Case Law Update – Mental Health Act 1983
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Read More29/05/2009
Legal intelligence for professionals in local government.
This Update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.
All links are correct at the date of publication. The following topics are covered in this update:
Adult Social Services
LGA / IDeA:
Getting on well together - councils working with older people:
this joint publication highlights key messages about how local
government can effectively address the later life agenda. By
working with older people and public agencies, and focusing on
prevention, councils can support older people to lead independent,
active and healthy lives. It examines research, pilot projects and
best practice. It also illustrates how both local and central
government can design services to support older people and plans
for an ageing population. (20 May 2009)
HSE: Balanced decision-making for people who use
care services: this circular provides advice to health and
safety regulators who are involved in the regulation of social care
activities. It explains the priorities that local authority social
services departments and social care providers have with regard to
supporting adults and older people who need care and support to
live with dignity and independence within the community, whilst
ensuring risks are identified and managed. The general principles
of risk management will also apply to the health care sector. (26
May 2009)
If you wish to discuss any of the items noted in this section
please contact Caraline
Johnson.
Children's Services
R (G) v Southwark LBC [2009] UKHL 26 (HL): G
appealed against the Court of Appeal's decision that the local
authority was not under a duty to provide him with accommodation
under s.20(1) of the Children Act 1989. G had moved out of the
family home when he was 17, after falling out with his mother. He
asked to be accommodated by the authority's children's services
department, under s.20, which imposes duties on local authorities
that are wider than the mere provision of accommodation. The
authority took the view that G's need for accommodation could be
met under s.17 of the 1989 Act by arranging for him to be
accommodated by the housing department under the homelessness
provisions of the Housing Act 1996 Pt VII. G submitted that all the
elements required by s.20(1) had been met, so that he "required
accommodation" within the meaning of that section, even if there
was another way in which accommodation might be found for him.
The House of Lords held, allowing G's appeal, that the Homelessness
(Priority Need for Accommodation) (England) Order 2002 took out of
priority need those children who required accommodation in the
circumstances set out in s.20(1). Such children could not be put
straight back into priority need by adjudging that they did not
"require" accommodation at all when clearly they did. Section 20(1)
entailed a series of judgements, as set out in R (M) v Lambeth LBC [2008] EWCA Civ 1445. Every item
in that series of judgements had been assessed in G's favour.
Therefore, the s.20 duty had arisen and the authority had not been
entitled to side-step that duty by giving the accommodation a
different label. Circular LAC(2003)13 stated that there might be
cases where a lone child who needed help with accommodation, but
did not need to be looked after, might appropriately be assisted
under s.17; the circular was incorrect if it suggested that, even
though the s.20(1) criteria had been met, a local authority had a
choice between s.17 and s.20 which was based upon whether the child
needed to be "looked after". (20 May 2009)
If you wish to discuss any of the items noted in this section
please contact Caraline
Johnson.
Community Engagement
Commission for Rural Communities: Briefing paper on the Local Democracy, Economic Development and Construction Bill: the Bill aims to promote local democracy and economic development and to devolve greater power to local government and communities. This briefing paper sets out the CRC's comments on the implications of the Bill for rural areas. (27 May 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Education
DCSF: Safer school partnerships guidance: provides advice on what constitutes a Safer School Partnership, the benefits, and how to set up and maintain one. It updates and replaces the Mainstreaming SSPs guidance, issued in 2006. It is aimed at head teachers, school staff and governors, police officers, local authorities, children's services and others professionally involved in keeping children and young people safe. (22 May 2009)
Education (Areas to which Pupils and Students Belong)
(Amendment) (England) Regulations 2009 (SI 2009/1301): these
regulations, which come into force on 24 June
2009, amend SI 1996/615 (the Belonging Regulations)
to make it clear that the those regulations do not have effect for
the purposes of determining the local authority which is the
responsible authority for the purposes of s.321(3) of the Education
Act 1996 (duties towards children with special educational needs).
The Regulations also remove the provisions of the Belonging
Regulations which make specific provision in relation to FE
students. (28 May 2009)
If you wish to discuss any of the items noted in this section
please contact Caraline
Johnson.
Efficiency
HM Treasury: Operational Efficiency Programme: the Operational Efficiency Programme final report, published alongside the 2009 Budget, identified a total of £15bn annual savings that could be made by the public sector, and recommended structures and tools to help organisations achieve savings and improved accountability and performance management to encourage greater value for money throughout the public sector. HM Treasury has now published separate reports on three of the Programme's five work strands:
- Collaborative procurement: analyses collaborative procurement practices both within central government and in the wider public sector;
- Property: looks at efficiency in the use of public sector property;
- Back office operations and IT: covers the potential for significant savings from public sector expenditure on back office operations and information technology.
