28/09/2023
Welcome to the September edition of LA View – a monthly update summarising recent Government publications, legislation, cases and other developments relevant to those involved in the local authority sector.
LA Spotlight
Challenging times…
It’s a bit of a bleak landscape out there at the moment in local government land.
Squeezed finances and strangled government funding have been placing pressure on LAs up and down the country for many months and years now, and so it is not without surprise that the news of Birmingham City Council’s financial predicament and s.114 emerged in recent weeks.
Then hot on the heels came the SOS from Derbyshire County Council stating it was on the edge of bankruptcy and that it would be freezing recruitment and stopping all non-essential spending.
With Birmingham, Michael Gove appears to be placing the blame squarely at door of the Council, whilst Angela Raynor argues it is the Conservative “wrecking ball” that is to blame.
This is frightening enough as it stands (as we speak there are, according to Labour, 26 further councils on the edge of bankruptcy), but perhaps even more worrying is the stark reminder from several commentators that believe that the REAL squeeze on funding and spending has not even begun, and is more likely to be seen from 24/25 onwards. It makes for difficult reading.
Whomever, or whatever, is to blame for the current situation, what is clear is that there are myriad local council staff up and down the country doing their very best to keep the lights on in the most difficult of conditions. They should be saluted and supported. If you are a local authority in trouble, or with trouble looming on the horizon, do get in touch with our experienced team of lawyers.
Net Zero
Publication of hydrogen policy documents
The summer months can often be a period of relative calm with respect to the development and release of Government policy.
That’s certainly not the case recently in respect of the continued progression of the strategic documentation being produced by DESNZ to further accelerate our hydrogen economy.
Those who have already enjoyed their summer break might have missed that, within the first weeks of August, we have seen the release of three critical aspects of DESNZ policy through the issue of the full standard terms and conditions / front end Agreement of the Hydrogen Production Business Model, the updated UK Hydrogen Strategy and DESNZ’s minded positions in respect of proposal for Hydrogen Transport and Storage Business Models.
There is a lot of content here to digest and we will be separately be reviewing, considering and providing comments over the coming weeks in respect of each of these important documents. From an initial review across the suite it is clear that a lot of detailed work has been undertaken across each of these elements to support and drive forward the hydrogen economy. Additionally, the pace of the framework/strategic policy programme indicates that DESNZ well understands the need for these essential fundamentals to be in place to allow hydrogen projects currently in the feasibility/commercialisation stages to move towards their implementation phase.
If you would like to know how Bevan Brittan could help, please do get in touch with one of our Energy specialists Rupert Lugg.
Publications & Guidance
Nutrient neutrality announcement: explanatory paper
Department for Levelling Up, Housing and Communities | 11 September 2023
On 29 August, the government announced, as part of the Long Term Plan for Housing, steps to unblock housebuilding to deliver homes for local communities while protecting and improving the environment. This paper explains in greater detail what the problem is that needs to be addressed, the ways in which it is impacting local communities, and how the government intends to solve this issue in a way that both allows housebuilding to proceed and accelerates work to restore sensitive Habitats Sites.
Renewable Energy Good Practice Guidance 2023
Local Government Association| 8 September 2023
Most local authorities already have some experience of renewable energy generation, usually through building mounted solar PV systems. The confidence that owning and operating these systems has brought is leading an increasing number of local authorities to consider owning larger renewable energy generating assets, either solar farms or wind turbines.
Sustaining the political mandate for climate action
Green Alliance | 7 September 2023
Responding to the climate crisis is a fundamental challenge for politics today. But how do UK politicians, charged with leading the way, navigate the issue? This report answers that question. Following Green Alliance’s previous report from 2018, which looked at how UK MPs understand and respond to climate change, this report is based on a new set of interviews with 15 MPs, and a focus group with civil society representatives. The findings reflect not only the perspectives of the MPs, but also their views on how climate change is seen by their parliamentary colleagues.
Department for Energy Security and Net Zero | 6 September 2023
Identifying and designating zones where heat networks provide the lowest-cost, low carbon heating option.
UK heat networks: market overview
Department for Energy Security and Net Zero | 1 September 2023
The UK heat networks market overview explains the role that heat networks can play as part of the transition to net zero and the opportunities to enter an expanding market. It contains:
- an overview of the current market;
- areas of opportunity;
- example of current heat networks; and
- the future vision.
Energy Bill [HL] 2022-23 Committee stage report
House of Commons Library | 1 September 2023
The remaining stages of the Energy Bill [HL] 2022-23 in the House of Commons took place on 5 September 2023. This paper is a summary of what happened at committee stage and how the Bill has changed as a result.
The Environmental Protection (England) (Gas Demand Side Response) (Local Authority) Direction 2023
Department for Environment, Food & Rural Affairs | 24 August 2023
Ministerial direction to local authorities about fuel switching in England under gas demand-side response.
Clean Air Zones, Low Emission Zones and the London ULEZ
House of Commons Library | 11 August 2023
Road user charging zones are intended to reduce air pollution in cities, by charging drivers of older, more polluting vehicles to enter them.
News
Office for Environmental Protection | 12 September 2023
The Office for Environmental Protection (OEP) has identified possible failures to comply with environmental law by the Department for Environment, Food and Rural Affairs (Defra), the Environment Agency and Ofwat in relation to the regulation of combined sewer overflows (CSOs).
Record number of renewables projects awarded government funding
Department for Energy Security and Net Zero | 8 September 2023
A record number of clean energy projects were awarded funding on 8 September 2023 from the government’s flagship renewables scheme helping the UK grow the economy, achieve net zero, protect families and businesses from volatile global gas prices, and strengthen energy security. The flagship renewables scheme set to deliver 3.7GW of clean homegrown energy, enough to power the equivalent of two million homes.
