28/02/2024
Welcome to the February 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
Are you taking part in National Empty Homes Week?
Next week will see many local authorities supporting the national campaign to bring empty homes back into use. The annual Empty Homes Week takes place during 4 - 10 March and enables councils to showcase actions which have brought empty homes back in to use.
Data issued by DLUHC identifies that there were over 676,000 empty properties listed in 2022, with more than 248,600 of these being classed as long-term empty. There’s no doubt that these empty properties have both a negative impact on communities and reduce the availability of homes for those in need. However, with councils continuously seeking ways to stretch limited finances, reducing empty home levels can provide a meaningful way to both improve communities and assist with revenue regeneration.
There are many components available within a council’s empty homes toolkit including:
- recovery of unpaid council tax
- enforced sales where a local authority has had to undertake works to a property using one of its various statutory powers
- unpaid care home fees where the owner has passed away and the estate is not being administered by anyone,
- and compulsory purchase.
Where an empty home is sold and brought back into use, this often results in a council recovering all debts owed to it including all costs of enforcing the sale. There is also the possibility of claiming the New Homes Bonus from central government for each property brought back into use. The council would also benefit from future council tax going forwards not forgetting the positive impact on the area local where the property is situated.
If you are seeking to improve the homes in your community, contact us to see how we can assist with enhancing your empty homes toolkit.
Net Zero
Heat Network Zoning
Heating is responsible for about 20% of the UK’s greenhouse gas emissions. Meeting our net-zero target will require the decarbonisation of virtually all heat in buildings and decarbonising heat is a key part of the government’s strategy.
The government has identified that heat networks are an essential part of the path towards decarbonising heat, enhancing energy security and achieving net zero by 2050. Heat networks currently provide about 3% of total UK heat but heat networks could provide up to 20% of total UK heat by 2050.
The government (through DESNZ) is intending to introduce “heat network zoning” in England, whereby central and local government will work with industry and local stakeholders to identify and designate areas where heat networks are expected to be the lowest-cost solution to decarbonising heat. Certain areas are expected to be particularly suited to heat networks due to a range of factors such as building density and availability of heat sources.
Having undertaken an initial round of consultations, DESNZ is undertaking various pilot programmes to inform the development of a national methodology for heat network zoning. Further consultation is taking place and DESNZ envisages having heat zoning regulations in place by spring 2025. It is envisaged that there will be:
- an England-wide methodology for identifying and designating areas as heat network zones
- a new Zoning Coordinator role, which is expected to be fulfilled by local government, with responsibility for designating areas as heat network zones and enforcing requirements within them
- a Central Authority to oversee zoning at a national level and support the local Zoning Coordinators;
- requirements that heat networks developed in zones meet a low carbon target
- requirements for certain buildings and heat sources to connect to a heat network within a designated zone within a specific timeframe with indications of when and how such buildings may seek an exemption from this requirement
- clarification of which types of building in zones, such as new buildings, can be required to install communal heat networks
- requirements on operators/owners of sources of heat to provide information, and/or to connect to a heat network
- rules around pricing structures and emissions
- enforcement and appeals processes.
In support of achieving the heat network zooming goals, the existing Green Heat Network Fund has been allocated a further £485m over 2025/26 to 2027/28 which extends the scheme across these two years and the Heat Network Efficiency Scheme has been allocated a further £45m over the same period.
Local authorities should therefore consider:
- the importance of growing the heat network market within the areas they are responsible for;
- the likelihood/suitability of any areas within their control as being designated as heat network zones;
- what resources are available to carry out the zone coordinator role and what resources need to be acquired; and
- to initiate communications with external stakeholders in both the public and private sector who will be affected by the implementation of any regulations.
We have extensive knowledge of heat networks across the UK having provided legal and commercial advice on over 100 heat network projects in recent years, including advising on three of the zoning pilot projects.
If you would like to know more about heat networks and zoning, please do get in touch with one of our Energy and commercial specialists Nadeem Arshard, Nathan Bradberry or Rupert Lugg.
Publications & Guidance
Environment Agency: reaching net zero update (January 2024)
Environment Agency | 31 January 2024
The Environment Agency (EA) has published a report on its new goal to reach organisational net zero by 2045 to 2050. In light of the revised SBTi net zero definition, the EA will rely less than originally planned on offsetting, and will use only UK nature-based offsets, meaning it will be unable to reach its original goal to become net zero by 2030. Instead, the EA has decided to increase it emissions reduction target to 90% between 2045 and 2050 and to amend the timeframe for it to achieve net zero.
As of 2024, the EA are also setting out additional interim goals on their net zero journey. The delivery date range of 2045 to 2050 will enable them to meet net zero date sooner as innovation continues to come forward.
Heat resilience and sustainable cooling Fifth Report of Session 2023–24 Report
House of Commons Environmental Audit Committee | 31 January 2024
The House of Commons Environmental Audit Committee (the Committee) commend the UK Government on being among the first signatories of the Global Cooling Pledge (GCP), which represents a significant step forward in terms of heat resilience and sustainable cooling, and is a welcome demonstration of international leadership in this area. In particular the Committee note the commitment under the GCP to produce a national cooling action plan. The Committee hope their inquiry and the findings set out in this report assist in shaping what this looks like and they remain keen to continue to work constructively with all relevant Departments on this topic. In response to this report, the Committee expect the Government to set out a clear and achievable timetable for the introduction of a UK national cooling action plan as required by the GCP.
Heat pump applications up by almost 50% as families make the most of government grant increase
Department for Energy Security and Net Zero | 26 January 2024
New figures show applications to the government's Boiler Upgrade Scheme in December jumped by 49% compared to the same month in 2022.
Report: The government’s support for biomass
National Audit office - Department for Energy Security and Net Zero | 24 January 2024
The purpose of this report is to support Parliament’s understanding of the conditions in which the government considers biomass as a sustainable, low-carbon alternative to fossil fuels.
The report examines:
- the current role of biomass in generating heat and power, and the responsibilities in government for biomass;
- the government schemes currently in place to support the deployment of biomass, how much they have cost, and how the government makes sure scheme participants meet sustainability criteria,
- the main features of DESNZ’s Biomass Strategy.
