29/01/2024
Welcome to the January 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
2023 – the year the s114 challenge began
2023 was a year of dawning clarity across the world of local government as the previously relatively fringe concerns about descending in bankruptcy became a much more likely, and frightening, possibility.
Birmingham and Nottingham captured the press headlines, and seemed to transcend the local government world in terms of public interest, but they were by no means the only examples of the issue of s114 notices, and certainly not the full picture in terms of those who are potentially heading into this territory.
It is also interesting to see how central government has responded to the growing crisis. That appears to be a reaction of finger pointing and throwing the blame squarely back at the feet of the local authorities themselves. The chairman of Oflog entered the fray in December making clear his view that whilst cost pressures were certainly a factor in all of this, the fault lay more with governance and decision making failures of the local authorities themselves. It is a debate that is unlikely to be resolved any time soon.
If you find yourselves in, or approaching, s114 territory there are still things that you can do to positively improve your situation. From looking at ways to improve contract and supplier management, taking a strategic and purposeful approach to property portfolios, analysing and supporting statutory officers in the s114 decision making process, managing funding decisions and analysing and dealing with historic liabilities (such as equal pay). Please do reach out to us if you would like some support.
Net Zero
Utility supply contracts – the importance of knowing your data protection obligations
Local authorities can be involved in a range energy projects that have a data protection dimension – for example the supply of heat to residential customers through heat network projects.
In the context of energy projects, the focus on infrastructure development often overshadows the data protection aspects related to individual customers. Neglecting data protection obligations poses a significant risk, with potential fines of up to £17.5m or 4% of annual global turnover.
Personal data is any data which relates to a living, identifiable individual. In the energy context, this is likely to encompass customer details like names, identification numbers, addresses, and meter numbers. Energy suppliers typically collect customers’ financial information, such as payment information, results of any credit checks, and details of any deficits, payment plans, or benefits relevant to the customer – this data is clearly particularly sensitive. Of even greater sensitivity are details about vulnerable customers, such as where someone has a chronic health condition which would mean they would be particularly impacted if their energy supply was interrupted, or details of suspected fraud.
Energy suppliers must not only be aware of their own practices but also scrutinise subcontracted suppliers. If you use a metering and billing agent, you need to understand what they are doing with the customer data you provide to them and where they are storing that data. For example, a potential risk arises where a supplier is using cloud storage for the data and, perhaps unwittingly, sending it overseas without proper protections.
Understanding how you currently use, or your new project intends to use, personal data and what personal data you, or your suppliers, collect and hold, is a key part of any energy project. Utility suppliers may be collecting a wide array of sensitive personal data (such as financial or health-related) from their customers and should take particular care to understand how that data is being used, and take the necessary steps to protect it.
If you have any questions about data protection in the energy context, please do get in touch with one of our Energy and commercial specialists Nadeem Arshard, Nathan Bradberry or Rupert Lugg.
Publications & Guidance
National Policy Statements for energy infrastructure
Department for Energy Security and Net Zero | 17 January 2024
In November 2023, the government published its consultation response on the draft National Policy Statements (NPSs) for energy infrastructure, and along with this published revised NPSs EN-1 to EN-5. These NPSs together set out the need case for energy infrastructure projects, and provides planning guidance on assessment criteria across a number of technologies. On 17 January 2023, the government confirmed that the revised NPSs EN-1 to EN-5 were now in force.
Adapting historic homes for energy efficiency: a review of the barriers
Department for Energy Security and Net Zero | 3 January 2024
The government has published a review of the practical barriers to energy efficiency and low carbon heating in historic homes, including the planning barriers, local authority and the construction industry capacity and capability, guidance and information, and affordability and financial incentives. See also: Government pledge to simplify retrofitting of listed buildings - AirQualityNews
Hydrogen projects: planning barriers and solutions
Department for Energy Security and Net Zero | 14 December 2023
The government has published a research paper investigating how hydrogen projects are processed in the planning system, and identifying barriers associated with obtaining planning permission. The research also proposes short- and long-term solutions for addressing these barriers.
The key barriers identified were:
- Lack of resources in local authority planning departments and other statutory consultees. This was consistently seen as the most significant barrier and the highest priority for UK Government to focus on improving.
- Lack of experience with hydrogen, in local authorities, other statutory consultees, and with developers
- Public attitudes and opposition to development generally and hydrogen specifically
- Difficulty co-ordinating involved parties (including regulators, local authorities, and local communities) throughout the process
- Lack of published guidance for hydrogen planning
- Challenges around thresholds for planning pathways and regulations
- Lack of flexibility in the process
- Inconsistencies across UK nations
News
Who will pay for gas network decline and decommissioning?