‘Biggest clean energy disaster in years’: UK auction secures no offshore windfarms
The Guardian | 8 September 2023
No new offshore windfarms will go ahead in the UK after the latest government auction, in what critics have called the biggest clean energy policy failure in almost a decade. Also see: Avoidable and botched: Green groups react to offshore wind omission in CfD auctions | edie
Local areas supported to progress onshore windfarms
Department for Energy Security and Net Zero | 5 September 2023
Onshore wind projects supported by local people will be approved more quickly in England, in new measures being brought forward by the government. The government has now streamlined planning rules, meaning local areas have a greater say in how onshore wind projects should be considered, ultimately resulting in electricity bill savings and increased national energy security.
Europe breaks its wind and solar records
Power Technology | 4 September 2023
Europe has seen success in wind and solar power generation as it seeks to hit its 2030 goal for cutting greenhouse gases.
Boost to heat pump rollout with plans for cheaper and easier installation
Department for Energy Security and Net Zero | 31 August 2023
Simplified approach to qualifying for a heat pump grant could save consumers time and money, and variable grants will improve access.
Proposed changes to laws on developments will weaken environmental protections, warns OEP
Office for Environmental Protection | 30 August 2023
Proposed changes to the Levelling-up and Regeneration Bill will reduce the level of environmental protection provided for in law and amount to a regression, the OEP is warning.
Sadiq Khan drops plan for zero-emission zone
The Independent | 30 August 2023
London mayor Sadiq Khan has dropped plans for a zero-emission vehicle zone in the centre of the capital. The Labour’s mayor’s Transport Strategy published in March 2018 stated that he would “aim to deliver a zero-emission zone in central London from 2025”.
Westmorland & Furness' Climate Action Plan
Local Government Association | 30 August 2023
As a new authority, Westmorland and Furness has made climate change a key priority from the outset. Its ambition is to provide leadership on climate change, for sustainable and inclusive growth, and work together with communities on the biggest challenge of our generation.
100,000 more homes to be built via reform of defective EU laws
Department for Levelling Up, Housing and Communities | 29 August 2023
Over 100,000 homes held up due to defective EU laws will be unblocked between now and 2030, delivering an estimated £18bn boost to the economy, the government has announced. Currently, legacy EU laws on nutrient neutrality are blocking the delivery of new homes, including cases where planning permission has already been granted. Nutrients entering our rivers are a real problem, but the contribution made by new homes is very small. These laws which originate from Brussels put a block on new homes in certain areas – taking away control over what is built, and when, from local people. Read the Office for Environmental Protection’s response here: Proposed changes to laws on developments will weaken environmental protections, warns OEP.
Cornwall’s Climate Emergency Development Plan
UK100 | 23 August 2023
Cornwall Council has developed a Climate Emergency Development Plan to reinforce the existing Cornwall Local Plan and help accelerate and simplify the delivery of the Council’s Climate Change Action Plan. It comprises a range of policies from revitalising town centres and securing nature based solutions to increasing active travel and adapting to flooding and coastal change. Through this innovative approach, the plan is also pushing the envelope of what such policies can do to increase energy efficiency, laying a path for future progress in this critically important area.
Why councils need to be at the vanguard of net zero
The MJ | 15 August 2023
Niall Bolger talks to Ann McGauran about Hounslow LBC’s ambitious climate agenda and its crucial trial of a replicable model for creating low carbon energy communities.
Industrial News | 14 August 2023
MCS data shows that in the first six months of 2023, more than 120,000 certified solar panels, heat pumps and other renewable technologies were installed in UK homes, the highest number ever by this point in the year. The previous record for renewable installations was more than a decade ago in 2012, when households raced to get solar panels before cuts to the Feed-In Tariff incentive scheme kicked in.
Communities at the heart of new fund to boost local growth and energy security
Department for Energy Security and Net Zero | 11 August 2023
£10m fund to open in early Autumn and help deliver government’s ambitions to restore optimism and pride in local communities.
Delivering Value
The future of leisure services
The importance of leisure and cultural facilities has been in the spotlight in the discussion over the role preventative care and public health throughout the Covid-19 pandemic. Following central government relief packages during the depths of the pandemic that were welcomed nationally, authorities have entered into a new era of challenges in struggling to maintain provision with spiralling utilities (MPs say ‘no other option’ over leisure centre closures as massive energy bills bite - Oldham Chronicle (oldham-chronicle.co.uk)) and resource costs.
This coupled with the pressures on public expenditure will force some radical re-consideration of the role and the manner of service delivery in the coming years.
It was a pleasure to join SOLACE colleagues at a recent roundtable event to discuss the challenges facing leisure services in the local authority sector and to hear about some of the models being considered authorities nationally. Despite the alarming pressures being faced by the sector, authorities continue to seek innovative means to the face the challenges - Supporting community ownership of leisure and sports assets. The legacy of the Commonwealth games being one of the recent success stories in the sector - Sandwell's Commonwealth Games swimming pool opens to public.
Please do get in touch with our team if you’d like to discuss any issues being faced by your authority with your leisure project or if you’d like to find out about our future events in this sector, contact Kirtpal Kaur Aujla, Bethan Lloyd or Chris Harper.
Publications & Guidance
Building a Cyber Resilient Service: A Guide for Directors of Children’s Services
Local Government Association | 13 September 2023
The document is intended to get Directors thinking about the intricacies of cyber security in the context of delivering children’s services. It does not seek to produce a single, set blueprint. Due to the ever-changing nature of cyber threats, Directors and their senior teams should regularly review their cyber security practices and policies, while also looking at their capacity and capabilities to deal with them.
Early education and childcare: Changes and challenges for the future
Local Government Association | 30 August 2023
This policy paper was developed based on a range of discussions with stakeholders across councils to understand what local authorities believe they need to see change so they can effectively deliver on their sufficiency duty for early years education and childcare. It explores the challenges in the current system facing local authorities, providers and parents and it looks at what might work going forward.