(18 May 2009)
If you wish to discuss any of the items noted in this section
please contact Bethan
Evans.
Equality
IDeA: Equalities councillor workbook: gives a background understanding of equality issues, including the public sector equalities duties on race, disability and gender, and the launch of the new Equality Framework for Local Government. It offers an introduction to concepts, exercises and practical guidance to support ward councillors in their role as community leaders and representatives. (18 May 2009)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Health and Safety
Smith v Northamptonshire CC [2009] UKHL 27
(HL): S, a council employee, appealed against the Court of
Appeal's decision that the Council was not liable for failure to
maintain an access ramp at the home of one of its service users, C.
S was required to collect C from her home and take her to a day
centre. The NHS had installed the moveable wooden ramp some years
previously and it was left outside C's home on a permanent basis. S
was injured when the edge of the ramp gave way as she was pushing C
in a wheelchair down the ramp. The Council had inspected the ramp
but, although the edge was rotten, it was not in a state of
disrepair such as to put anybody on notice of something being
wrong. The CA held that the Council had no control over the ramp
sufficient to enable it to perform the obligations imposed by the
regulations so it followed that the ramp was not "work equipment".
The issues on appeal were whether the ramp was "work equipment"
within the meaning of reg.2(1) of the Provision and Use of Work
Equipment Regulations 1998 (SI 1998/2306) and whether it was
"provided for use or used by [the employee] at work" as required by
reg.3(2).
The House of Lords held, dismissing S's appeal, that the ramp was,
in an abstract sense, work equipment, in that it could be
contemplated that it would from time to time be used by persons
including those at work, who might include a council employee like
S, sent to the house to collect the occupant. Whether that was all
that was required to satisfy the definition of "work equipment" in
reg.2(1) was, in this case, immaterial given the second question,
which was whether it was equipment provided for use or used by S at
work. An entirely literal approach to the words "or used" in
reg.3(2) could not be correct; the test was whether the work
equipment had been provided or used in circumstances in which it
had been incorporated into, and adopted as part of, the employer's
business or other undertaking. The Council had not provided the
ramp, it neither owned nor possessed it, and nor did it have any
responsibility, or indeed any right without more, to repair it. The
fact that the Council had inspected the ramp showed merely that it
was careful, not that it controlled the ramp or had incorporated it
into its undertaking, and not that it should be strictly liable for
any defect in it. The Regulations were not an all-embracing
protection that rendered the Occupiers' Liability Acts or ordinary
common law duties of care superfluous. Courts should be careful not
to impose on employers responsibilities that went far beyond those
at which the Equipment Directive 89/655 and the 1998 Regulations
were aimed. (20 May 2009)
If you wish to discuss any of the items noted in this section
please contact Adam
Kendall.
Housing
DCLG: Tolerated trespassers - guidance for social landlords: non-statutory guidance for local housing authorities which continue to own housing stock, ALMOs and RSLs on s.299 and Sch. 11 to the Housing and Regeneration Act 2008 and the Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 (SI 2009/1262), which reform the law on tolerated trespassers by preventing the creation of tolerated trespassers in the future and restoring tenancy status to existing tolerated trespassers. (21 May 2009)
If you wish to discuss any of the items noted in this section please contact Rebecca Cobb.
Negligence
Palmer v Cornwall CC [2009] EWCA Civ 456(CA): P
appealed against the High Court's decision that the local authority
was not liable in negligence for personal injuries sustained whilst
he was a pupil at a local authority school. P, who was 14 years old
and in year 9 at school, was hit by a rock thrown at a seagull by
one of his year group while he was on the school field during his
lunch break. At that time there had been one dinner lady on duty
outside to supervise the children. The judge found that it was
likely that there had been approximately 300 children on the field
that day and that the pupils in years 9 and 10 had been adequately
supervised. P submitted that had there been proper supervision, no
stone would have been thrown.