Regen | 17 January 2024
Ofgem’s consultation on how it intends to regulate gas networks during the RIIO-3 price control period raises questions about the future rise in gas network costs and eventual decommissioning, argues Frank Hodgson.
Proposals for heat network zoning 2023
Department for Energy Security and Net Zero | 18 December 2023 | Closes 26 February 2024
The government has opened a consultation on proposals for heat network zoning in England. Under the proposals, central and local government will work together with industry and local stakeholders to identify and designate where in England heat networks are expected to be the lowest-cost solution to decarbonising heat. The consultation responses will inform how zone regulations are drafted, how guidance is developed, and how heat network zoning is implemented.
Delivering Value
Since the Local Government Finance Act 1988 became law, twelve local authorities have issued section 114 notices (with Croydon issuing three notices and Northamptonshire and Nottingham issuing two each). A disproportionate majority of these have taken place since over the past five years. In January alone, a flurry of councils have announced they are at risk of issuing a section 114 notice due to budget gaps in allocating finances for the 2024/25 financial year. Bradford, Middlesbrough and Somerset have all announced they will need to apply for capitalisation directions in order to balance their budgets, highlighting the impact of austerity, Covid, inflation and the increased pressure on services such as adult social care and children’s services.
Despite the worrying number of authorities announcing their financial difficulties, central government has remained relatively quiet, likely aware of 2024 as a key election year. The consultation on the Local Government Settlement for 2024/25 proposes a 6.5% spending power uplift for local authorities. MPs have criticised the settlement, noting it is reliant on the assumption that all councils will increase council tax by the maximum amount. They have raised concerns over the ‘double whammy’ residents’ face with services due to be cut despite this increase in council tax. They have called for additional emergency additional funding to be provided in the Settlement to help reduce the predicted £650 million overspend this financial year. The LGA has further criticised the settlement as an ineffective short-term solution that will be unable to close the £4 billion spending gap for local government over the next two years.
Local authorities face tough decisions over the coming months with little in place to relieve their financial struggles for the remainder of this financial year. In planning for the next financial year and trying to reduce budget gaps, local authorities will be looking to increase income and inevitably reduce some services. The distinction between the provision of ‘mandatory’ and ‘discretionary’ services is often a blurry, grey area. Councils must tread carefully to avoid public backlash and ensure they have the correct governance arrangements in place before making these decisions.
If you would like to discuss the Local Government Settlement, section 114 notices or need advice on the implications of budget setting please do not hesitate to get in touch with our team including Olivia Carter, David Kitson, Melanie Carter and Kirtpal Kaur Aujla, our local government specialists.
Publications & Guidance
A councillor’s workbook on handling casework
Local Government Association | 11 January 2024
The Local Government Association has published a new workbook, titled ‘A councillor’s workbook on handling casework’, which aims to support councillors in delivering their work.
Local Government Association guidance on locally set licensing fees
Local Government Association | 14 December 2023
The Local Government Association has updated its guidance on locally set licensing fees. The guidance assists councils in examining issues which should be taken into account when setting local licensing fees, and sets out their legal obligations in respect of this function.
News
Growing pressure of mental health on children’s social care services
The MJ | 18 January 2024
A new study has revealed the increasing demands and complexity around mental health being placed on children’s social care. The research, conducted by the National Children’s Bureau (NCB) and Kingston University, analysed 3.6 million social work assessments to identify 12 common demand categories and the intervention pathways and outcomes associated with them.
The key findings included:
- Single-factor domestic abuse and violence was the most prevalent category of demand, accounting for a fifth of all cases;
- The proportion of children assessed with multiple risk factors increased from 2014-21, with a disproportionate rise in those affected by child mental health problems;
- Concerns about parental mental health and alcohol or drug misuse were the second most prevalent form of demand.
Ofsted survey exposes gap in provision for children with complex needs
Local Government Chronicle | 16 January 2023
Nine in ten local authorities claim they frequently have difficulty finding suitable homes for children with complex needs. An Ofsted report published this morning has revealed a big gap in provision for children and young people who require support for mental health, physical or safeguarding needs. Due to this shortage of provision, children and young people in some areas are waiting years for a suitable placement and stable home.
Growing pressures see care providers close services
The MJ | 16 January 2024
A new report has found 43% of care providers closed services or handed back contracts last year in response to growing financial and workforce pressures. According to the Sector Pulse Check report, commissioned by Care England and disability charity Hft, pressures such as the rise in the National Living Wage and increasing energy costs left 40% of adult social care providers in deficit during 2023. The report found 18% of providers offered care to fewer people, 44% turned down admissions due to lack of staff and 39% had considered exiting the market altogether. Recommendations in the report include introducing a statutory duty for adult social care providers to be directly represented on Integrated Care Boards and ‘mandates’ that councils ‘facilitate VAT restructuring’ to alleviate cost pressures for providers.