Industrial Energy Transformation Fund (IETF) Phase 3: Spring 2024 - How to apply
Department for Energy Security and Net Zero | 22 January 2024
The Industrial Energy Transformation Fund (IETF) supports industrial sites with high energy use to transition to a low carbon future. The fund targets existing industrial processes, helping industry to:
- reduce energy consumption by investing in more efficient technologies; and
- reduce emissions by bringing down the costs and risks associated with investing in decarbonisation technologies.
Funding is allocated through a competitive process aimed at supporting the highest quality and most transformational bids. The fund is open to a broad range of industrial sectors and will support lead applicant sites based in England, Wales, and Northern Ireland, both within and outside of industrial clusters.
News
Council for Net Zero Transport to steer UK transport decarbonisation
Fleetworld | 01 February 2024
A new Council for Net Zero Transport comprising senior stakeholders has launched in the UK to steer the decarbonisation transition as it moves into the crucial delivery phase. Convened by Zemo Partnership, the council will be chaired by Lord Deben, formerly UK Environment Secretary and chair of the Climate Change Committee. It will engage senior figures from government, industry, environment and academic sectors to enable collaboration on a clear, strategic direction for road transport decarbonisation.
Funding secured for Wales’ industrial decarbonisation plan
Energy Live | 31 January 2024
Net Zero Industry Wales (NZIW) has secured a total of £1.1m, including a £711,000 grant from Innovate UK, to develop the North East Wales Industrial Decarbonisation (NEW-ID) plan. The NEW-ID plan will identify decarbonisation measures, formulate a delivery plan for substantial emissions reduction by 2030 and outline steps for strong cluster management.
British Chambers of Commerce pushes Government for clearer, more ambitious net-zero pathway
Edie | 30 January 2024
The British Chambers of Commerce (BCC) is calling on Ministers to accelerate the UK’s net-zero transition, framing this as an opportunity for innovation and economic growth.
Devon and Torbay devolution deal announced
The MJ | 25 January 2024
The new body will receive £14.8m from the Shared Prosperity Fund over three years, as well as £16m in new capital funding to support housing and net zero priorities; and will have greater collaboration with Homes England to ‘reduce the barriers to affordable housing delivery’.
CLC publishes response to government’s infrastructure and construction pipeline plans
Construction Leadership Council | 25 January 2024
The CLC (Construction Leadership Council) has published a response to the government’s construction policy framework, ahead of the Spring Budget 2024. Several recommendations have been presented to the Chancellor, with the aim of preserving and growing UK infrastructure and housing. The recommendations presented by the CLC are primarily focused on housing, infrastructure and environment.
Department for Energy Security and Net Zero | 25 January 2024
Homes and businesses to benefit from greener, low-cost heating as four new Green Heat Network projects receive a share of £80.6m.
- £80.6m to develop greener, low-cost heating systems in four new projects across England;
- nearly 2,000 homes and businesses to be powered by excess heat taken from a sewer;
- more than £8m will upgrade inefficient heat networks to reduce bills and improve reliability.
Press release: More support for industry to cut emissions and energy bills
Department for Energy Security and Net Zero | 22 January 2024
Over £190m will be made available to help industry in the transition to net zero, reducing emissions as they switch to cleaner, cheaper energy.
- Twelve winning projects will bring together local partners and develop plans to cut manufacturing emissions, with up to £6m in government support;
- up to £185m available for the next round of the Industrial Energy Transformation Fund, with even more sectors eligible to apply;
- funding will support businesses reduce emissions and bills by making the switch to cleaner energy, helping to meet the UK’s net zero goals.
Delivering Value
Developments in Good Faith and Reasonableness
Case law developments in 2023 have provided further direction and key findings when it comes to the Court’s position on implied terms such as good faith and the reasonableness of exclusion clauses under the Unfair Contract Terms Act 1977.
The current trend seems to be that Courts are less likely to find that implied terms of good faith apply in contracts. These will only be implied in relational contracts under limited circumstances. Following Phones 4U Ltd (In Administration) v EE Ltd and others [2023] EWHC 2826 (Ch), it is clear that the Court will focus on the commercial, practical reality between the parties. Emphasis on the professional drafting and negotiation between sophisticated parties highlights the Court’s reluctance to interfere and their narrow interpretation of any express obligations already included in the contract. The message remains then that if parties want to include good faith, they should include carefully crafted express obligations against each relevant provision and may want to consider including examples of good faith behaviour as a guide.
There has also been a recent increase in litigious challenges to exclusion and limitation clauses. In Pinewood Technologies Asia Pacific Limited v Pinewood Technologies Plc [2023] EWHC 2506 (TCC) the Court determined that an exclusion clause for ‘indirect or consequential loss’ and ‘loss of profit’ was reasonable as the relevant contract had been subject to substantial negotiations and was not on either parties standard terms. The Court also stated that there is no bar on an exclusion or limitation clause applying to non-performance or repudiatory breaches of contract.
Similarly, in Last Bus Ltd (t/a Dublin Coach) v Dawsongroup Bus and Coach Ltd [2023] EWCA Civ the Court of Appeal also considered the issue of negotiation in the context of bargaining power. Here, the Court determined that an exclusion clause was unreasonable because the parties did not have the opportunity to negotiate, despite having equal bargaining power. The Court noted that bargaining power is about more than just ‘financial clout’ and the principle must be considered in its entirety, meaning considering whether they had a chance to negotiate the terms and if others were available on the market. It also highlights that where an exclusion clause leaves a party without any remedy, it is likely to be unreasonable. The message here is that any exclusion clauses included in standard terms should be shored up and negotiated individually in order to avoid being challenged as unreasonable.
In summary, the long standing principal that drafting needs to be clear, unambiguous and provide enough detail to support the parties’ intentions still stands. Parties should not leave anything to chance when drafting and should consider the practical implications of all outcomes to avoid any unwanted implied terms or challenges to exclusion/limitation clauses.
