how schools have promoted respectful behaviour and tackled prejudicial bullying (e.g. race/nationality, faith, LGBT, SEND, sexist bullying) and cyberbullying. (13 June 2018)
DfE: Insolvency regime for further education and sixth form colleges – Government response to technical consultation: sets out the Government's response to its December 2017 technical consultation on the details of the insolvency regime being developed for FE and sixth-form colleges. This regime was set up by the Technical and Further Education Act 2017 to provide orderly winding-up and other insolvency proceedings in the unlikely event of an FE or sixth form college becoming insolvent. The regime is similar to those applying to companies and other organisations in the UK. The 2017 Act also introduced a special administration regime for the college sector, known as an education administration, which protects learner provision for existing students at insolvent colleges. The Government says that it will introduce the necessary secondary legislation when the Parliamentary timetable allows, with the intention that the insolvency regime will be in force in late 2018. (15 June 2018)
Welsh Government: Eligibility for free school meals: following the introduction of Universal Credit, the Welsh Government needs to revise eligibility criteria for free school meals in Wales. It is now consulting on proposals to introduce an earned income threshold of £7,400 for Universal Credit claimants who want to claim free school meals for their children, along with transitional protection for families affected by the change. The consultation closes on 14 September 2018. (6 June 2018)
Welsh Government: Delivery and funding of community-based adult learning: the Welsh Government published its revised Adult Learning in Wales policy statement in July 2017, which defined its priorities for adult learning for the remainder of this Assembly term, and reaffirmed its commitment to supporting lifelong learning in Wales. It is now seeking views on proposals for restructuring the way that it delivers and funds community-based adult learning. The consultation closes on 11 September 2018. (12 June 2018)
Mayor of London: Skills for Londoners Strategy 2018: the Mayor has published his first post-16 skills and adult education strategy which aims to ensure all Londoners have the skills, education and training they need to succeed and help the capital’s economy to thrive. The Strategy places social mobility, inclusion and diversity at its heart, focuses on post-16 technical and vocational education, adult education and employment support, and considers pathways from school into further learning and work. It also aims to tackle the fact that women, young Londoners, disabled Londoners and those from a Black, Asian and minority ethnic backgrounds are under-represented in the labour market. (6 June 2018)
If you wish to discuss any of the items noted in this section please contact Rosie Tabrizi.
Employment
Human Trafficking Foundation: Helping London respond to Modern Slavery: the Foundation is working to equip the London boroughs to identify, support and assist victims of human trafficking, in light of the new Modern Slavery Act 2015 and Care Act 2014, which present local authorities with new statutory responsibilities. It has produced several resources to help local authorities improve their response to human trafficking and modern slavery, including an Adult Modern Slavery Protocol for Local Authorities, which gives guidance on a local authority's statutory duties to identify and support victims of human trafficking and modern slavery. (18 June 2018)
Cabinet Office: Supporting guidance for the Trade Union (Facility Time Publication Requirements) Regulations 2017: guidance on the 2017 Regulations, which came into force on 1 April 2017. The regulations require relevant public sector employers to collect and publish, on an annual basis, a range of data in relation to their usage and spend of trade union facility time in respect of their employees who are trade union representatives. Facility time is the provision of paid or unpaid time off from an employee’s normal role to undertake trade union duties and activities as a trade union representative. There is a statutory entitlement to reasonable paid time off for undertaking union duties, but no such entitlement to paid time off for undertaking activities. (2 June 2018)
Pimlico Plumbers Ltd v Smith [2018] UKSC 29 (Sup Ct): the Supreme Court has ruled that S, a plumber, who was engaged by a plumbing firm, PP, as an independent contractor was, in fact, a "worker" within the meaning of s.230(3) of the Employment Rights Act 1996. The court held that the terms of the contract between PP and S were clearly directed to performance by S personally and its requirements, e.g. as to skills, competence and conduct, were addressed to S personally. S's limited right to substitute another of PP's operatives was simply a means of work distribution between the operatives akin to the swapping of shifts within a workforce, and did not negative his obligation of personal performance. The severe terms of his contract as to when and how much PP was obliged to pay him, and references to "wages", "gross misconduct" and "dismissal", were evidence of a grip on his economy that was inconsistent with his being a truly independent contractor. (13 June 2018)
For more details and our commentary on this case, see our Employment Status Update: Alert! Supreme Court: Pimlico plumber was a 'worker'.