Warning new social care funding 'isn't sufficient'
Local Government Chronicle | 10 January 2024
The government’s plans for further investment and new qualifications in social care “won't meet the needs of many authorities in England” sector figures have warned. The Department of Health and Social Care unveiled a series of measures today, including over £50m of funding for a new qualification to support up to 37,000 individuals in direct social care roles to enrol on the new level two adult social care certificate between June 2024 and March 2025. There will also be an investment of over £20m for apprenticeships which local authorities and adult social care providers will be able to use towards training and supervising hundreds of new social work and nurse apprentices. Other plans being introduced include the launch of a care workforce pathway, subsidised training places and a new digital leadership qualification. However, Dwayne Johnson, health and social care spokesperson for the Society of Local Authority Chief Executives and Senior Managers (Solace) told LGC that the additional funding “won’t meet the needs of many authorities in England”.
How the three biggest levelling up fund recipients will use their money
Local Government Chronicle | 2 January 2024
A new report published last month highlighted that Kirklees MBC, Newcastle City Council and Leicester City Council were the three biggest recipients from the levelling up fund. The report, conducted by University of West London’s Centre for Inequality and Levelling Up (CEILUP), followed the distribution of the final round of levelling up funding last November. Born out of ex-prime minister Boris Johnson’s vision of redressing the balance between the North and South of England, the fund distributed a total of £4.8bn across the UK. Over 54% of funding for all successful bids across the whole of the UK was dedicated to regeneration – some £2.5bn in total. Transport projects received £1.3bn, which totalled 29% of the overall fund, while culture and heritage made up 17% of successful bids at £799m. Kirklees secured the largest amount of £76m. Newcastle upon Tyne received nearly £60m, while Leicester gained a total of £57.8m.
Care data matters: a roadmap for better adult social care data
Department of Health & Social Care | 20 December 2023
The government has published ‘Care data matters: a roadmap for better adult social care’, its strategy on the management of adult social care data. The strategy summarises national data projects and the progress made so far. It also sets out how the government intends to improve collection, utilisation, and analysis of social care data, and how such improvements will support better joined up care, increase staff time to care, increase understanding of care experiences and improve management of the health and care system.
Government proposes financial levers to 'disincentivise' four day working week
Local Government Chronicle | 18 December 2023
The government is seeking views on “financial levers” it could use to “disincentivise” local authorities from adopting four-day working week arrangements, and warned it could legislate against the practice. Today's consultation on the provisional local government finance settlement for 2024-25 seeks views from across the sector on using financial levers against councils “operating part time work for full time pay”. It said such levers could be used in finance settlements after 2024-25.
ADCS president: 'Tensions with colleagues over rising costs'
Local Government Chronicle | 8 December 2023
Children’s services directors are in an “exceptionally difficult” position where they have to “make the case” for funding to finance colleagues, John Pearce told LGC. In an interview last week, the president of the Association of Directors of Children’s Services (ADCS), said that being a “key pressure” during financial crisis makes it harder to “make the case” for funding preventative services. Mr Pearce warned that staff were increasingly at risk of burnout due the way they are being asked to work, and called for better regulation of the “Wild West” private provider market. Mr Pearce, who is also the corporate director of children and young people at Durham CC, said “making the case” for “prevention in the long term” was getting harder, even though “actually if you do children’s services well it’s cheaper”.
Place & Growth
Awaab's Law Consultation – Strict times to investigate and resolve repairs
On 9 January, a new consultation was issued by the Department for Levelling Up, Housing and Communities (DLUHC) regarding the proposals and implementation of Awaab’s Law. The consultation applies to England only and will close on 5 March 2024. The content of this consultation will impact all social housing landlords including local housing authorities.
Awaab’s Law focuses on the obligations of landlords to ensure rental properties are free from damp and mould and also many other hazardous conditions. It effectively inserts into social housing tenancy agreements an additional term that will require landlords to comply with these new requirements.
The consultation seeks views on the specific timescales by which a social landlord will be required to respond to complaints of certain health and safety hazards. It asks for input on the following key issues:
- Scope of hazards covered – The consultation proposes that all 29 health and safety hazards currently set out by the Housing Health and Safety Rating System (HHSRS) should be included, which includes hazards such as damp and mould, domestic hygiene and pests, personal hygiene and sanitation, over-crowding, excessive noise, excess heat or cold etc.
- Scope of risk – The consultation proposes including any of the HHSRS hazards that pose a significant risk to the health or safety of the actual resident of the dwelling. This could go beyond the current Decent Homes Standard requirement to be free from dangerous (Category 1) HHSRS hazards, as the needs of the individual resident would need to be taken into account.
- Timescales for initial investigations of potential hazards – The consultation proposes 14 days from the complaint being made.
- That investigations can be undertaken using photos and videos without a site visit unless specifically requested by a tenant.