Please do not hesitate to get in contact Kirtpal Kaur Aujla or Judith Hopper, contract law specialists, if you have any queries over the issues discussed in this article.
Legislation
Health Protection (Notification) Regulations 2010: proposed amendments
Department of Health & Social Care | 7 February 2024
The consultation received 151 responses. This included responses from a range of organisations, such as local authorities, bodies representing healthcare professionals, charities and NHS trusts. During the consultation process, a webinar on the proposals was held with over 200 stakeholders. There were a range of viewpoints shared on the 3 proposals outlined in the consultation. Overall, respondents generally agreed that the Health Protection (Notification) Regulations 2010 should be updated, citing benefits of improved public health protection and surveillance of disease.
Publications & Guidance
Councils reduce library and culture spend by almost £500m since 2010, new analysis shows
County Councils Network | 2 February 2024
Council spending on libraries, culture, heritage and tourism has reduced by almost £500m since the onset of austerity, a new analysis shows. New analysis from the County Councils Network (CCN) found that in 2010-11 – the beginning of austerity – councils in England budgeted to spend almost £1.6m on library services, culture, heritage, and tourism. Their latest accounts for 2023-24 reveal spending has decreased by £470m over the last fourteen years, with local authorities budgeting to spend just over £1.1bn on these cultural services. Councils say they know the value – both economically and socially – of these cultural services, but have been ‘unable to avoid’ reducing support for them. With the average upper-tier council spending two-thirds of its budget on social care services – a trend higher for county local authorities – the last decade has seen scarce resource for cultural services focus on this rising demand for care services.
Adult social care in England, monthly statistics: February 2024
Department of Health & Social Care | 1 February 2024
This is a monthly publication by the Department of Health and Social Care (DHSC) of official statistics on adult social care in England. This statistical bulletin provides an overview on a range of information on social care settings, with a focus on the impact of COVID-19. Data used in this publication is taken from Capacity Tracker. Capacity Tracker is a web-based digital insight tool originally developed by NHS England and the Better Care Fund to enable the system to better manage hospital discharges by identifying available capacity in care homes.
South Yorkshire agrees next step for airport reopening
Public Finance | 13 February 2024
Plans to reopen Doncaster Sheffield Airport have taken another step forward, with City of Doncaster Council set to develop a full business case that could unlock up to £138m of development funding.
MPs: Fujitsu awarded £1.4bn in government contracts post-Horizon ruling
Public Finance | 12 February 2024
Three public bodies held more than £3.4bn worth of contracts with Fujitsu following a 2019 High Court ruling, with more than a third approved after a judge found that the Post Office Horizon system was flawed, the Treasury Committee has said.
Consultation launched on agency rules for local authority children’s social care
Local Government Lawyer | 6 February 2024
The Government has launched a consultation on new statutory guidance for the use of agency social workers by local authority children’s services. The guidance provides a legal framework for local authorities to follow to ensure that everyone involved in the hiring of agency social workers is “aware of their responsibilities”, said the Department for Education (DfE). The four-week consultation was issued on 31 January 2024, is now closed.
Ofsted | 6 February 2024
In September 2023, Ofsted announced that they would remove all schools included in the Department for Education’s published list of education settings affected by RAAC from their autumn term inspection schedule. This spring term, a school that has confirmed RAAC in some of their buildings will be eligible for Ofsted inspection, however this will be sufficient grounds to defer the inspection, should the school wish to.
National specialist shortage having profound impact on children with SEND and their families
Local Government & Social Care Ombudsman | 1 February 2024
The Ombudsman is highlighting the recruitment difficulties faced by councils in a report on a complaint from a Surrey family who experienced significant delays trying to get an Education, Health and Care (EHC) Plan put in place for their autistic daughter. During the Ombudsman’s investigation, Surrey County Council said it had a backlog of around 1,000 EHC needs assessments awaiting input from an educational psychologist. The council blamed a national shortage of qualified psychologists and other key professionals who informed the EHC Plan process.
Local Government Lawyer | 31 January 2024
The number of tribunals for people appealing against local authority decisions about Education, Health and Care Plans (EHCPs) for children with special educational needs has hit an “all-time high” of 13,700, according to the latest Ministry of Justice data. The Children’s Commissioner, Dame Rachel De Souza, has warned this is “further delaying children from accessing the vital support they need”. The MoJ statistics show that in the academic year 2022/23, HMCTS tribunals recorded 14,000 registered SEN appeals, an increase of 24% when compared to the previous year. Since 2014, the number of appeals has increased every year.
Home Secretary underlines commitment to cut net migration
Department of Health and Social Care | 30 January 2024
Measures to transform the UK’s legal migration system, bolster border security and drive down unsustainable and unfair levels of migration will come into force within weeks, the Home Secretary has announced. It comes after the Prime Minister and Home Secretary set out a major new package of reforms in December, delivering the biggest ever reduction in net migration and tackling exploitation across the immigration system. The robust changes, which will curb abuse of the migration system, and ensure those choosing to make the UK their home can afford to do so, will begin to come into effect as early as March and will mean 300,000 people who came to the UK last year would now not be able to come.
Ombudsman finds council placed homeless disabled child too far from school
Local Government & Social Care Ombudsman | 25 January 2024
The Local Government and Social Care Ombudsman (LGSCO) has ordered Wandsworth Council to pay compensation to a homeless and disabled mother for placing her in accommodation which was too far from her disabled child’s school. Initially, the mother was placed in an unsuitable flat which was difficult to access. The family was then placed in accommodation which was far from the school named in the child’s Education, Health and Care (EHC) Plan. The school raised concerns over the child’s attendance and the impact of the consequently longer days on the child. Although the mother was offered another more suitable accommodation in November 2022, it was not ready for the family to move into until May 2023. Investigating into this matter, the LGSCO saw significant delays by the council, failure to assess the family’s housing needs, property suitability and failure to ask about the child’s EHC Plan when determining where to place the family. Wandsworth Council agreed to apologise to the mother and pay her £10,000 as well as a further £3,800 for additional transport costs in reaching her child’s school.