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Environmental Protection
DEFRA: Tree Champion to expand England's woodland: announces that Sir William Worsley has been appointed as Tree Champion to drive forward planting rates and prevent the unnecessary felling of street trees. His role will include identifying and promoting best practice across local government to prevent the unnecessary felling of street trees, supporting the introduction of a new duty for local councils to consult before felling, and working across local government to ensure ancient woodland is more strongly protected. (13 June 2018)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
European Union
European Union (Withdrawal) Act 2018: this Act has received Royal Assent. Most of its provisions come into force on 26 June 2018; the remaining provisions come into force on a day, or days, to be appointed. The Act repeals the European Communities Act 1972 on "exit day" (defined as 29 March 2019 at 11.00 pm). It ends the supremacy of EU law in UK law, converts EU law as it stands at the moment of exit into domestic law, and preserves laws made in the UK to implement EU obligations. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Act also enables domestic law to reflect the content of a withdrawal agreement under Art.50 of the Treaty on European Union once the UK leaves the EU, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal. See also the Explanatory Notes and the LGA's briefing. (26 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Finance
Localis: Monetising goodwill – Empowering places for civic renewal: this report looks at whether, as the nation reaches a tipping point on austerity in local services, people are willing to pay something extra to better fund particular local services across the country. The research shows there is a gap between what people are willing to contribute towards funding local services and what they provide now: "goodwill" It finds that the top five public services for which people would pay more council tax per month are: public health, fire, police, adult social care and children’s social care. (25 June 2018)
Welsh Government: Removal of the sanction of imprisonment for non-payment of council tax: seeks views on proposals that will: bring council tax debt into line with other forms of civil debt; remove an outdated and disproportionate response to civil debt issues; and reduce costs and facilitate more citizen-focused approaches to council tax debt prevention. The consultation closes on 3 September 2018. (11 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Fire and Rescue Authorities
Home Office: Government response to consultation on enabling police and crime commissioners (PCCs) to sit and vote on combined fire and rescue authorities (FRAs): sets out the Government's response to the November 2017 consultation on proposals to vary the combination schemes of combined FRAs to implement the ‘representation model’ of the Policing and Crime Act 2017. This would enable a PCC to have representation on their local FRA and/or its committees, with voting rights, subject to PCCs requesting to sit on the FRA and the FRA agreeing. The provisions would enable a PCC to be a member of the FRA until there was either a vacancy in the OPCC or if there were to be no vacancy in the office before then, the day on which their term of office as PCC would end. In light of the responses, the Government will now draft a negative statutory instrument to amend the combination scheme of FRAs who are supportive of the amendment. Two FRAs objected to the proposed amendments. The Home Office will launch an inquiry under the provisions of the 2004 Act to better understand their concerns and to help come to a view on whether to amend their respective combination schemes. It is also seeking views on the issue of membership allowances for PCCs – comments on this should be submitted by 29 June 2018. (12 June 2018)
Police, Fire and Crime Commissioner for Staffordshire (Fire and Rescue Authority) Order 2018 (SI 2018/696): this Order is made under s.4A of the Fire and Rescue Services Act 2004, as amended by the Policing and Crime Act 2017, and comes into force on 1 August 2018. It enables the person who is for the time being the Police and Crime Commissioner (PCC) for Staffordshire to be responsible also for the governance of fire and rescue services within their area; the PCC will then be known as the Police, Fire and Crime Commissioner. The Order abolishes the Stoke-on-Trent and Staffordshire Fire and Rescue Authority and in its place creates a corporation sole known as the Staffordshire Commissioner Fire and Rescue Authority as the fire & rescue authority for Stoke on Trent & Staffordshire. (8 June 2018)
Home Office: North Yorkshire PCC to take on responsibility for North Yorkshire Fire and Rescue Service: announces that the Home Secretary has approved North Yorkshire PCC's proposals to take responsibility for North Yorkshire Fire and Rescue Service. (13 June 2018)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Governance
R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin) (Admin Ct): B applied for judicial review of the Council's grant of outline planning permission for the development of part of an estate that comprised the demolition of up to 542 dwellings and the provision of up to 700 dwellings. B was a long term resident on the estate; he also acted on behalf of the local residents' association. He contended that in coming to its decision, the Council had failed to have due regard to its Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010.