School registers and national thresholds for legal intervention
Department for Education | 29 August 2023
The Department for Education has published the government consultation response on the outcome of the consultation on modernising school attendance and setting national thresholds for legal intervention.
Parental responsibility: guide for schools and local authorities
Department for Education | 24 August 2023
This guide has been updated to include guidance on the role of the 'corporate parent', releasing GCSE results to a parent and notifying separated parents about a child moving school.
Bridging accommodation exit plans for resettled Afghans
Home Office | 21 August 2023
This guide has been updated to include more information about interim accommodation for households with serious medical needs, including the evidence they need to provide, support they'll receive and when the interim accommodation provision will end.
UK government failing to protect disabled people, warns equality watchdog report
Equality and Human Rights Commission | 17 August 2023
The Equality and Human Rights Commission (EHRC) has warned of the consequences of continuing inaction from governments in addressing problems faced by disabled people. In a new report submitted to the United Nations (UN), the EHRC warns that many disabled people continue to face discrimination in the UK, and the situation continues to worsen, particularly in light of current cost-of-living pressures.
Ofsted warns against use of unregistered children’s homes
Ofsted | 14 August 2023
Ofsted has issued a fresh warning against the placement of vulnerable children, including those subject to deprivation of liberty orders, in unregistered children’s homes. New guidance makes clear that settings offering children’s home services for children subject to DoL orders should register with Ofsted in England or the Care Inspectorate Wales. The court order does not exempt the provider from being registered. Operating a children’s home without registration remains illegal.
News
Government to meet health experts to prepare NHS for winter
Department of Health and Social Care | 13 September 2023
The Downing Street session will see NHS leaders come together to discuss actions to improve care for patients and ease pressures on the health service.
Moody's warns of more council failures in 'the near term'
Local Government Chronicle | 13 September 2023
More local authorities will “fail over the near term” due to falling market value of commercial property, high inflation, interest rates and service demands, according to a report by Moody’s Investment Services.
Dwindling reserves leave authorities exposed to higher interest rates
Public Finance | 13 September 2023
Declining reserve and cash balances have restricted the use of internal borrowing and left authorities open to greater financing risks, experts have said.
Government delivers extra £50m home adaptation funding
Department of Health and Social Care | 7 September 2023
Money provided to local authorities so they can make quicker home adaptations for older people or those with disabilities, ensuring they can stay independent.
Statement regarding Section 114 notice
Birmingham City Council | 5 September 2023
Birmingham City Council has issued a s.114 Notice as part of the plans to meet the Council’s financial liabilities relating to Equal Pay claims and an in-year financial gap within its budget which currently stands in the region of £87m.
NHS doctors to receive pay rise this month
Department of Health and Social Care | 3 September 2023
Around 150,000 NHS doctors in England, including doctors in training and consultants, will start to receive their pay rise this month, backdated to April 2023.
Childcare settings receive cash boost as funding rates increase
Department for Education | 1 September 2023
Nurseries and childminders across the country will be paid more from for every government-funded hour they provide to parents.
Ofsted to conduct a thematic inspection of regional adoption agencies
Ofsted | 1 September 2023
Ofsted will visit six regional adoption agencies across the country as part of the inspection, which was commissioned by the government.
Call for 'urgent' investment in leisure services as sports strategy launches
Local Government Chronicle | 31 August 2023
The government’s new sports strategy “misses the chance to think creatively about investing new money in vital interventions”, warned the District Council Network’s spokesperson for health, housing and hardship.
Councils reject refugee housing fund
The MJ | 31 August 2023
Tens of millions of pounds of a fund designed to support English councils to obtain housing for those fleeing conflicts has not been taken up.
Legal powers given to Lucy Letby inquiry
Department of Health and Social Care | 30 August 2023
Health and Social Care Secretary Steve Barclay announces that the inquiry into the circumstances around crimes committed by Lucy Letby will become statutory. Also see: Government orders independent inquiry following Lucy Letby verdict
Flu and COVID autumn vaccine programmes brought forward
Department of Health and Social Care | 30 August 2023
Precautionary measure taken to protect those most vulnerable from illness during winter following the identification of COVID-19 variant BA.2.86.
One in ten SIGOMA councils facing Section 114 notice
SIGOMA | 29 August 2023
One in ten SIGOMA councils are considering making a Section 114 notice, a new report can reveal.
Fresh calls to raise local housing allowance as councils battle homelessness
The MJ | 23 August 2023
Fresh calls have been made for ministers to increase local housing allowance after research revealed 85% of English councils are facing an increase in homelessness.
More support for children with special educational needs
Department for Education | 23 August 2023
Over a thousand more children and young people with SEND are set to benefit from access to high-quality specialised learning, with seven new special free schools in Cambridgeshire, Kent, Merton and Norfolk selected to be built alongside the existing 83 already committed to opening, located across England from Devon to Darlington.
Pupils in disadvantaged areas to benefit from new free schools
Department for Education | 22 August 2023
Fifteen new free schools to open in areas where education outcomes are poorest to drive up school standards.
'More conversations around the future of leisure services'
Local Government Chronicle | 22 August 2023
As councils face "unprecedented budget challenges" there are more conversations happening about the future of leisure services, the chief executive of Community Leisure UK has said.
£250m to boost NHS capacity with 900 new beds
Department of Health and Social Care | 15 August 2023
Funding aims to relieve pressures on hospitals and help cut waiting lists, one of the government’s top five priorities.
Place & Growth
The RAAC Crisis
The return to school over the last month has been overshadowed by the Reinforced Autoclaved Aerated Concrete (RAAC) crisis.
In June we reported on the extension of the government’s inquiry into the use of RAAC to cover the entire public sector estate. The extent of the problem in schools is now clear, with approximately 156 school affected, many of which have been able to put mitigation measures in place to allow pupils back into school for the start of term.
Whilst the government school system has benefited from a national survey programme, other sectors are left wondering what, if anything, they should be doing.