Place & Growth
Consultation reforms for the allocation of social housing
Following the enactment of the recent Social Housing (Regulation) Act 2023, the consultation on the reforms to social housing allocations is now open for local authorities to respond to. The consultation contains proposals as to the mandatory inclusion of a number of criteria that local authorities will need to consider when allocating social housing. These include:
- UK connection test – “The new test would help to ensure that more social housing is allocated to British citizens and those who have a strong connection to the country.” This proposes a requirement for applicants to have been a lawful resident for the last 10 years – with some exemptions relating to those arriving for safe and legal resettlement (for example Afghanistan and Ukraine refugees).
- Local connection test – proposes a requirement that local authorities must insist there be a local connection for at least two years (or longer if desired by the LA) for any applicant applying for social housing.
- Income test – proposes mandating an income test for those on the waiting list, who have yet to be allocated a social home. Those above the maximum threshold (the figure for which has not been identified within the proposals) will not be eligible for social housing. Exemptions will apply for those in receipt of passporting benefits, those who are in need of supported housing (or have care or support needs) and veterans of UK armed forces.
- Anti-social behaviour (ASB) – requirement for local authorities to disqualify any applicant who has unspent anti-social behaviour convictions or civil sanctions, within the location the behaviour took place. The ASB behaviour within the test is intended to align with the grounds for the mandatory grounds for possession (84A Housing Act 1985 and 7A Housing Act 1988). Exclusions will apply for domestic abuse survivors and those whose behaviour was due to a condition or disability.
- Fraudulent declaration test – disqualification for a set period for applicants who knowingly or recklessly make false declarations on their housing application form. Views are sought as to the length of the disqualification and the period for which disclosure should be made by the applicant.
- Terrorism – disqualifying applicants who have unspent convictions for a terrorist offence.
The consultation recognises that some of the above criteria may already have been applied under many allocation schemes, and therefore seeks to learn from those experiences.
The proposals also include new grounds for possession relating to terrorism and the ASB (the “three strikes and you’re out” policy). These proposed changes will apply to both tenancies granted by registered providers of social housing and local authorities:
- Looking at the ASB ground first – the proposals confirm that it is the intention of Parliament that the definition for a ‘strike’ aligns with those sanctions set out in the Home Office’s statutory guidance to frontline professionals on Anti-social Behaviour Powers – i.e. Criminal Behaviour Orders, civil injunctions, Closure notices and orders, community protection notices, dispersal powers and public space protection orders.
It appears to be suggested that the “three strikes” would not apply to behaviour which could lead to the use of the mandatory grounds, but to the remaining behaviour mentioned above – three being the maximum number before a landlord should consider using a discretionary ground for possession. - The second relates to the proposal for the creation of a new ground, or amendment to the serious offences set out in 84A Housing Act 1985, to include terrorism as a serious offence. The intention appears to relate only to unspent convictions, and there is currently no mention of any amendment to the need for the offence to have occurred within the locality of the property.
The proposals state that they intend to apply the above tests to both new applicants and to those already on the waiting lists.
The deadline for responding to the consultation is 26 March 2024.
We urge all local authorities to respond to the consultation to ensure that the Government have the views from you, especially those who have already implemented some of the proposed criteria under your existing allocation schemes.
Should you require any further help and guidance, please contact Sarah Orchard.
Legislation
legislation.gov.uk | 19 January 2024
These draft Regulations are laid to make a number of amendments to primary and secondary legislation consequential to the Social Housing (Regulation) Act 2023 (SH(R)A 2023) which makes provision about the regulation of social housing, including the bodies potentially eligible to voluntarily register, the housing moratorium regime and the regulator’s powers of enforcement. It also amends the special housing administration regime. They are due to come into force partly on the day after they are made and fully on the day on which SH(R)A 2023, ss 4, 8, 12, 31(5), 32, Sch 3, para 13(a) comes into force.
The Building (Registered Building Control Approvers etc.) (England) Regulations 2024
legislation.gov.uk | 28 January 2024
These Regulations are made to consolidate and replace the Building (Approved Inspectors etc) Regulations 2010, SI 2010/2215, following amendments made to BA 1984 by BSA 2022. These regulations set out the procedures that apply when a registered building control approver supervises work under the building regulations in England. Made on 28 January 2024 and in force 6 April 2024.
The Building Safety Act 2022 (Commencement No. 7 and Transitional Provisions) Regulations 2024
legislation.gov.uk | 28 January 2024
Regulation 2 of this instrument brings into force on 6 April 2024 a number of provisions of the 2022 Act, amending the Building Act 1984 (c. 55) (“the 1984 Act”), which in particular provide for the transfer of approved inspectors to become registered building control approvers. This is achieved, in England, by commencing sections 43 of, and Schedule 4 to, the 2022 Act. The amendments to the 1984 Act made by the 2022 Act also provide for plans certificates, cancellation of initial notices and new initial notices. Welsh Ministers have separate powers to commence most of the provisions in Part 3 of the 2022 Act in relation to Wales.
Publications & Guidance
The path to inclusive footways
Local Government Association | 10 February 2024
Most journeys start with a walking or wheeling stage, even if that stage is just the journey from your front door to the car. Footways are an essential infrastructure for people making journeys to local amenities, public transport and more. The design and maintenance of footways, affects how useable they are for different people. With people from more marginalised groups, such as disabled people, parents and carers often being most adversely affected by poor quality and poorly designed footway. This report details the barriers faced by people accessing the footway, the challenges facing local authorities when making footways accessible, case studies, and recommendations for how these barriers can be overcome. This report is based on a literature review, alongside interviews and a survey with officers and elected members from geographically diverse local authorities across England.