- The requirement that those conducting investigations hold the right skills and experience to determine whether there is a hazard, and if so, the level of risk to a resident’s health or safety.
- That residents will not be required to provide any medical evidence for an investigation.
- The requirement to be placed upon landlords to provide written summaries of investigation findings within 48 hours of an investigation concluding.
- Timescales for beginning repair works – The consultation proposes seven days following the issue of the written investigation findings. Beginning works means a worker being on site physically starting to repair and rectify a hazard.
- Timescales for completing repair works – The consultation proposes “within a reasonable period – meaning repairs should not be unreasonably delayed and evidence should be provided where delays to repairs are necessary” and that “Timescales for completing repairs should be proportionate to the scale of the repair and consider the needs of occupants”.
- The definition of emergency repairs – The consultation proposes repairs that present “a significant and imminent risk of harm”. The consultation includes as examples, gas leaks, broken boilers, lack of water supply, electrical hazards such as exposed wiring, significant leaks, broken external doors or windows that present a risk to home security and prevalent damp and mould that is impacting a resident’s ability to breathe.
- Timescales for completing emergency repairs – The consultation proposes as soon as practicable but, in any event, within 24 hours from the complaint being made.
- The circumstances under which residents should be temporarily decanted to protect residents’ health and safety if emergency repairs cannot be made within 24 hours or other repairs cannot be started within seven days and other steps to make the property safe are not possible.
- Requirements to be placed upon landlords to maintain adequate record keeping throughout repair works.
- The cost benefit analysis published at Annex B. The duty to make repairs to reported hazards is not a new requirement for landlords, and the analysis suggests the costs associated with the investigation and repair timescales are likely to be minimal, as the additional burden is the speed at which repairs need to be responded to, not the repairs themselves. DLUHC suggests the only additional are costs are those for familiarisation of staff with the new requirements and for providing written summaries of investigation findings to residents.
We encourage all local housing authorities to review the consultation and respond directly using the DLUHC online survey or via email to socialhousingsafety@levellingup.gov.uk before Tuesday 5 March.
Those responding may wish to consider the following implications:
- Complaints procedures / policies – including how complaints can be made, how they are prioritised and commitments to repairs
- Communication channels with residents
- Staff resourcing and training
- Availability of competent contractors
- Availability of supplies and materials
- Access to properties
- Availability of alternative properties if residents have to be temporarily decanted
- Impact on existing contracts
- Impact on any insurance
- Impact on any funding arrangements and property valuations
- Accuracy of records and data
- Interaction with standards set by the Regulator of Social Housing or Housing Ombudsman
- Cost of inspections and written summaries, and where funding will come from.
If you would like further help and guidance, please contact Neil Brand, Louise Mansfield or Katie Dyer.
Publications & Guidance
National Planning Policy Framework updated
Department for Levelling Up, Housing and Communities | 19 December 2023
The government has published its updated National Planning Policy Framework which was revised in response to the Levelling-up and Regeneration Bill: reforms to national planning policy consultation.
Sector responses:
- County Councils Network
- CPRE, the Countryside Charity
- Chartered Institute of Housing (CIH)
- Royal Institution of Chartered Surveyors (RICS)
- Royal Town Planning Institute (RTPI)
- ‘This is a blow’: sector responds to Gove’s planning reforms | Inside Housing
Exempting asylum housing from Awaab's Law branded 'unacceptable'
The MJ | 18 January 2024
Charities have described as ‘unacceptable’ Government plans to exempt asylum accommodation from ‘Awaab’s Law’ forcing social landlords to deal with poor-quality housing. It emerged this week that asylum accommodation currently used to house more than 100,000 asylum seekers is likely to be exempt from the government’s new Social Housing (Regulation) Act. Most asylum accommodation is sourced by Home Office contractors or councils.
Memorandum of Understanding signed with the New Homes Ombudsman
Housing Ombudsman | 4 January 2024
The Housing Ombudsman has signed a Memorandum of Understanding (MoU) with the New Homes Ombudsman setting out how the two bodies will work with each other. The MoU is based on the relevant provisions in the Building Safety Act 2022 and the Housing Act 1996, whilst recognising that the New Homes Ombudsman is currently a voluntary scheme.
It sets out the functions of each organisation and describes the arrangements for cooperation and communication between the two bodies in relation to their respective functions. It also clarifies any potential overlap in the jurisdiction of the Ombudsmen to ensure that it is clear to both parties which complaints they investigate.
Review of 2023: a year in planning
Local Gov | 20 December 2023
Karen Charles, executive director, Boyer (part of Leaders Romans Group), takes a look back at developments in planning policy over the last year.