A lightweight, low-cost and readily available material, RAAC was often used in the construction of low-rise, public sector buildings, such as schools, hospitals, offices, housing, leisure facilities and military buildings between the 1950s and the 1990s. The issue is not confined to the public sector however, with many of those buildings now transferred to the private sector.
The potential scale of the issue right across the country is challenging, given the number of buildings that need inspection. We are advising a number of clients across all sectors on RAAC on the following issues:
- the legal duties to protect the health and safety of those occupying or using buildings
- the duty to assess buildings for RAAC and to take the required actions where RAAC is found
- the consequences of failing in those duties
- information gathering for property portfolios so that buildings containing RAAC are identified as quickly as possible
- the instruction of technical surveyors to assess, on a risk basis, the extent of RAAC within buildings and the remedial works required
- the steps to be taken to mitigate against any action by the HSE or other regulator
- the potential for recovery of any remedial works costs
- the need to liaise with insurers and comply with policy requirements
- the importance of emergency preparedness
- in tenanted buildings, establishing the following:
- who is responsible for undertaking the necessary investigations, and does the person responsible have the necessary access rights to the building, and
- where responsibility sits for the undertaking and funding of any works identified as necessary by the technical investigations
- communications with employees, tenants, patients and the wider public.
Given the known vulnerabilities of RAAC, making it susceptible to structural collapse, we are urging all of our clients to consider this matter at senior management level with urgency.
If you require any support with these issues, please contact Adam Kendall, Melissa Stanford, Louise Mansfield, Louise Robling, Steven Eccles, or Judith Hopper.
Publications & Guidance
Levelling Up Committee Chair writes to Government on RAAC housing risks
UK Parliament | 12 September 2023
Clive Betts, Chair of the Levelling Up, Housing and Communities Committee has written to Lee Rowley, Parliamentary Under Secretary of State (Local Government and Building Safety) to request an update on the Department’s assessment of the risk of Reinforced Autoclaved Aerated Concrete (RAAC) in social and private housing.
Working for better roads: A call for the re-instatement of effective ring-fencing
All-Party Parliamentary Group for Better Roads | 12 September 2023
The All-Party Parliamentary Group for Better Roads has issued a report calling for central government to re-instate effective ring-fencing and multi-year settlements for local road maintenance. The report draws on a review of the Pothole Action Fund (2015/16-2020/21) demonstrating that it was a successful policy which contributed to marked improvements in the overall structural conditions on the local road network – but since its replacement gains made have been lost.
Pests and gas safety cases feature in latest Insight report as determination numbers rise
Housing Ombudsman | 12 September 2023
The Ombudsman has released its Insight report reflecting on the first quarter of this year, learning from pest infestation cases, gas safety and emerging trends from its frontline caseworkers.
Supported exempt accommodation (England)
House of Commons Library | 11 September 2023
An overview of the regulation of supported exempt accommodation and action to improve standards and oversight.
Letter from the Secretary of State to social landlords on damp and mould guidance
Department for Levelling Up, Housing and Communities | 11 September 2023
This letter to social housing providers informs them that the government has published guidance on the health impacts of damp and mould in the home.
School buildings and capital funding (England)
House of Commons Library | 8 September 2023
This briefing provides information on the different capital funding streams, and funding levels, for capital projects in English schools.
Housing Health and Safety Rating System (HHSRS): review outcomes and next steps
Department for Levelling Up, Housing and Communities | 7 September 2023
The outcomes of the review into the operation of the Housing Health and Safety Rating System.
The Supported Housing (Regulatory Oversight) Act 2023: debate in parliament
House of Commons Library | 7 September 2023
The Act is aimed at improving conditions in exempt supported housing. It came into force on 29 August 2023. This paper covers its progress through parliament.
Bridging hotels and homelessness for Afghan households research report
Local Government Association | 7 September 2023
To monitor homelessness pressures caused by the closure of bridging hotels for Afghan nationals, in August 2023, an online survey was sent to 44 councils in England with bridging hotels in their area. A total of 22 responded – a response rate of 50 per cent.
COVID business support fraud: Government slow to take action to recover estimated £1.1bn losses
UK Parliament | 6 September 2023
The Government has been slow to take action to recover losses to error and fraud in COVID grant schemes of over £1bn. A report published by the Public Accounts Committee finds that, three years on from the provision of £22.6bn in business support schemes in the pandemic, the Government had, by May 2023, recovered only £20.9m of an estimated £1.1bn in fraud and error losses.
Grenfell Tower site update September 2023
Department for Levelling Up, Housing and Communities | 1 September 2023
A summary of current activity at the Grenfell Tower site.
New guidance for schools impacted by RAAC
Department for Education | 31 August 2023
New guidance for education settings advises that any space or area with confirmed RAAC should no longer be open without mitigations in place.
Reinforced autoclaved aerated concrete (RAAC): management information
Department for Education | 31 August 2023
Data on confirmed evidence of RAAC and the mitigations in place in state-funded education settings.
Get Active: a strategy for the future of sport and physical activity
Department for Culture, Media and Sport | 30 August 2023
Building a healthier nation by tackling high levels of inactivity, and making sure that the sport and physical activity sector thrives for future generations. Read the Local Government Association’s reaction.
Give councils £100m investment fund to build homes for locals in tourist hotspots
Localis | 28 August 2023
Government should give councils direct long-term funding and planning powers to build affordable homes for local people currently priced out of the housing market in tourism hotspots, a new report from Localis has argued. In a report published entitled ‘Brightness on the edge of town: how Community Land Trusts can deliver affordable housing’, Localis calls on government to create a ten-year £100m Community Land Trust investment fund to deliver more social rent homes in rural areas overwhelmed by an explosion of second homes and short-term-lets through platforms such as Airbnb.