The court held, allowing P's appeal, that to have one dinner lady
supervisor who would be stretched to supervise over 150 pupils in
years 7 and 8, only glancing occasionally at years 9 and 10, was
negligent. Furthermore, since the purpose of appropriate
supervision was to deter children from taking part in dangerous
activities, as well as to stop dangerous activities if they did
occur, a court should not be too ready to accept that the dangerous
activity would have happened in any event. The judge had also found
that P's witnesses were telling the truth and therefore there had
been no reason not to accept their evidence that if a supervisor
had been near they would not have thrown stones because they knew
that stone throwing was prohibited. (21 May 2009)
If you wish to discuss any of the items noted in this section
please contact Adam
Kendall.
Performance
IDeA:
Setting the pace - developing a framework for sector-led help:
consultation paper: suggests a new framework for
self-improvement for local authorities in England. It proposes a
greater role for councils in owning and sharing amongst themselves
the responsibility for their own improvement, which would mean a
changed role for the regional and national improvement bodies, and
a reduction in the role of central government and regulators.
Comments are required by 1 July 2009. (21 May 2009)
If you wish to discuss any of the items noted in this section
please contact Bethan
Evans.
Procurement
OGC: Procurement policy note - EU statistics on
public procurement: annual return for calendar year 2008 - Action
note 06/09: requests contracting authorities to submit annual
statistical returns on public procurement contracts awarded in
2008, in accordance with reg.40 of the Public Contracts
Regulations. Contracting authorities that are not Government
departments must submit their returns to the relevant parent body
for onward transmission to OGC. The annual returns must be
submitted by 31 July 2009. (1 May 2009)
If you wish to discuss any of the items noted in this section
please contact Tim
Heywood.
Regulatory Services
DBERR: European Services Directive - screening flowcharts for local authorities: guides local authorities through the steps involved in reviewing ("screening") any requirements that they impose on service providers and any local legislation in preparation for the EU Services Directive. (28 May 2009)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Standards
Standards Committee (Further Provisions) (England) Regulations 2009 (SI 2009/1255): these regulations, which come into force on 15 June 2009, enable the Standards Board for England to suspend a local authority standards committee’s power to undertake the initial assessment of an allegation that a member or co-opted member of its authority has failed to comply with the authority's code of conduct. They also enable two or more local authorities to establish a joint standards committee to exercise functions under Part 3 LGA 2000 and Part I LGHA 1989. In addition, the regulations revoke the Relevant Authority (Standards Committees) (Dispensations) Regulations 2002 (SI 2002/339) and replace them with new provisions prescribing the circumstances in which a standards committee may grant dispensations to members or co-opted members who would otherwise be prohibited from engaging in the business of an authority, and the procedure for doing so. (21 May 2009)
LGA: Probity in planning - the role of councillors and officers: revised guidance note on good planning practice for councillors and officers dealing with planning matters: this 2009 update provides refreshed advice on achieving the balance between the needs and interests of individual constituents and the community and the need to maintain an ethic of impartial decision-making with regards to planning decisions. It also better reflects local authorities’ roles as place shapers and the enhanced role for councillors as champions of their local communities. It recognises councillors’ ability to participate in discussions prior to the receipt of a planning application on behalf of their communities, and engaging in spatial planning policy formulation. (28 May 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Transport
DfT: Applications to the Secretary of State - A guide for applicants & travel concession authorities: sets out the requirements and the process applied by the DfT when considering applications for modification of concessionary fares schemes and arrangements made under the Transport Act 2000 and the Transport Act 1985, as amended by the Concessionary Bus Travel Act 2007. (27 May 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Bevan Brittan's Local Government Training Programme
Bevan Brittan has developed a well-recognised
programme of training designed to assist local authorities in
successfully implementing legal change. Led by key members of our
local authority team, each session will clearly explain the key
aspects of the law and the implications for local government. Using
case studies and carefully selected complementary speakers, they
will assist attendees in realising the full benefits of
implementation and the dangerous pitfalls in failure to act.
Forthcoming seminars in 2009:
- 9 June (London): Improving local democracy – the LDEDC Bill (organised by Local Government Group)
- 9 July (London): Procurement update
- 15 September (London), 16 September (Bristol), 17 September (Birmingham): Employment update
- 23 September (London): Misconduct and the Code (organised by Local Government Group)
- 29 September (London): Housing update - the new landscape
- 9 October (London): Dealing with Members (organised by Local Government Group)
- 10 November (London): Climate change and local government
-
1 December (Bristol),
3 December (Birmingham), 8 December (London): Employment law
workshop
If you wish to attend any of these sessions, or if you would like a hard copy of our Local Government Training Programme 2009 desk calendar, please contact our Events team.