Government to publish league tables on planning
Local Government Chronicle | 19 December 2023
The government will publish league tables detailing the success of local planning departments, the levelling up secretary has announced as the new National Planning Policy Framework was unveiled. Speaking at the Royal Institute of British Architects, Michael Gove said the publication of the tables will reflect how the system is “gamed” by some local authorities’ use of extension of time agreements. Mr Gove added that developers have “little option” but to agree to the delays and vowed to “constrain their use”.
Government launches £500m local authority retrofit scheme
Local Government Chronicle | 18 December 2023
The government has launched a £500m local authority retrofit scheme for low-income and cold homes. It said the scheme would support up to 60,000 low-income and cold homes, "including those off the gas grid, with measures such as insulation". In addition, the social housing decarbonisation fund has been allocated £1.25bn for 140,000 social homes to be insulated or retrofitted to improve energy efficiency and lower bills. The package of measures also includes £1.5bn in a boiler upgrade scheme, to install heat pumps.
Governance & Reorganisation
LLG Members’ Planning Code of Good Practice
LLG in partnership with Bevan Brittan have launched a revised Members’ Planning Code of Good Practice for local authorities.
The Planning Code of Good Practice was originally part of a wider response to a series of successful court challenges concerning local planning authorities around members conduct and conflicts of interests in the nineties, but was also a response to the somewhat lengthy and discursive documents put out by others and that the local codes and protocols adopted by individual local authorities at the time could vary widely. As a result it can be said it was an enormous success. Its adoption by local authorities can now be said to be commonplace and, whilst some do not like its direct ‘do’s’ and ‘don’t’s’ approach, deeper discussion can be found elsewhere and the usual reaction is one of gratitude for that directness.
The Model Council Planning Code and Protocol (2013 update) found itself at the end of a line of challenge to a planning committee’s decision and the subject of discussion at the UK Supreme Court in 2017. Here, the Code was described by the Supreme Court in terms that it “gives useful advice” [para 60] and “offers sound practical advice” [para 62].
The first Code was launched on the 14 February 2003 and, as the organisation’s then portfolio holder with responsibility for regulatory matters and local government powers, Philip McCourt led the drafting then and again in 2013. It was the subject of wide consultation across the association and garnered comment from local government national bodies and firms of solicitors and counsel who acted on their behalf. A similar process was undertaken for the later revision, again assisted with comment from Bevan Brittan based on our experience in advising local authorities on governance and sound decision making. As Philip is now fulfilling that role at Bevan Brittan himself, he reports that it was a delightful step to take on leading the drafting again for this 2024 refresh and feeling that he was able to pull all of that experience together.
The 2024 refresh now includes changes to enhance commentary around decision-making and also covers the involvement of social media in lobbying and within committee proceedings.
Publications & Guidance
Guidance for Schools and Colleges: Gender Questioning Children
Department for Education | 19 December 2023 | Consultation closes 12 March 2024
The government has published draft non-statutory guidance for schools and colleges in England on transgender children, which the guidance refers to as ‘gender questioning’ children, and is consulting on the guidance. The draft guidance provides information for schools and colleges in supporting gender questioning children, to protect them from bullying, and to maintain child safety and wellbeing.
Minister for Women and Equalities, Kemi Badenoch, said that the guidance “makes clear that schools do not have to accept a child’s request to socially transition, and that teachers or pupils should not be pressured into using different pronouns…We are also clear how vital it is that parents are informed and involved in the decisions that impact their children’s lives.”
The guidance aims to provide guidance on how to approach issues which arise when supporting gender questioning children who seek to socially transition.
Following publication of the guidance, it had been revealed that government lawyers told ministers that the guidance was ‘high risk’ and potentially unlawful. Discrimination and employment law barrister Robin White has also said that the guidance infringes on human rights and discrimination laws, and LGBT+ charity Galop has said that the guidance could stop schools from being a safe space for young LGBT+ people
Public Sector Equality Duty: guidance for public authorities
Government Equalities Office | 18 December 2023
The Government Equalities Office has published guidance on the Public Sector Equality Duty. The Public Sector Equality Duty (PSED, or “the duty”), which applies in Great Britain (England, Scotland and Wales), requires public authorities to have due regard to certain equality considerations when exercising their functions, like making decisions.
This guidance replaces the Government Equalities Office’s 2011 guidance:
· Equality Act 2010: Public Sector Equality Duty: What Do I Need to Know? A Quick Start Guide for Public Sector Organisations
· Equality Act 2010: Specific Duties to Support the Equality Duty: What Do I Need To Know? A Quick Start Guide for Public Sector Organisations
It is intended to help decision-makers, including Government ministers, to comply with the duty. The guidance does not cover those elements of the duty that apply only to Scottish or Welsh public authorities under devolved powers. The guidance is not statutory.