HS2 verdict: Scheme now very poor value for money after Northern leg cancellation
Public Accounts Committee | 7 February 2024
The High Speed 2 (HS2) programme, after the cancellation of its latter stages to run only from London to the West Midlands (Phase 1), will offer very poor value for money for the taxpayer. The Public Accounts Committee (PAC) offers its verdict on both the high-speed rail programme and Euston station. The PAC’s report is the latest addition to over a decade of scrutiny raising concerns around the management of HS2. The Government has accepted that delivering only Phase 1 will not be value for money, as its total costs significantly outweigh its benefits. The Department for Transport (DfT) told the PAC it was still better to complete Phase 1 – a calculation made by excluding the £23bn* spent to date, and including as a benefit of the project avoiding approximately £11bn* of remediation costs from cancelling entirely. The PAC has been left with little assurance over the calculations, and calls for a clear summation of Phase 1’s benefits.
Rollout of electric vehicle chargepoints to be accelerated
Department for Education | 5 February 2024
New measures to support electric vehicle drivers from the government’s Plan for Drivers have been launched (5 February 2024), including grants for schools, cash for councils and new proposals to boost chargepoint numbers. Technology and Decarbonisation Minister, Anthony Browne, will launch support for greener schools, with a new grant providing up to 75% of the cost to buy and install chargepoints, up to £2,500 per socket, up from the previous £350.
Building control changes for higher risk buildings and wider changes to building regulations
Department for Levelling Up, Housing and Communities | 1 February 2024
This circular letter draws attention to the building control process for higher-risk buildings and wider changes to building regulations.
Consultation on reforms to social housing allocations
Department for Levelling Up, Housing & Communities | 30 January 2024
The Department for Levelling Up, Housing and Communities (DLUHC) has launched a consultation seeking views on proposals to amend social housing allocation rules. The consultation seeks views
The consultation closes on 26 March 2024.
Housing Ombudsman Service | 23 January 2024
The Housing Ombudsman Service (HOS) has published its latest Spotlight report on relationship of equals, in which it looks at vulnerabilities, reasonable adjustments, discrimination, contact restrictions, investigation allegations and complaints handling. The HOS’s report assesses vulnerability in social housing in 2024, and how landlords can improve their responses to the needs of vulnerable residents. In its recommendations, the HOS has called for a new Royal Commission, independent of the government and ‘not impeded by politics’, to create a long-term plan for social housing. The HOS has also asked for landlords to implement a vulnerability strategy in line with the Equality Act 2010, the Human Rights Act 1998, and the Care Act 2014. It has also recommended for landlords to introduce minimum staff training requirements, implement a specific reasonable adjustments policy and ensure that residents have access to and awareness of complaints procedures.
Department for Levelling Up, Housing & Communities | 19 January 2024
This consultation seeks views on a proposed direction from the Secretary of State to the Regulator of Social Housing (“the Regulator”), using powers under section 197 of the Housing and Regeneration Act 2008 (“the 2008 Act”) as amended. The Social Housing (Regulation) Act 2023 requires the Secretary of State for Levelling Up, Housing and Communities to give a direction to the Regulator for the purpose of securing that registered providers of social housing are required to provide their tenants of low-cost rental accommodation with information about: (a) their tenants’ rights in connection with the low-cost rental accommodation and with facilities or services provided in connection with that accommodation, and (b) how their tenants can make a complaint against them.
First Homes scheme: template sales documents
Department for Levelling Up, Housing and Communities | 18 January 2024
The Department for Levelling Up, Housing and Communities (DLUHC) has published a template application pack and conveyancer pack for local authorities to use for sales of new build properties under the First Homes scheme.
News
Housing Ombudsman urges landlords to be prepared for statutory Complaint Handling Code
Local Government Lawyer | 8 February 2024
The Housing Ombudsman has called on landlords to prepare for its Complaint Handling Code becoming statutory on 1 April 2024, adding that the Code would provide “a single, robust set of standards for complaints procedures to be accessible, fair and efficient”. The call came as the Housing Ombudsman and the Local Government and Social Care Ombudsman launched aligned Complaint Handling Codes. The Housing Ombudsman said it would be under a legal duty to monitor compliance with its Code, “regardless of whether it receives individual complaints from residents about a landlord”. For the first time, this means landlords will need to submit their self-assessment annually to the Ombudsman at the same time as their Tenant Satisfaction Measures (TSMs).
Local Government Lawyer | 8 February 2024
Exeter City Council’s planning committee was misled by an officer’s report over an application for a new development and its highway access. Mrs Justice Lang, sitting in the Planning Court, said in her judgment that councillors had received “seriously misleading advice”. Claimants Christine Pratt and the Sandy Park Farm Partnership sought judicial review of Exeter’s decision in July 2023 to grant developer Waddington Park outline planning permission for the demolition of existing buildings and construction of up to 350 dwellings at Old Rydon Lane.
Government consults on plan for competency and conduct standard for social housing staff
Local Government Lawyer | 6 February 2024
The Department for Levelling Up, Housing and Communities (DLUHC) has launched a consultation on proposals to introduce a new, regulatory standard relating to the competence and conduct of social housing staff. DLUHC said: “This standard will require senior managers and executives to have, or be working towards, a relevant qualification. It will ensure that staff have up-to-date skills, knowledge and experience, and that they exhibit the right behaviours to deliver a high quality, professional service and treat residents with respect.” The proposals, which would only apply in England, would see the Secretary of State make a direction to the Regulator of Social Housing, using powers under section 197 of the Housing and Regeneration Act 2008. The consultation, which can be viewed here, closes on 2 April 2024. It contains DLUHC's draft direction to the Regulator and a draft policy statement setting out the detail of the proposed qualification requirements for senior managers and senior executives.
Secretary of State intervenes at another council set to consider withdrawing local plan
Local Government Lawyer | 26 January 2024
Mole Valley District Council has voted to continue with a draft local plan that involves building on the Green Belt, following a direction from the Department for Levelling Up, Housing and Communities forcing it not to withdraw the plan from examination.
Council acknowledges defeat in planning battle over 1,100-home scheme
Local Government Lawyer | 25 January 2024
South Ribble Borough Council has decided it lacks any grounds to challenge a decision by the Planning Inspectorate to overturn its rejection of planning consent for a major housing development. Leader Paul Foster said: “We have thoroughly investigated the possibility of us challenging the decision through the courts but having taken advice from multiple barristers, it is not possible. “Unfortunately, the way in which the planning system set up by the Government works means that local decisions to protect local communities can be overridden and ignored." Housebuilder Taylor Wimpey and Homes England had applied to build 1,100 homes on the Pickering's Farm site in Penwortham. This was rejected by the council in 2020 and again in 2021 because of the development’s impact on the adjoining road network.