Consultation on the new safety regime for occupied higher-risk buildings
Department for Levelling Up, Housing and Communities | 17 August 2023
This page has been updated with the consultation analysis and government response to the following consultation sections:
- building assessment certificate
- principles for managing building safety risks and the safety case report
- mandatory occurrence reporting
- the residents’ engagement strategy, complaints, contravention notices, and providing residents with building safety information
- how the golden thread is stored and managed - golden thread principles
- enforcement
- reviews and appeals
Councils not doing enough to help victims of antisocial behaviour, Ombudsman says
Local Government and Social Care Ombudsman | 16 August 2023
People are suffering antisocial behaviour because councils are not thinking comprehensively about how they can tackle it, the Local Government and Social Care Ombudsman has said. The Ombudsman’s report reveals it has upheld nearly three-quarters (74%) of the cases it has investigated in the past year. Cases range from low-level issues such as dog fouling and inconsiderate parking to more serious sustained harassment and intimidation.
Funding for Levelling Up: government response to the Select Committee report
Department for Levelling Up, Housing and Communities | 10 August 2023
The government‘s response to the Levelling Up, Housing, and Communities Select Committee’s report on funding for Levelling Up.
News
Delays to planning fee increase continue to cost taxpayer £5m a week – councils
Local Government Association | 13 September 2023
Taxpayers will continue to subsidise planning services by almost £5m a week until the Government finalises measures to increase fees to cover the cost of processing applications, councils warn today.
Lords examines Levelling-up and Regeneration Bill
UK Parliament | 8 September 2023
The House of Lords continued its further examination of the Levelling-up and Regeneration Bill in report stage on Wednesday 6 September.
Regulator of Social Housing launches fees consultation
Regulator of Social Housing | 5 September 2023
This follows a government announcement that, from July 2024, social landlords need to pay for the full costs of regulation, in line with other regulated sectors.
Thousands more beds to help rough sleepers off the streets
Department for Levelling Up, Housing and Communities | 4 September 2023
£34.6m awarded across London and over 70 other areas to support rough sleepers.
Communities urged to apply for funding to save local institutions
Department for Levelling Up, Housing and Communities | 1 September 2023
Community Ownership Fund opens again for applications, giving local people the chance to seize back control of prized community assets.
Minister urges social landlords to open the door to childminders
Department for Education | 24 August 2023
Minister Coutinho writes to housing associations, social landlords and developers to urge them to allow childminders to work from their rented properties.
Councils across England running out of options as demand from households facing homelessness soars
Crisis | 23 August 2023
New research from the charity Crisis has revealed that nearly a quarter of a million households across England (242,000) are now experiencing the worst forms of homelessness, including sleeping on the streets, spending night after night on friends and families' sofas or stuck in unsuitable temporary accommodation like nightly paid B&Bs.
Governance & Reorganisation
Time to review your constitution?
The importance of a healthy constitution cannot be overstated. Whilst this is true physiologically speaking, we are of course talking about the body of rules and procedures which sets out how a local authority conducts its business.
Following the last round of local elections, many local authorities found themselves in a position of no overall political control, or where a previously weak opposition had become significantly stronger, gaining large numbers of seats overnight. Such changes can have multiple consequences, some of which are immediate, whereas others only reveal themselves over time. One consequence of the latter variety has seen members taking much more interest in their authority’s constitution, seeking to make use of its contents to challenge and drive forward their political agendas from a new position of relative strength. Whilst this is not of itself surprising, what is has done is to highlight those parts of constitutions which are lacking, outdated, or legally flawed, whereas previously these shortcomings may not have been highlighted (or noticed by anyone) due to strong political majorities driving the agenda and decision making processes.
This has resulted in a steady increase in authorities seeking our advice and support on interpretation, amendments, and substantive reviews.
In the shorter term making small amendments to constitutions can address problems as they arise. However, more often than not, this only acts to brush the wider issues under the carpet, leading to a piecemeal approach, and a reactive position on the part of governance lawyers. It can also result in conflicting provisions which cause further issues, whereas the constitution should be consistent and able to be read as one document.
Whilst undertaking a wholesale review and update of a constitution can be seen as a substantial and time consuming piece of work, the benefits of going through this process are multiple. For example, this can often galvanize political support for and understanding of the constitution, reducing challenge and enabling more effective and efficient decision making, freeing up resources for other purposes. It can also support greater transparency, and assist other stakeholders in their understanding of how the authority conducts its business.
Our team of experienced lawyers are regularly instructed to review and update local authority constitutions, and to advise on their interpretation. For help and advice on governance or reorganisation matters, please contact David Kitson, Philip McCourt, or Victoria Barman.
Publications & Guidance
The impact of voter ID: The views of administrators
Local Government Information Unit | 13 September 2023
This is a significant new research report on democracy in the UK from the LGIU’s Local Democracy Research Centre and funded by the JRSST-CT. Based on in-depth research with the people who run elections it raises serious issues with the UK’s electoral infrastructure, finding that voter ID has introduced a series of new pressures to a sector already under severe strain.
UK Government must act to ensure elections remain accessible
Electoral Commission | 13 September 2023
Challenges facing the electoral system present a significant threat to future elections, according to a new report from the Electoral Commission. With a UK general election due in the next 16 months, the Commission is calling for urgent action to eliminate barriers for voters and to mitigate risks to the delivery of elections.
The report on the May 2023 local elections in England identifies a number of challenges for voters, administrators and campaigners, which would be exacerbated at a general election. A significantly higher number of voters would be expected at a national poll, including those who do not tend to vote at local elections and are less likely to be familiar with recent changes.
Evaluation of Electoral Integrity Programme: public opinion research
Department for Levelling Up, Housing and Communities | 13 September 2023
This document reports the research findings on public views towards and experiences of voting. This report is part of the wider evaluation of the Electoral Integrity Programme, 2023. Read the accompanying press release here: Public opinion research demonstrates confidence in elections.
House of Commons Library | 11 September 2023
Recall allows voters to remove an elected representative between elections by signing a petition. This briefing explains how UK recall petitions work.