Provisional local government finance settlement: England, 2024 to 2025
Department for Levelling Up, Housing and Communities | 18 December 2023
The government has announced its financial settlement for 2024-25 alongside a consultation on the proposals which closed on 15 January 2024. The settlement included a 6.5% increase in core spending power, bringing the total settlement to over £64 billion
Further commentary:
- Local government finance settlement confirms 6.5% core spending power rise | Local Government Chronicle
- Finance settlement: Council tax accounts for more than half of core spending power rise | Local Government Chronicle
- Councils lobby for extra support ahead of final finance settlement | The MJ
Working together to safeguard children
Department for Education | 15 December 2023
The government has updated its statutory guidance on working together to safeguard children. This guidance replaces the 2018 guidance and includes:
- principles for working with parents and carers that centre the importance of building positive, trusting and co-operative relationships to deliver tailored support to families
- expectations for multi-agency working that apply to all individuals, agencies and organisations working with children and their families, across a range of roles and activities
- new national multi-agency child protection standards that set out actions, considerations and behaviours for improved child protection practice and better outcomes for children
Report: preventing failure in local government
Grant Thornton | 7 December 2023
Grant Thornton has published a report titled ‘Preventing failure in local government’, which investigates some of reasons why failure occurs in local government and offers solutions to ensure the effective operation of local authorities in England.
News
40% of councils face ‘financial failure’
The MJ | 15 January 2024
Two in five local authorities in England could see their reserves drop to less than 5% of their net revenue expenditure within the next five years, new analysis by Grant Thornton has found.
Middlesbrough set to ask for Government support in bid to avoid s114 (themj.co.uk)
The MJ | 11 January 2024
Middlesbrough Council is set to ask the Government for Exceptional Financial Support (EFS) as it battles to achieve a balanced budget for 2024-25 and avoid issuing a section 114.
Criticism of 'ill-timed' government proposals for capitalisation flexibility
Local Government Chronicle | 12 January 2024
Finance directors have expressed “nervousness” that the timing of government plans for capitalisation flexibilities could lead to “unsustainable” debt for some councils. Communities minister Michael Gove launched a call for views on “developing options for the use of capital resources and borrowing to support and encourage invest-to-save activity” and “more flexibilities to use capitalisation without the requirement to approach government” in December. In the same week, the Department for Levelling up, Communities and Housing (DLUHC) started three consultations, including the provisional local government finance settlement and the third iteration of the review of statutory guidance on minimum revenue provision (MRP).
Proposed deadline for outstanding audits revealed
Local Government Chronicle | 10 January 2024
Councils face having their accounts for 2022-23 and previous years qualified if auditors do not sign them off by the end of September, the country’s most senior auditor has warned. Less than 10% of audits of local authorities' financial statements had been submitted for the financial year 2022-23 by December, according to the latest figures from Public Sector Audit Appointments, as only 45 out of 467 had been filed. Before the pandemic in 2018, 87% of audits were completed by the then publishing deadline of 31 July.
Davies: More 114s 'within weeks'
Local Government Chronicle | 9 January 2024
Section 114 notices risk becoming “normalised”, the chair of the Local Government Association has warned, branding it “lazy” to lay all of the blame for councils’ financial difficulties at mismanagement. In a New Year interview with LGC, Shaun Davies (Lab) said he expected more councils to issue 114 notices declaring they are unable to balance the books “over the next few weeks”.
Half of workers unsure their council can avoid bankruptcy
The MJ | 8 January 2024
Around 50% of local government workers are ‘unsure’ or ‘unconfident’ that their organisation is financially sustainable, a new study has revealed. A report by the audit, tax, and advisory firm Mazars found that council workers are either unsure (15%), not very confident (26%) or not at all confident (9%) that their organisation is financially sustainable. Only 14% said they were very confident that their organisation was in a financially sustainable position. Drawing on responses from almost 100 individuals, the firm’s study, Beyond efficiency: what’s left for local government?, found that 86% believe economic challenges present the biggest risk to their organisation, followed by workforce challenges (58%).
Auditor raises ‘significant concerns’ as met moves closer to 114
Local Government Chronicle | 5 January 2024
Dudley MBC is in discussions about an exceptional financial support package from the government after “further deterioration” in its finances moved the council closer to issuing a section 114 notice. The met’s auditor has also raised concerns about “significant weaknesses” in the council’s finances and financial governance in its annual report, including members blocking savings plans put forward by the chief finance officer.
FRC starts Thurrock investigation
Local Government Chronicle | 3 January 2024
Transport improvements, city centre regeneration a new community hub were among the successful levelling up fund bids last year. Faye Curran takes a closer look at how the three councils that received the most from the final tranche will spend their funding.
Havering LBC ‘on brink’ of section 114 notice
The MJ | 22 December 2023
Havering LBC could become the first council to issue a section 114 notice in 2024, after its leader said a ‘disappointing’ finance settlement left him little wiggle room.