Governance & Reorganisation
Localism Act 2011 – are you aware of the definition of ‘Disclosable Pecuniary Interests’?
This month saw only the second conviction of an elected member for an offence concerning a disclosable pecuniary interest (DPI) since the provisions in the Localism Act 2011 came into force (the first being the conviction of Cllr Flower of the now abolished East Dorset District Council).
Councillor Hollis, the Deputy Leader of Ashfield District Council, had loaned £70,000 to a friend (and fellow Councillor) to put toward the purchase price of a property. Ownership of the property was registered as a DPI by the other Councillor, however Cllr Hollis had not registered his own beneficial interest in the property arising from him having provided the loan.
The prosecution arose not from a referral by the Council (indeed it would appear that the Council was understandably unaware of the unregistered DPI), but by the police referring the allegations to the CPS of their own volition. The police had been investigating an unrelated matter during which the information had come to light.
The Deputy Chief Magistrate noted that the prosecution did not suggest that Cllr Hollis had been dishonest, nor that he had gained financially or benefited from any decision taken by the Council which may have related to the property. Nonetheless, they stated that the offences were serious, and upon pleading guilty Cllr Hollis was fined £2,400, and required to pay a victim surcharge of £960.
Whether this denotes the start of a more active period of prosecutions in relation to DPIs is of course to be seen. However due to its unusual circumstances it acts as a wake-up call for elected members to make sure they fully understand what is covered by the definitions of DPIs as set out in legislation, and to think carefully about what they register with their respective Monitoring Officers. Members would be well informed to seek advice should they be in any doubt about any of their interests, and not just DPIs.
For help and advice on governance or reorganisation matters, please contact David Kitson, Philip McCourt, or Victoria Barman.
Publications & Guidance
Local Government Finance Settlement 2024/25
House of Commons | 5 February 2024
This briefing paper sets out the core features of the Local Government Finance Settlement in 2024/25. The Settlement covers England only: local government funding is devolved to Scotland, Wales and Northern Ireland. Local authorities in England are expected to have a total of £64.7bn to spend in 2024/25, of which about £28.6bn will come from various grants and £36.1bn will come from council tax. This briefing paper explains the documentation published within the settlement process, and highlights the grants covered by the settlement. It provides a statistical analysis of the settlement in the context of previous years’ funding, and an outlook on likely future trends.
Department for Levelling Up, Housing and Communities | 18 January 2024
The Department for Levelling Up, Housing and Communities (DLUHC) has published two letters from the Minister for Local Government, Simon Hoare MP, to leaders of unitary and upper tier authorities in England and to the Chair of the Local Government Association (LGA). The letter draws attention to the eligibility of local councillors for criminal record checks and adopting best practice enhanced criminal record checks. This stems from Simon Bailey’s Independent Review of the Disclosure and Barring Regime.
Generative AI Framework for HMG (HTML)
Cabinet Office | 18 January 2024
The Cabinet Office has published 'Generative AI framework for HM government' containing guidance for civil servants and people working in government organisations on how to safely and securely use generative AI. The framework supersedes the 'guidance to civil servants on use of generative AI' which was published in June 2023.
Cases
Local Government Lawyer | 2 February 2024
The Supreme Court has granted permission for an appeal against the Court of Appeal's dismissal of a challenge concerning the lawfulness of Tower Hamlets Council's standing orders requiring councillors to be present for the whole of a committee's consideration of an item to vote on it. At the Court of Appeal in The Spitalfields Historic Building Trust, R (On the Application Of) v London Borough Of Tower Hamlets [2023] EWCA Civ 917, the claimants advanced a single ground of appeal, which stated that the High Court judge "was wrong to find that the Council was empowered to make standing orders under the Local Government Act 1972, Schedule 12, [paragraphs] 42 and 44 removing the right of committee members to vote."
News
Councillor pleads guilty to failing to disclose pecuniary interest
Local Government Lawyer | 21 February 2024
The Deputy Leader of Ashfield District Council has pleaded guilty to two charges under the Localism Act 2011 of failing without reasonable excuse to notify a disclosable pecuniary interest.
External auditors lift statutory recommendations at council in light of governance improvements
Local Government Lawyer | 9 February 2024
External auditors have lifted all statutory recommendations made for Sandwell Metropolitan Borough Council in light of "appropriate progress", but have warned that urgent steps are needed to deliver delayed financial statements. Grant Thornton published a report in December 2021, setting out significant weaknesses in the council's governance arrangements. An initial follow-up review took place in Autumn 2022, and a second follow-up review was carried out in Autumn 2023 to assess progress.
Local Government Lawyer | 5 February 2024
The Secretary of State for Levelling Up, Housing and Communities, Michael Gove, has confirmed the final local government finance settlement for 2024-25 at £64.7bn. The figure represents an increase of 7.5% in cash terms for councils in England and includes the extra £600m promised late last month, principally for adult and children's social care. In a statement on the settlement, the Department for Levelling Up (DLUHC) said it was also supporting all councils through the sector-wide' Funding Guarantee', which ensures all councils will see an increase in Core Spending Power of at least 4% before any local choices on council tax. This is an increase from the 3% announced at the provisional settlement. New arrangements will also allow councils to increase council tax by up to 3% without a local referendum, with a further 2% for those responsible for adult social care services.
Local Government Lawyer | 2 February 2024
The independent review panel set up to examine allegations made over Tees Valley Combined Authority's (TVCA) oversight of the South Tees Development Corporation (STDC) and Teesworks Joint Venture has found no evidence of corruption or illegality. However, the panel's report said there were "issues of governance and transparency that need to be addressed and a number of decisions taken by the bodies involved do not meet the standards expected when managing public funds". The 96-page report also criticised a former TVCA monitoring officer over advice they had given that said the combined authority's Overview and Scrutiny Committee did not have oversight of the development corporation.