The 12 components of effective coalitions
Local Government Association | 5 September 2023
Drawn from our work supporting council that have transitioned to 'No Overall Control' (NOC), and developed by Dr Stephanie Snape, this guidance framework outlines the 12 key components of effective coalitions and includes a development tool for councillors, officers and regional teams to use in developing their own local arrangements.
Levelling Up and Regeneration Bill, Report Stage, House of Lords, 4 September 2023
Local Government Association | 54 September 2023
The Government has proposed to speed up the process and make good on its commitment to offer all of England the opportunity to benefit from a devolution deal by 2030. It is also important that councils of all sizes are engaged in the devolution process.
Barriers to data sharing between DLUHC and local councils
Department for Levelling Up, Housing and Communities | 14 August 2023
Research to understand the barriers that local councils face which prevent them from participating in data sharing initiatives.
News
Four-day week at South Cambridgeshire set to expand
Local Government Chronicle | 13 September 2023
South Cambridgeshire DC plans to continue a 12-month four-day week trial, which will expand to include waste collections next week, despite the local government minister calling on the council to stop the programme.
Clearing audit backlog requires “uncomfortable trade off”
Public Finance | 11 September 2023
Qualified opinions on historical council accounts are likely if the government waives some reporting requirements as it strives for a “system reset”, which it currently plans to do, a senior civil servant has said.
The MJ | 11 September 2023
Gary Fielding hopes the Government’s proposed changes to the external audit regime are seen as the first step in getting to grips with firms and their role in ensuring good governance.
Local Government Lawyer | 8 September 2023
The Government has agreed to ensure ministers understand that providing timely and good quality explanatory documents with legislation is "vital in facilitating parliamentary scrutiny", following two years of sustained criticism from the House of Lords Secondary Legislation Scrutiny Committee.
County Councils Network | 4 September 2023
England’s largest councils today call for the government to ‘fast track’ more devolution deals in county areas to kick-start an adult education revolution, with the number of people taking part in adult education and apprenticeships falling by a fifth.
Districts call for guidance to make clear government intervention will only be “last resort”
Local Government Lawyer | 1 September 2023
District councils have said Best Value guidance should make it clearer that Government intervention will be used only as a last resort where an authority is in difficulties. The District Council Network (DCN) said in its response to the Government’s consultation on statutory guidance on the Best Value duty, that this overall achieved the right balance and set out both “the hallmarks of best value and identifies indicators of potential failure”.
NALC and LGA invite more local councils to participate in corporate peer challenge
Local Government Lawyer | 18 August 2023
The National Association of Local Councils (NALC) and the Local Government Association (LGA) are to invite a further tranche of local councils to participate in a corporate peer challenge in the current or next financial year.
Select committee report to consider accountability weaknesses
The MJ | 17 August 2023
Weaknesses of the current system of accountability available to local authorities will be considered in a forthcoming select committee report, it has been confirmed.
Contract Management
High Court awards substantial damages to customer in delayed IT Contract
The recent case of Topalsson v Rolls-Royce raises issues that are likely to be familiar to those who scope, procure and ultimately manage large IT services contracts including: delayed delivery, missed milestones, where the fault for the delay lie, the difficulties involved in identifying which document amounts to the contractual implementation or project plan, and when and on what ground to terminate.
The consequences of getting things wrong (on both the customer and supplier side) can be very serious. So what can we learn from this case?
Background
In 2019, Topalsson agreed to develop and supply to Rolls-Royce software for a new car configurator. The contract provided that Topalsson would “deliver the Deliverables… on time and in full by any applicable milestone or delivery date” and that “time shall be of the essence”. The contract incorporated a “high level project roadmap” which provided that Topalsson would achieve certain steps by certain quarters (eg. “web configurator” by partway through Q2 2020). In December 2019 (shortly after the contract was signed), the parties agreed a “plan” which set out the dates by which Topalsson would achieve certain steps (the first of those being in March and early April 2020). However, in March 2020, the parties agreed revised dates including new dates for certain “Technical Go Live” milestones.
In mid-April 2020, Rolls-Royce purported to terminate the contract on the basis that Topalsson had failed to meet the milestone dates set out in the plan agreed in December 2019. Topalsson rejected the termination notice and affirmed the contract. So Rolls-Royce tried again – in late April 2020, Rolls-Royce served a second termination notice this time relying on Topalsson’s failure to achieve the dates set out in the plan agreed in March 2020. In May 2020, Topalsson stopped all work on the project telling Rolls-Royce that Rolls-Royce’s attempt to terminate the contract was unlawful and amounted to a repudiatory breach of the contract which entitled Topalsson to treat the contract as at an end.
Topalsson then sued Rolls-Royce for repudiatory breach of the contract seeking €6m in damages for lost profits or alternatively €2.5m for work undertaken but not paid. Rolls-Royce counter-claimed seeking €20m in damages for loss including wasted staff time and the cost of sourcing replacement software.
The Court’s decision
The Court determined that:
- The high level project roadmap in the contract did not contain any contractual milestones/delivery dates because the plan was labelled “high level” and “anticipated timeline” and did not include specific dates (days and months), and the contract referred to the dates in that plan as estimated dates which needed to be refined.
- Topalsson was under a contractual obligation to comply with the December plan, which was then superseded by the March plan.
- The contract was clear that time was of the essence regarding Topalsson’s obligation to deliver the service by the delivery dates. This meant the delivery dates were conditions. A breach of a condition is a repudiatory breach that entitles the other party to terminate the contract under common law.
- While “Technical Go Live” was not defined in the contract, parts of the contract were clear that Technical Go Live meant the solution had been delivered, installed, passed Systems Integration Testing and User Acceptance Testing, and be on the production environment that had gone live.
- Topalsson had failed to achieve Technical Go Live under the March Plan by the dates set out in that plan. Topalsson’s ability to meet the deadlines was not impeded by Rolls-Royce – in other words, the delay was not Rolls Royce’s fault.