Local Government and Social Care Ombudsman publishes Annual Report and Accounts
Local Government and Social Care Ombudsman | 19 December 2023
The Local Government and Social Care Ombudsman has published its Annual Report and Accounts for 2022-23. The report provided some statistics on the work done by the Ombudsman that year, including:
- 16,963 were handled by the Ombudsman This was 2% less than the previous year.
- 3,203 cases were upheld. This was 8% more than the previous year.
- 99.4% of the Ombudsman’s recommendations were complied with, and 2,578 recommendations to improve services were made.
- 22% of decisions related to children’s services; 16% of decisions related to adult care services, and 14% of decisions related to housing.
Oflog plans visits to 'at risk' councils
Local Government Chronicle | 19 December 2023
The Office for Local Government plans to visit "at risk" councils as part of a new "early warning system" to flag "potential serious failure in local authorities". The next steps to establish this system for "warning and support in the wider local government ecosystem" have been laid out in a letter to chief executives this afternoon.
Two districts issued with best value notices over debt fears
Local Government Chronicle | 19 December 2023
Two district councils have been issued with best value notices due to concerns over their levels of debt.
Runnymede and Eastleigh BCs this afternoon received "formal" requests to provide "assurance of improvement" from Suzanne Clarke, deputy director of local government finance at the Department for Levelling Up, Housing & Communities. The letter to Andrew Pritchard, chief executive of Runnymede BC, raised concerns over the authority "borrowing 71 times their core spending power" predominantly in property investments and fears over "anticipated income fail" because commercial income is considered a "substantial revenue source". The notice to James Strachan, chief executive of Eastleigh BC, highlights its debt of 45 times its core spending power, used mostly for commercial regeneration and housing investment.
HS2 bill leaves Cheshire East at risk of s114
The MJ | 15 December 2023
Cheshire East Council could be left facing a section 114 notice unless it receives Government compensation for cuts to the High Speed 2 (HS2) rail link. Officers said in a report to members this week the cancellation of the northern leg, which would have linked the area at Crewe station, will have ‘devasting consequences’. The council spent £11m preparing for HS2 and will have to write-off £8.6m of capital spending through its revenue account, which could ‘trigger a s114 notice’ as a result of ‘insufficient funds, and inadequate reserves’.
Levelling Up, Housing and Communities Committee | 14 December 2023
Clive Betts, Chair of the Levelling Up, Housing and Communities (LUHC) Committee has written to Secretary of State Michael Gove to press the Government for further detail on its approach to the financial challenges facing councils in England.
The Chair’s letter to the Secretary of State (SoS) calls for the Government to set out what advice and support it is providing to councils to help them plan for the annual cuts in unprotected spending which are forecast by the Office for Budget Responsibility from 2025.
LGA warns nearly one in five councils face section 114
6 December 2023 | Almost one in five councils in England are likely to issue a section 114 notice this year or next year, the Local Government Association (LGA) has warned. A survey which included 114 chief executives and 71 council leaders found that the likelihood of issuing the notice was due to “a lack of funding to keep key services running”.
Contract Management
The Health Care Services (Provider Selection Regime) Regulations 2023
The Health Care Services (Provider Selection Regime) Regulations 2023 came into effect on 1 January 2024. They bring in a completely new regime for the procurement of health care services in England that aims to give commissioners of health care services more flexibility in selecting providers and mean that competitive tendering will not be the default for all above threshold contracts. Instead, relevant authorities will have a choice of five different award processes, only one of which involves bidders submitting tenders in response to published requirements.
We have prepared a series of videos that break down the Provider Selection Regime into short topics that we hope you will be able to digest over a coffee. The series covers the following topics:
- Introduction: covering start date/application to current procurement, coverage, mixed procurement, the general principles, key criteria and basic selection criteria
- The direct award processes: Direct Award Processes A, B and C
- The other award processes: Most Suitable Provider Process and Competitive Process
- Standstill and the representations phase
- Modifications of contracts and dealing with urgent situations
- Other points: grounds for exclusion, dealing with conflicts of interest, termination of contracts and record keeping
Part One covers the first three videos. Part Two of the series covers the second three videos:
Standstill and Representations
In this video we discuss the requirements around running a standstill period prior to awarding a contract under Direct Award Process C, the Most Suitable Provider Process and the Competitive Process. We also talk through the options available to unsuccessful suppliers to ask for a review of the award decision via the written representations process under Regulation 12.
Modification of contracts and urgency
In this video we discuss the rules around the ability of a relevant authority to modify a contract once awarded and we consider what a relevant authority can do to award a contract in situations of urgency.