The court held, granting the application, that the Council had failed to comply with the PSED. The grant of outline planning permission was therefore unlawful and would be quashed. The Council had not had due regard to the impact on the elderly and disabled persons of granting an application which might lead to the demolition of their existing homes. It had been concerned to ensure that all those affected would be provided with information to allay concerns about displacement, and the officers' report had noted the potential of the loss of affordable housing, but ultimately, the focus was on the impact of displacement, or moving, of residents. It had not specifically addressed or had regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home. There were matters relevant to the discharge of the PSED which the relevant decision-maker needed to have due regard to but which were not drawn to the decision-maker's attention. The court could not say that the outcome for B would not have been substantially different if the PSED had been complied with, nor was it likely that the outline planning permission would have been granted if the breach of s.149 had not occurred. In those circumstances, and given the absence of any other justifiable reason for refusing a remedy, the appropriate course of action was to quash the outline planning permission for the redevelopment of the site. (20 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
MHCLG: Brokenshire confirms social housing investment boost: the Communities Secretary has announced that 23,000 new affordable homes will be delivered through a £1.67bn government investment deal. The Government is inviting local authorities in areas of high affordability pressure to bid for additional borrowing to build new council housing. The Additional Housing Revenue Account Borrowing Programme prospectus states that the Government will raise the HRA borrowing cap by a total of up to £1bn in areas of high affordability pressure for local authorities that are ready to start building new homes. It also says that councils will be able to combine borrowing with AHP grants or Right to Buy Receipts. Local authorities will be able to bid for increases in their caps between 2019 to 2020 and 2021 to 2022. Local authorities must submit bids using Homes England’s online bidding. The closing date for receiving bids is 7 September 2018. (26 June 2018)
MHCLG: Houses in multiple occupation and residential property licensing reform – Guidance for local housing authorities: guide on how to implement the reforms to houses in multiple occupation (HMO) licensing. With effect from 1 October 2018, mandatory licensing of HMOs will be extended so that smaller properties used as HMOs in England which house five people or more in two or more separate households will in many cases require a licence. New mandatory conditions to be included in licences have also been introduced, prescribing national minimum sizes for rooms used as sleeping accommodation and requiring landlords to adhere to council refuse schemes. (20 June 2018)
MHCLG: Homelessness code of guidance for local authorities: updated guidance on how local authorities should exercise their homelessness functions in accordance with the Homelessness Reduction Act 2017 from 3 April 2018. (20 June 2018)
County Councils Network: Building for the future – The role of county councils in meeting housing need: this report from the Town and Country Planning Association for the CCN, backs a stronger role for counties in planning and closer collaboration between the two tiers of council in county areas. It: looks at what counties are already achieving under their current powers; sets out examples of leadership by pioneering councils who are unlocking the provision of new housing through partnerships and direct delivery; and gives an indication of the skills and capacity that county councils and county unitary authorities already have in this area. It also highlights what else county authorities can and want to do to address the housing challenges and opportunities in their local areas. The report showcases the entrepreneurial work that counties are doing to deliver housing, with eight recommendations to Government to further unlock the potential of counties as powerful enablers and delivers of housing. (20 June 2018)
LGA: Sustainability of Right to Buy: this paper analyses the various features and factors affecting local authorities' ability to reinvest Right to Buy (RTB) receipts within Retention Agreements (so-called 141 receipts agreements) signed with Government since 2012. It models the capacity to replace homes sold in the years ahead, adjusting for different factors. The model allows for these forecasts to be developed for individual local authority Housing Revenue Accounts, which may be helpful for councils thinking about their asks from Government in developing future build programmes. It concludes that without major reform of the scheme, councils’ ability to replace homes sold under RTB will be all but eliminated within five years. (13 June 2018)
Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2018 (SI 2018/730): these regulations, which come into force on 9 July 2018, amend the Eligibility Regulations (SI 2006/1294) in order to make a new category of persons eligible for an allocation of social housing and homelessness assistance. They provide for persons who have been transferred to the UK under s.67 of the Immigration Act 2016 and have limited leave to remain under para.352ZH of the Immigration Rules to be eligible for an allocation of social housing and homeless assistance if they are habitually resident. (15 June 2018)
XPQ v Hammersmith and Fulham LBC [2018] EWHC 1391 (QB): X, who had been identified as a victim of trafficking, sought damages from the Council for psychological injuries she had suffered as a consequence of two placements in unsuitable temporary accommodation, and in respect of breaches of their duties under the EU Trafficking Directive 2011/36.