- The first Termination Notice was invalid because it relied on the deadlines in the December Plan, which had been superseded by the March Plan.
- The second Termination Notice was made after the contract had been affirmed by Topalsson, and referred to the March Plan and entitled Rolls-Royce to terminate the contract (under the terms of the contract, or under common law for repudiatory breach).
The Court held that Rolls-Royce was entitled to damages up to the contractual limit of €5m plus interest for the loss caused by Topalsson’s repudiatory breach of the contract.
The full judgment (which was handed down in July 2023) can be found here.
What can we learn from this?
The judgment contains some valuable learning points for both customers and suppliers of software / IT contacts, which include:
- If you require the other party to be achieve milestones on time, ensure the dates are exact – ie. day, month and year.
- If the contract includes a process for agreeing a detailed implementation or project plan, ensure that plan is agreed early on, as there is a risk that a high level or outline plan (if included in the contract) may not have contractual force. Keep the plan under constant review and, if necessary, agree and properly document those changes via the contractual variation or change control process.
- Ensure terms, particularly regarding milestones, such as “go-live”, and “technical go-live” are clearly defined.
- Have full and frank conversation prior to entering into the contract, to ensure, whenever possible, both parties are confident and fully invested in the development method chosen (in this case, Topalsson alleged that Rolls-Royce’s decision to adopt a waterfall (and not an agile) method led to delay).
- Make sure that you rely on the correct grounds when exercising your rights to terminating the contract. If you rely on an incorrect ground, the other party can treat this as a repudiatory breach, terminate the contract, and claim damages from you. Further, it is very important to consider whether to rely on a contractual right and/or a common law right to terminate, as this may impact the measure of damages you can claim.
- Consider whether the contract includes a “time of the essence” clause, and whether that works in your favour.
- Ensure you are complying with your own obligations in order that you can rebut any attempt by the other party to blame you for any delay.
These learnings are just as relevant to local authorities as they are to private sector clients.
How we can help
Our specialist team of technology lawyers advise and support clients in a wide range of sectors on the procurement, delivery and management of ICT projects and systems both on the customer and supplier side, helping to avoid the sorts of issues that arose in this case.
If you have a new project that requires a contract or are in the middle of a project and need support with contract management, our Technology Commercial team can help. Please contact Liz Fletcher.
If you have a project that is going wrong (or has already gone wrong), we can help with that too – our specialist technology disputes lawyers have substantial experience in disputes relating to IT architecture, hardware supply and maintenance, data centre and hosting agreements, software and licensing arrangements, telephony services, and IT consultancy, including issues around projects delays, missed milestones, missing functionality, and demands for additional charges. Please contact Wesley O'Brien.
Publications & Guidance
PPP arrangements: guidance on accounting for indexation linked payments
HM Treasury| 22 August 2023
The Treasury has published guidance which advises on the accounting treatment of payments linked to a price index for on-balance sheet public-private partnership (PPP) contracts from 2023/24. It advises that entities should record index linked payments in PPP liabilities in accordance with IFRS 16 from 2023/24.
News
Lords asks Commons to think again on Procurement Bill
UK Parliament | 12 September 2023
The Procurement Bill returned to the Lords for consideration of Commons amendments in ‘ping pong’, on Monday 11 September.
High Court dismisses procurement challenge brought by group of sub-contractors over lack of standing
Local Government Lawyer | 11 September 2023
A High Court judge has dismissed an appeal brought by sub-contractors of Camelot over the lottery operator’s loss of a contract, cementing an earlier decision that found the sub-contractors did not have the standing to bring the procurement challenge. The proceedings in International Game Technology PLC & Ors v Gambling Commission (No. 2 - Consequentials) [2023] EWHC 2226 concerned a procurement challenge arising from the competition for the fourth licence to run the National Lottery, which commenced in 2020.
Learning the lessons from Ofcom’s recent competition law decision on information exchange
Ofcom | 5 September 2023
Earlier this year we published Ofcom’s final decision (PDF, 3.2 MB) in a competition case, which resulted in us fining Sepura £1.5m for breaching competition law. This came after the company exchanged competitively-sensitive information with its competitor Motorola, during a procurement process. In this article, we shine a light on some of the important legal issues the case raises.
Disputes & Regulatory Support
Compliance with the Public Sector Equality Duty in the context of offers of accommodation
In the case of Webb-Harnden v London Borough of Waltham Forest [2023] EWCA Civ 992 the appellant, Ms Webb-Harndon, was a single mother with three children who became unintentionally homeless and was in priority need. The London Borough of Waltham Forest, the respondent, had offered her accommodation in Walsall under the Housing Act s.193(2). Ms Webb-Harndon requested a review of this offer, saying her support network was based in London, and she had been treated unfairly because she was subject to a limit on welfare benefits. The reviewing officer (RO) upheld the decision.
After the county court dismissed the appeal, Ms Webb-Harndon appealed to the Court of Appeal. She argued the RO had failed to have due regard to certain matters in s.149 of the Equality Act 2010 (ie. the need to eliminate discrimination and advance equality).
In dismissing the appeal, the Court noted that the RO was aware of the need to have regard to s.149, indeed she had set out its terms and referred to it. She had considered all matters raised by Ms Webb-Harndon, including the impact of moving away from support networks, and affordability (considering the benefits cap). The RO had also assessed the possibility of providing accommodation closer to London and the adverse consequences of accommodation in Walsall, but concluded that the offer was reasonable and suitable; in reaching that decision, she had fulfilled the obligations under s.149. It was relevant that there was no suitable three-bedroomed properties available in London and in any event Ms Webb-Harnden would have been unable to afford such properties.
Finally, in the circumstances, the Council was not obliged to offer temporary accommodation, in case other suitable accommodation in London became available in the future. The RO’s decision that the offer of a fixed term tenancy brought its s.193(2) duty to an end was lawful and correct.