Local Government Lawyer | 2 February 2024
The Department for Levelling Up, Housing and Communities has issued Cambridgeshire and Peterborough Combined Authority with a revised best value notice. The Department previously issued a best value notice for the combined authority a year ago (January 2023) over internal cultural problems at the combined authority and called for change to be delivered against an improvement framework it had set. In the revised notice, the Department acknowledged steps taken by the combined authority to address the "serious issues at the Authority" since January 2023, recognising that it had made permanent appointments to its senior leadership team in a "robust and timely manner". It also noted the conclusion of an investigation into member code of conduct breaches, which marked an "important milestone" for the authority.
MPs raise alarm on council finances, warn of a “cliff-edge” of potential section 114 notices
Local Government Lawyer | 1 February 2024
There is an "out of control financial crisis" in local councils across England and the Government must act before well-run councils face the prospect of issuing a section 114 notice, the Levelling Up, Housing and Communities committee has warned. "The Government must urgently reform these core funding mechanisms to ensure that the levels of demand and cost pressures faced by local authorities are adequately considered in determining their funding levels," a report called Financial distress in local authorities said.
Local Government Lawyer | 31 January 2024
The Local Government Association (LGA) has welcomed Government proposals for greater flexibility in the use of capital receipts but warned this would make only a marginal difference to the financial plight facing most councils. Under Government proposals, invest-to-save activity would be supported by increasing the flexibilities to use capital receipts and borrowing to finance the costs of transformation and efficiency projects. There would also be greater flexibilities in the use of capital receipts, including the scope to use them to meet general budget pressures, and potential additional flexibilities where the proceeds related to the sale of investment properties. The LGA said the additional flexibilities proposed were useful but “should not be seen as a substitute for the requirement for a long-term plan to sufficiently fund local services through multi-year settlements”.
Local Government Lawyer | 30 January 2024
The Department for Levelling Up, Housing and Communities (DLUHC) has issued Middlesbrough Council with a revised best value notice. DLUHC had issued a best value notice earlier this month amid concerns about Middlesbrough’s capacity to comply with its Best Value Duty under the Local Government Act 1999. In a letter to Middlesbrough’s chief executive, DLUHC’s Deputy Director, Local Government Stewardship, Max Soule, said the Department acknowledged the steps the council had taken to identify the serious issues in faced, and praised its “timely and helpful engagement”.
Devolution deal for Devon and Torbay: CCN responds
County Councils Network | 25 January 2024
The government has announced a devolution deal for Devon and Torbay, which will devolve powers over adult education and infrastructure to the area. The deal, pending local approval, will create a combined county authority for the area covering Devon County Council and Torbay Council. This ‘level 2′ deal includes the creation of a leaders’ group, led by a chair, which will make decisions on the new authority. It is the latest county devolution deal agreed with a County Councils Network member council, following on from several agreed in the last 20 months.
Contract Management
NHS England has suspended a new framework to buy digital services
NHSE has suspended its new digital pathways framework after receiving a claim against it. The Digital Pathways Framework for buying digital GP services was part of the national primary care recovery plan. The framework was intended to drive a rapid move to “modern general practice” by connecting integrated care boards with approved suppliers for tools. It is intended that the Framework would include new solutions to support patient pathways and assess patient needs including initial online contact with a GP practice, navigation to the appropriate point of care, messaging and enabling patient interactions with the practice, and scheduling or booking appointments.
The tender was closed in November and is understood to have had an estimated £300m contract value. The current delay is said to be due to a claim that has been issued against the authority and as part of this process, an automatic suspension of progression has been triggered and therefore the necessary approvals process and contract award has been delayed.
The details of the claim have not yet been made public and on that basis it is currently unclear how long any delay will last. The detail of the grounds for the suspension once they become apparent, will be of interest to those undertaking procurements.
If you would like any support or have queries on managing your own contracting and procurement processes, please contact Liz Fletcher.
Publications & Guidance
Government procurement card HMT spend greater than £500: December 2023
HM Treasury | 6 February 2024
The Minister for the Cabinet Office has committed government to publishing procurement card spending data over £500 for all departments.
Oral Statement: Implementation of the Social Partnership and Public Procurement (Wales) Act 2023
Welsh Government | 23 January 2024
The Welsh Government has published an oral statement made in the Senedd by Hannah Blythyn MS, Deputy Minister for Social Partnership, on the implementation of the Social Partnership and Public Procurement (Wales) Act 2023. In her statement, Blythyn explains that the first meeting of the social partnership council was to be held on 1 February 2024, preparations for the commencement of the social partnership duties on 1 April 2024 are well advanced and work on the regulations and guidance that will support socially responsible procurement provisions are moving forward accordingly. The council meeting will provide an opportunity for members to discuss the draft budget with Ministers.
Cases
Contractor was bound by a cap in the letter of intent
CLS v WJG Evans (Lexis Nexis – paid subscription) | 22 February 2024
The Technology and Construction Court (TCC) found that the employer and contractor had failed to enter into a formal construction contract in respect of a development project, meaning that their relationship remained governed by a letter of intent (LOI). The result was that the contractor’s entitlement to payment was capped at the value of the LOI, which was lower than its valuation of the completed works.
British and Irish Legal Information Institute | 1 February 2024
The Technology and Construction Court, in the case of Excelerate Technology Ltd v West Midlands Ambulance Service NHS University Foundation Trust and another [2024] EWHC 177 (TCC), dismissed the claimant company’s action seeking the court’s guidance on disclosure issues in a public procurement proceedings.
News
DSA starts applying to all online intermediaries on 17 February 2024
LNB News| 16 February 2024
The Digital Services Act (DSA) started to apply on Saturday 17 February 2024 to all online intermediaries. The DSA is the EU’s landmark rulebook that aims to make the online environment safer, fairer and more transparent. It involves new responsibilities for platforms, including all online plarforms with users within the EU.