The court held, dismissing the claim, that Directive had neither direct nor indirect effect, but if it did have indirect effect, X would be no better placed than she would be if a claim in common law negligence could succeed. The law did not as a general rule impose liability on a defendant for injury or damages to the person or property of a claimant caused by the conduct of a third party and the court was bound by case law which had held that the Housing Act 1996 did not create a private law duty for which damages could be claimed. The positive obligations under the ECHR to protect victims did not have the consequence that a victim of trafficking, uniquely, might maintain a private law action for damages either in respect of the actions of third parties, who were not their traffickers, nor in respect of the nature of accommodation provided by a local housing authority. Even if there had been a duty giving rise to a right to a private law claim for damages, in these particular circumstances there would not have been a breach of that duty. The argument that the Council had a duty of care for X's safety and broke it, failed because the Council had no responsibility for the actions of those at the accommodation, who were independent third parties, and their actions were neither the very sort of thing that was likely to happen nor even reasonably foreseeable. (7 June 2018)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Infrastructure
HC Public Accounts Committee: Private Finance Initiatives: in this report, the Committee calls on the Government to level with taxpayers about the value of PFI, and for HM Treasury and the Infrastructure and Projects Authority to be far clearer about how it expects public bodies to use PF2. Government’s own figures suggest the UK needs to spend some £300bn on infrastructure over the next couple of years. It is critical that taxpayers are not further lumbered with excessive costs arising from poor contracting. (20 June 2018)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Libraries
DCMS: Government extends Public Lending Right scheme to ebook authors: announces that from July 1, the Public Lending Right Scheme will cover e-books and e-audiobooks that are loaned from public libraries across Great Britain. This means that authors are eligible for payment in the same way if their works are borrowed electronically or as physical books. (7 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Local Land Charges
Land Registry: Local land charges (PG79): practice guide on applications to register a local land charge or to vary or cancel the registration of a local land charge, and applications for an official search or personal search of the local land charges register. It does not cover CON 29 enquiries, which will continue to be answered by local authorities. (18 June 2018)
If you wish to discuss any of the items noted in this section please contact Diane Dare.
Planning
County Councils network: County Councils & Strategic Planning – A review of current & emerging practice: this study from Catriona Riddell Associates for CCN calls for a re-introduction of strategic planning to closer align planning and infrastructure and to accelerate housing delivery. The review considers what is needed to support strategic planning and what the role of county councils should be in two tier areas, looking at the prerequisites for effective strategic planning are and experience across the country. It concludes that, whilst the Government’s reforms should improve the current situation, they do not properly address the need to better align spatial, economic and infrastructure priorities across strategic areas. It concludes that there is scope to build on the current government reforms and introduce a more formal approach to strategic spatial and infrastructure planning and enhance the role of county councils in two-tier areas. (20 June 2018)
MHCLG: Update on financial support for neighbourhood planning in 2018/19: this letter to Chief Planning Officers gives details of arrangements for funding local planning authorities from the financial year 2018/19. The financial support covers authorities' neighbourhood planning duties to provide advice or assistance; to hold an examination; and to make arrangements for a referendum, that were introduced by the Localism Act 2011. (30 May 2018)
R (Oates) v Wealden DC [2018] EWCA Civ 1304 (CA): O, a local resident, applied for judicial review of the Council's decision to grant planning permission for a housing development on farmland. The site lay outside the development boundaries of the two nearby villages, and was not allocated for development in the development plan. The main issue was whether the advice given by the Council's Principal Planning Officer to the Planning Committee materially misled the members on the effect of reg.123 of the Community Infrastructure Levy Regulations 2010, and on the acceptability of the likely impact of traffic generated by the development on local junctions, so invalidating the grant of planning permission.