This case reinforces that it is generally difficult to succeed in a PSED challenge provided the authority has considered and taken into account equalities considerations. Should you have any queries in respect of the issues raised in this case, please contact Olivia Carter or Hannah Bergin.
Publications & Guidance
Administrative Court Judicial Review Guide 2023
Courts and Tribunals Judiciary | 8 September 2023
The 2023 edition reflects legislative and practice changes relevant to the Administrative Court over the last year. It includes guidance on:
- litigants in person
- civil restraint orders
- starting a claim
- applying for permission for judicial review
- specific practice points
- urgent cases
- substantive hearings
- remedies
- case management
- costs
- appeals
News
Council halts work on RAF Scampton
The MJ | 8 September 2023
West Lindsey DC has ordered the Home Office to stop work to convert a former military base into accommodation for asylum seekers.
“Urgent” tests on 1990’s court buildings ordered over RAAC fears
Local Government Lawyer | 7 September 2023
The Government has ordered tests on courts built in the 1990s after “dangerous concrete” was found at Harrow Crown Court, according to the BBC.
Local Government Lawyer | 6 September 2023
In CC (A Child), Re [2023] EWHC 2179 (Fam), a judge has refused a local authority’s application for authorisation of arrangements which have resulted in a teenage girl being deprived of her liberty whilst residing at a children's home.
Local Government Lawyer | 6 September 2023
A High Court judge has decided not to extend the suspension of an order quashing a deal brokered between the Home Secretary and Kent County Council that capped the number of unaccompanied asylum-seeking children (UAS children) the council had to accommodate.
Home Office defies high court by placing 100 asylum-seeker children in hotels
The Guardian | 1 September 2023
The UK Home Office has placed more than 100 lone asylum-seeker children in hotels in recent weeks, despite the practice having been found unlawful by the high court.
Offenders to be ordered to attend sentencing
Ministry of Justice | 30 August 2023
Criminals who try to evade the final moment of justice will be ordered into the dock to attend their sentencing – and will face longer behind bars if they refuse to appear.
Local Government Lawyer | 24 August 2023
The Court of Appeal has dismissed a single mother’s appeal against a decision of a reviewing officer of the London Borough of Waltham Forest, finding that the accommodation offered to her was “reasonable and suitable”.
Lord Justice Lewis found that the reviewing officer “did have due regard” to the matters specified in section 149 of the Equality Act 2010 in deciding that the offer of accommodation was a “reasonable and suitable offer” and that the decision of the council to discharge its duty under section 193(2) of the Housing Act 1996 by arranging that offer was “lawful and correct”.
Court of Protection judge declines to order dialysis for autistic man (localgovernmentlawyer.co.uk)
Local Government Lawyer | 23 August 2023
In Nottingham University Hospitals NHS Trust v JM & Anor [2023] EWCOP 38, a Court of Protection judge has declined to order dialysis for an autistic man lacking capacity, concluding that forced restraint either in the face of his expressed opposition or at a time when he is no longer able to resist, would “compromise his dignity”.
Court of Appeal dismisses appeal over whether hostel room was “suitable accommodation”
Local Government Lawyer | 23 August 2023
The Court of Appeal has dismissed a woman’s appeal against a decision that a room in a hostel was "suitable" accommodation for her to continue to occupy. Lord Justice Newey found that the review officer “was entitled to conclude that Room 7 was ‘suitable’ and, accordingly, that the relief duty came to an end pursuant to the Housing Act 1996”.
Council fails in Upper Tribunal appeal over mentoring support during non-term time periods
Local Government Lawyer | 21 August 2023
In Westminster City Council v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC), he Upper Tribunal has found that a decision made by the First-tier Tribunal regarding autism mentoring support during non-term time periods did not involve an error on a point of law.
Local Government Lawyer | 17 August 2023
A councillor did not show bias by voting for a planning application by an NHS trust where he was a governor, the High Court has found.
In Webb, R. (On the Application Of) v London Borough Of Bromley [2023] EWHC 2091 (Admin) Mr Justice Lane also found that although Cllr Anthony McPartlan’s wife Billie was a patient governor serving alongside him at King's College Hospital NHS Foundation Trust, bias still did not arise.
Local Government Lawyer | 15 August 2023
The Court of Appeal has granted a disability rights campaigner permission to appeal in her ongoing legal challenge against the Secretary of State for Transport regarding guidance on the use of tactile paving.
Families issue legal claims against Health Secretary over care home and hospital COVID-19 deaths
Leigh Day | 19 August 2023
Families whose loved ones died in care homes and hospitals in the early weeks of the COVID-19 pandemic have issued legal claims in the High Court against the Health Secretary, individual care homes and Hospital Trusts.
Resources Library
Data Matters - September 2023 - Bevan Brittan’s Information Law and Privacy Update
National Pensions Week – What our two new Trainee Solicitors have learnt
Health and Care Update Care - Policy and law relevant to those involved in health and social care work
Pensions Not Podcasts - The McCloud remedy | Bevan Brittan LLP
Talking Heads Series:
Talking Heads: Essential key points about the Procurement Act - Part four
Talking Heads: Essential key points about the Procurement Act - Part three
Talking Heads: Essential key points about the Procurement Act - Part two
Talking Heads: Essential key points about the Procurement Act - Part one
All Bevan Brittan articles and news
Events
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3 October, 12:30 – 1:30 pm
Health and Safety considerations for construction on Health and Social Care sites
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5 October, 12:30 – 1.30 pm
Distinguishing unwise decision-making from lacking capacity
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19 October, 12:30 – 1:30 pm
Case Law Update – Mental Health Act 1983
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31 October, 12:30 – 1:30 pm
Inquest Update
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9 November, 12:30 – 1:30 pm
Special Educational Needs and Disabilities Snapshot
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When might mediation be helpful in the Court of Protection context?