In our final video, we cover some additional points that are relevant to all processes being run under the Provider Selection Regime. This covers the Basic Selection Criteria, exclusion grounds, management of conflicts of interest, the requirements around the recording and publication of information, and what is required in relation to the inclusion of termination provisions in contracts.
We hope that you find these videos helpful. If you would like to enquire about bespoke training for your organisation, please get in touch with Fran Mussellwhite.
Publications & Guidance
Procurement Policy Note 11/23 – New Thresholds
Cabinet Office | 19 December 2023
The Cabinet Office has published Procurement Policy Note 11/23 (PPN 11/23), which provides guidance to contracting authorities on the new thresholds that apply under the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011. PPN 11/23 is applicable from 1 January 2023 and it updates the thresholds set previously from PPN 10/21.
Cabinet Office | 19 December 2023
The Cabinet Office has published Procurement Policy Note 12/23 (PPN 12/23), which sets out new requirements for contracting authorities following North Macedonia’s accession to the World Trade Organisation’s Agreement on Government Procurement, and amends two CPV codes to address outdated language relating to disability and better reflect government’s guidance.
Competition in public procurement
House of Commons Committee of Public Accounts | 7 December 2023
The Committee of Public Accounts has published its report into competition in public procurement. The report set outs five conclusions and recommendations to address these. The recommendations include collecting and using data to evaluate competitive trends, implementing stronger guidance and mechanisms to help suppliers comply with requirements; publishing a Framework Playbook to address risks to competitive benefit; creating a Sourcing Playbook to help smaller suppliers enter into the market and for the government to release further information on the transition from the Public Contracts Regulations 2015 to the Procurement Act 2023.
Disputes & Regulatory Support
Who holds the Duty of Care?
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Local authorities will be relieved at the Supreme Court’s decision in HXA v Surrey CC and YXA v Wolverhampton CC [2023] UKSC52 in the week before Christmas, which ratified the approach in N v Poole Borough Council [2019] UKSC 25, [2020] AC 780. In that case, it was held that defendant local authorities did not owe a duty of care to protect children who had been subjected to verbal and physical abuse by their neighbours. The Supreme Court made clear there that in this type of case, where the issue is whether a local authority has a duty of care to use reasonable care to confer a benefit on the claimant by protecting them from harm by a third party, it is necessary to establish that the local authority has assumed responsibility to protect the claimant from that harm.
Here, the cases concerned two children who had suffered sexual and physical abuse by a parent or parent’s partner. It was held that the local authorities involved did not owe a duty of care to the children as both failed to establish that their local authority had assumed responsibility to use reasonable care to protect them from the abuse. An alleged duty of care is assessed by applying the same principles to the local authority as would be applied to a private individual. The fact that a local authority has statutory duties or powers neither automatically creates nor automatically destroys a potential duty of care. Here, in particular an assumption of responsibility did not arise from the authority's internal decisions to investigate, seek legal advice or undertake keeping safe work. Nor did it arise from the provision of temporary respite provision to protect the child.
Whilst there was no duty of care in this case, and in common with N v Poole, the Supreme Court confirmed it is possible for a local authority to assume responsibility to protect a child from harm, in respect of its social work functions. Such assumptions of responsibility are not restricted to circumstances in which the local authority has obtained a care order. Also, there does not need to be “specific reliance” by a child on something that the local authority said or did in order to establish that the local authority assumed responsibility towards them.
For further help and guidance please contact Amrita Hurst.
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
Lessons for bidders in public procurement: sub-contracting and joint ventures
Is Mediation a Must?
The Key Reforms of the Social Housing (Regulation) Act 2023 - Access to Information Scheme
Department of Education Updates National Framework for Children’s Social Care
Pensions Points Predictions 2024 A quarterly guide to key pensions issues
Hiring Foreign Nationals in the UK: Becoming a Sponsor | Bevan Brittan LLP
The new law on sexual harassment - will it be the end of the workplace Christmas party?
The Government responds to consultations on holiday pay and other EU law matters
Utility supply contracts – the importance of knowing your data protection obligations
Major Immigration System Changes to Reduce Net Migration Announced
Pensions Not Podcasts: ESG
UK Net Migration 2023: What’s the story?
All Bevan Brittan articles and news
Events
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7 February 2024, 10:00 – 11:00 am
Freedom of Information – Backlogs and Compliance
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22 February 2024, 12:30 – 1:30 pm
Domestic Homicide Reviews and your duties in relation to them
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7 March 2024, 12:30 – 1:30 pm
Reflecting on Children’s Social Care 2 years on from the national review
On Demand
Talking Heads: The Health Care Services (Provider Selection Regime) Regulations 2023 – Part Two
Talking Heads: The Health Care Services (Provider Selection Regime) Regulations 2023 – Part One
Employment Law Update - Our 2023 Roundup
Distinguishing unwise decision-making from lacking capacity
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