Community Infrastructure Levy (CIL) is a standard charge imposed on development by a local planning authority that is used to fund infrastructure, including roads. the need for which is created by development. The Council had adopted a CIL charging schedule for its area that included a list of infrastructure projects to be funded through s.106 contributions by CIL chargeable development. Under reg.123 of the 2010 Regulations, a planning obligation could not be a reason for granting permission to the extent that it provided for the funding or provision of an infrastructure project or type of infrastructure that was on the CIL list. The County Council, as highways authority, original objected to the development because of the impact on traffic and congestion. It later withdrew its recommendation for refusal after receiving legal advice that there was no legal mechanism for the developer to deal with the required mitigation measures previously identified, other than through paying the CIL charge. The Planning Officer's report to the Planning Committee recommended that planning permission be granted. She noted that concerns about impacts on existing infrastructure and services did weigh against the proposal: the development would be liable to CIL payments which would provide significant revenue to the Council's revolving infrastructure fund that could then be utilised to assist in providing additional services for the area, with the highways improvements being identified as a priority in the Council's Regulation 123 List. She concluded that the likely residual cumulative impact of the proposed development would not be severe, and that there were no reasons in transport terms to justify a refusal of planning permission. O contended that the advice given by the Officer in her report to Committee, which was informed by the County Council's consultation response as highway authority, withdrawing its objection to the proposed development, was based on a misunderstanding of reg.123 - it did not follow from the limitation created by reg.123 that harm that would arise before the CIL-funded infrastructure was provided could not be a reason for refusing permission.
The court held, dismissing the application, that the Planning Office's relevant advice, read fairly as a whole, was not flawed in such a way as to invalidate the Council's grant of planning permission. When considering a challenge to a grant of planning permission in which criticism was made of a planning officer's report to committee, minor or inconsequential errors were to be distinguished from advice that was significantly or seriously misleading in a material way. Unless there was some distinct and material defect in the officer's advice, the court would not interfere. The Officer's own view of the reality of the situation and in light of her own knowledge, was that the cumulative effect of traffic from this proposed development and traffic from development on the allocated site was not, in fact, going to exceed the impact anticipated in the development plan before the CIL-funded junction improvements were in place; it would not, therefore, be an unacceptable impact. This was a perfectly rational and understandable conclusion, and well within the scope of a lawful exercise of planning judgment. The Officer's own assessment was sound in itself, and not undermined by the inaccurate or inadequate legal advice on which the County Council seemed to have relied. (8 June 2018)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Public Health
DHSC: Childhood obesity – A plan for action, chapter 2: outlines the actions that the Government will take towards its goal of halving childhood obesity and reducing the gap in obesity between children from the most and least deprived areas by 2030. These include proposals to counter ‘pester power’ by preventing stores from displaying unhealthy food at checkouts or including it in buy-one-get-one-free deals, and a new national ambition for every primary school to adopt a daily ‘active mile’ initiative, such as the Daily Mile. The Government will launch a 3-year programme to work closely with local authority partners to show what can be achieved within existing powers with a particular focus on inequalities, finding solutions to barriers and sharing best practice with others.
See also the LGA's Healthy weight, healthy futures: local government action to tackle childhood obesity. (25 June 2018)
PHE: Work, worklessness and health – Local infographic tool: work, worklessness and health is an important public health issue at both local and national level. This tool has been developed from the national work and health infographics, published in 2016, and now includes a slide set for each county or unitary authority in England. The slides present regional and local-level data to help local stakeholders raise awareness of work, worklessness and health issues and embed them into policy planning. (13 June 2018)
King's Fund: The role of cities in improving population health – International insights: drawing on international case studies, this report explores the role of cities in improving population health and the conditions needed for success. It is based on 50 interviews with leaders from 14 cities and includes an extended case study on London that examines the lessons the city might learn from elsewhere. The research found that although there is wide variation between cities in terms of governance arrangements, powers and resources, there are also some common themes. One is that improving population health depends on co-ordinated action at multiple levels, which requires effective leadership, robust governance, and adequate investment in central programme management. (15 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Regulatory Services
DEFRA: Serious and organised crime in the waste sector – Call for evidence: seeks views on the threat and effects of serious and organised crime in the waste sector. DEFRA would also like to understand how organisations, including local authorities, respond to the threat. The evidence gathered will be used to inform the Government's review into serious and organised crime in the waste sector in England. The closing date for responses is 8 July 2018. (10 June 2018)