Local Government Lawyer | 30 January 2024
The Court of Appeal has upheld a High Court ruling that an error in the award of an NHS orthodontic contract was not sufficiently serious to entitle the claimant to Francovich damages. Alexander Nissen KC, sitting as a Deputy High Court judge, had found in November 2023 that the contracting authority, NHS England, had committed a manifest error of assessment in its scoring of the claimant’s tender and that, absent that error, Braceurself’s tender would have won. However, in a subsequent damages judgment, Judge Nissen concluded in Braceurself Ltd v NHS England [2022] EWHC 2348 (TCC) that the NHS’s error had been excusable and the provision of public services was unaffected. The damages claimed by Braceurself were the sum of £4.7m for loss of profit, bid costs of £26,500 and loss of goodwill, which was not separately quantified. Judge Nissen dismissed Braceurself's claim for damages, but granted it permission to appeal.
Disputes & Regulatory Support
High Court refuses judicial review for Stonehenge development consent order
On 19 February 2024, the High Court refused permission for a judicial review of the Secretary of State for Transport’s (SST) decision to grant a development consent order (DCO) for a new dual carriageway which crosses the Stonehenge world heritage site (R (Save Stonehenge World Heritage Site Ltd and Andrew Rhind-Tutt) v Secretary of State for Transport [2024]. This was the second judicial review claim brought in relation to this proposed development. The first application was successful, and the High Court quashed the SST’s decision to grant consent for the project. The SST reconsidered the application, and again granted consent in July 2023.
The campaign group Save Stonehenge World Heritage Site sought to challenge this decision on a number of grounds including that the Secretary of State had acted in breach of the common law duty to act fairly and in breach of Article 6 of the European Convention on Human Rights by failing to re-open the statutory Examination of the DCO, and that the Transport Secretary had given inadequate reasons for rejecting the alternative of a bypass route thought to cause less harm to the world heritage site. It also claimed that the approach to climate change was "flawed" and that it was irrational to ascribe no weight to the risk that Stonehenge would likely be delisted as a world heritage site by the World Heritage Committee.
The Court refused the application for permission on all grounds bar one. There remains one ground of claim outstanding relating to the lawfulness of the approach adopted to the assessment of cumulative carbon impact assessment. That ground of claim is stayed pending the outcome of another case due to be heard in the Court of Appeal, namely the Boswell A47 litigation.
The judgment may be of interest to local authorities as it covers a number of issues relevant to public law decision-making, including the consideration of alternatives and having regard to other policies.
For further help and guidance regarding Public Law, please contact Olivia Carter.
Cases
J v Luton Borough Council and others [2024] EWCA Civ 3
11 January 2023 | The Court of Appeal held that the Court of Protection that the Court of Protection had been entitled to make an interim order under the Mental Capacity Act 2005 which declared that it was not in J’s based interests to travel to Afghanistan, in circumstances where a Forced Marriage Protection Order was in place in respect of J; non-statutory government guidance advised against travel to Afghanistan, and where J was shown to lack capacity to assess the risks of travelling to Afghanistan. The Court of Appeal found that the first-instance judge had taken account of everything she had been obliged to consider, and available evidence left such a decision open to her.
HXA v Surrey County Council & YXA v Wolverhampton City Council [2023] UKSC 52
20 December 2023 | The Supreme Court allowed the appeal of two local authorities and held that they owed no duty of care at common law to protect the claimants from harm when they were children.. Both claimants had suffered sexual or physical abuse by family members when they were children. While local authorities have duties in respect of their social work functions, including under the Children Act 1989, the court held that no assumption of responsibility had occurred in either case and thus no duty of care was owed at common law.
Park Green Investments Limited v Teignbridge District Council [2023] UKUT 292 (LC)
15 December 2023 | The Upper Tribunal allowed an appeal against the financial penalty imposed on a landlord by the local authority as a result of a failure to comply with a Housing Act 2004 improvement notice. The local authority served the notice on the freehold owner of the block of flats in relation to the repair of a fire alarm in one of the occupied flats, and the removal of obstructions in the common areas. The landlord sought to rely on the defence of reasonable excuse under section 30(4) of the 2004 Act as he had attempted to comply with the notice but the leaseholder denied access to repair the fire alarm and continued obstructing the common areas. The First-Tier Tribunal found that the landlord still failed to comply, but reduced the penalty imposed by the local authority. The landlord appealed the imposition of a penalty entirely, and the Upper Tier Tribunal set aside the penalty, criticising the reasoning of the First-Tier Tribunal and finding that the landlord did have a reasonable excuse for non-compliance. The Upper Tribunal also found that the First-Tier Tribunal erroneously relied on the local authority’s internal policy believing that it quoted government guidance when in fact it did not.
R (on the application of W) v Hertfordshire County Council [2023] EWHC 3138 (Admin)
8 December 2023 | The Administrative Court made a declaration in response to a judicial review application that the defendant local authority, in failing to complete an EHC plan for the daughter within the time period required by the SEND Regulations 2014, had acted unlawfully.
Resources Library
Housing Ombudsman identifies the meaning of 'vulnerability'
In-house Insights: Contract Update
In-house Insights: Information Law and IP
Adjudication: TV aerials are not fixed to the land and are not therefore ‘Construction Operations’
Voluminous documents will rarely be a breach of natural justice in adjudication
Counting service days: Elements (Europe) Ltd v FK Building Ltd
Deprivation of Liberty: “Unsound mind” and mental impairment
Home Office Civil Penalties for illegal working set to increase
Supreme Court ruling on test for limitation where information deliberately concealed
TCC rules on Limitation and the execution of contracts: the importance of calculating limitation in latent defects cases
All Bevan Brittan articles and news
Events
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Online
7 March 2024, 12:30 – 1:30 pm
Reflecting on Children’s Social Care 2 years on from the national review
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25 April 2024, 12:30 – 1:30 pm
Case Law Update – Mental Capacity Act 2005
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Domestic Homicide Reviews and your duties in relation to them
In-house Insights: Contract Update
In-house Insights: Information Law and IP
Freedom of Information – Backlogs and Compliance
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