North Warwickshire BC v Persons Unknown [2018] EWHC 1603 (QB): the court has granted an injunction to North Warwickshire BC prohibiting "street cruising" in its local government area. The judge found that the Council had made out its case for the injunction it sought and that such an order was necessary to control the problem of street cruising, which was not effectively restrained by the use of criminal law sanctions. The aims of the order were to make the highways safer, to reduce crime and public nuisance, and to protect and promote the interests of its inhabitants. The order was a proportionate interference with the rights of those who engaged the various activities which went to make up street cruising. The judge ordered that the inunction would run for three years, renewable on application with a review after 18 months. There would be a power of arrest attached to the injunction in relation to any person participating in a street cruise who was a driver, rider or passenger in a relevant vehicle, i.e. those playing an active role rather than simply spectating. (22 June 2018)
Business Energy Solutions Ltd v Crown Court at Preston; Cheshire West and Chester Trading Standard (Interested Party) [2018] EWHC 1534 (Admin) (Admin Ct): this case raised novel issues about the duties of authorities who, pursuant to lawfully obtained warrants, had seized computers and other electronic devices containing data which the authority then copied and retained. The Trading Standards Authority had applied to the Crown Court for, and obtained, warrants to search and seize material from various premises, in connection with their investigation into possible fraud by BES, and the exercise was conducted under the Criminal Justice and Police Act 2001. The warrants permitted the seizure of computer equipment such as servers, laptops, USB sticks and mobile phones. The contents of these seized devices were copied and then backed-up and the physical devices were returned. The copied data on the servers of the investigating authorities exceeded 200m documents and included about 770,000 audio recordings of telephone conversations. BES applied to the court under s.59 of the 2001 Act for the return of its physical property, hard copy documents and data now stored and backed-up on the Authority's systems. The judge refused to make any direction about the copied data held by the Authority and BES applied for judicial review of that decision. The issues were how the duty to return in s.53 of the 2001 Act operated in the context of copied data, and the extent of the duty to return seized property that was not within the scope of a warrant where it was not reasonably practicable to separate it from property which was within the scope of the warrant and could therefore be retained. The Authority also argued that BES could and should have exercised their rights and remedies in the Crown Court under s.59 instead of applying for judicial review.
The court held, refusing the application, that data copied from computer devices did amount to "seized property" which in principle was capable of being returned including through deletion or destruction. The judge was correct to conclude that the test of reasonable practicability was the broad practical test and not the narrower test of technical or physical separation. He had not erred in his analysis of the facts and he had come to the correct conclusion. The court rejected the Authority's argument that BES should have exploited their alternative remedies instead of embarking upon the judicial review. The judge's decision as to the test to be applied under s.59 barred BES from the relief that they sought and there was nowhere else for this point of law to be tested save the High Court by way of judicial review. This was not a case of a collateral challenge to a decision to prosecute or a decision of a judge in the course of a prosecution, and the central issue of law was a matter suitable for judicial review. (19 June 2018)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Tortious Liability
Hounslow LBC v Devere [2018] EWHC 1447 (Ch): the Council brought a claim against D and other boatowners, seeking damages for trespass. D had moored their vessels on the bank of the River Thames alongside a public park that was owned by the Council. Alongside the river and the park was a walkway which was a leftover from the previous use of the land as a gas works. The Council had a licence under s.66 of the Port of London Act 1968 to maintain and retain those works. Part of the walkway was on the Council's land, while part overhung the river. D had attached their vessels both to the concrete posts beneath the walkway and to the piers and piles which were sunk into the river bed. The judge concluded that all of D's acts of mooring amounted to trespass and ordered them to remove their vessels.
The court held, allowing D's appeal in part, that the judge was right to hold that D had trespassed on the Council's land, including the posts holding up the walkway, by running electricity cables and water pipes over the land and mooring to the posts holding up the walkway. However, the judge was not right to hold that D had interfered in the past with the Council's rights in relation to the other posts and piles sunk into the river bed. The river works were fixtures and not chattels, and title to them was vested in the owner of the river bed, the PLA, not in the Council, but the Council had equitable rights under the licence. It was wholly artificial to hold that the Council was in possession of the surface of the walkway but was not in possession of the posts which held up the walkway, so realistically the Council was in possession of the whole of the structure of the walkway including these posts; it was not in possession of the other posts and piles sunk into the river bed. The court overturned the judge's decision that members of the public were entitled to enter and remain in the park for recreational purposes only and that when D used the park to gain access to their vessels they were exceeding the permission to use the park for recreational purposes and were therefore trespassing. There was no difference between a member of the public using the park for the purposes of obtaining access to an adjoining area and D using the park as a means of access to their vessels. The mooring of the vessels resulted in a trespass to the posts holding up the walkway but there was no separate act of trespass when D was walking across the park on their way to or from their boats. (14 June 2018)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
