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:

  Children's Services   Grants
  Community Engagement   Members
  Discharge of Functions   Performance
  Education   Powers and Duties
  Equality   Regulatory Services
  Finance   Shared Services
  Governance   Standards
  Bevan Brittan's Local Government Training Programme


Children's Services

DCSF: myplace - further £30 million for youth centres in deprived communities: announces a further £31.6m of grants ranging between £1m and £5m each from the Big Lottery Fund. This further round of investment is targeted at communities in need of help to deliver their existing plans to change facilities available in their areas for the better, to help young people to thrive and succeed and is restricted to projects located in the one third most deprived areas of England. The closing date for applications is 30 June 2009. (5 June 2009)

DCSF: Safeguarding children and young people from sexual exploitation - supplementary guidance to Working Together to Safeguard Children: this guidance sets out how Local Safeguarding Children Board partners, practitioners and other professionals working with children and young people should work together to safeguard and promote the welfare of children and young people who are at risk of being, or who are being, sexually exploited. It is supplementary to, and should be used in conjunction with, the Government’s statutory guidance Working Together to Safeguard Children. (10 June 2009)

Child Poverty Bill: this Bill has received its 1st Reading in the House of Commons. It sets targets relating to the eradication of child poverty, and to make other provision about child poverty. The Bill requires Government to reduce poverty so families on low income do not get left behind. It puts duties on local authorities, and partner organisations like the NHS and Police to work together at local level to lift children out of poverty. It also requires Government to report to Parliament each year on progress and creates a new expert Child Poverty Commission to publish advice and encourage progress. The Bill's progress can be tracked on the Parliament Bills web page.
The key features of the Bill are set out in the DCSF Overview. In addition, the Child Poverty Unit has published a report Take up the challenge - the role of social services in increasing the take up of benefits and tax credits to reduce child poverty,  that considers how local services can reduce child poverty through helping poor families to access the benefits and tax credits to which they are entitled. It includes actions that local authorities and partners can take now to maximise families’ incomes, case studies of successful approaches and recommendations for Government on how to support local services to increase take-up. (11 June 2009)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson.

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DCLG: Communities progress report:  sets out progress made since the publication of the Communities White Paper and the proposed timescale for the implementation of policies first outlined in there. (1 June 2009)

DCLG: Empowering communities to influence local decision making - a systematic review of the evidence: this independent study examines the various ways in which local people can be empowered and encouraged to participate in their local communities. The aim of the review was to make sense of variable and often competing or contrasting evidence in order to identify which mechanisms empower, in what ways, and in what contexts.  (1 June 2009)

DCLG: Empowering communities to influence local decision making - evidence-based lessons for policy makers and practitioners:  this report draws on a systematic review of community empowerment to provide evidence-based lessons for policy makers and practitioners. The aim of the review was to make sense of variable and often competing or contrasting evidence in order to identify which mechanisms empower, in what ways, and in what contexts. (1 June 2009)

DCLG: Denham outlines plan to renew local democracy: the new Communities and Local Government Secretary John Denham has pledged to re-examine the relationship between central and local government as part of the Government's drive to renew Britain's democracy and restore trust in the political system at every level. He has announced that he will shortly consult on ideas for placing the relationship between central and local government on a stronger and clearer basis, including the option of new legislation, so that citizens can be sure that they have strong, trusted and responsive institutions. (10 June 12009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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Discharge of Functions

Legislative Reform (Local Government) (Animal Health Functions) Order 2009 (SI 2009/1375): this Order, which came into force on 31 May 2009, repeals s.101(7) of the Local Government Act 1972, which imposes a prohibition on local authorities from delegating any of their functions under the Diseases of Animals Act 1950 to each other. The effect of the Order is that local authorities will be able to arrange for other local authorities to carry out their functions of enforcing animal health controls. (30 May 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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LGA: Apprenticeships, Skills, Children and Learning Bill - House of Lords second reading briefing: this Bill received its 2nd reading in the Lords on 2 June. This briefing comments on specific aspects of the bill that affect local authorities, including the requirement for local authorities to provide education and training for those aged 16-19 and for those aged 19-25 who have had a learning difficulty assessment. (2 June 2009)

DCSF: Action plan for the 14-19 prospectus and common application process: sets out the Government’s ambition for further development of the 14-19 prospectus and implementation of the common application process. It also describes the support the department will offer local areas to help make this ambition a reality. The DCSF Deputy Director, Participation and Progression Division, has sent a letter to all local authorities on funding for the 14-19 prospectus and common application process. (4 June 2009)

DCSF: Consultation on Schools Forums (England) Regulations 2009: seeks views on proposed changes to bring academies into membership of school forums. It also proposes: to make it compulsory to include non-school members; to make early-years private, voluntary and independent representation more effective; and to change the composition of school members of schools forums to reflect locality working from 2011. Comments are required by 28 August 2009. (5 June 2009)

DCSF: Review of elective home education in England: report of the independent review, chaired by Graham Badman, that looked at the arrangements for home education in England and investigated whether there are any barriers to local authorities and other public agencies in effectively carrying out their safeguarding responsibilities in relation to home educated children. The report  makes a compelling case for substantial changes to the arrangements for supporting and monitoring home education. Its main recommendations are:

  • that local authorities should provide more support to home educating families, eg. through helping provide access to the national examination system, sports facilities, libraries and music tuition; 
  • a compulsory annual registration scheme, in which all parents who plan to home educate have to inform their local authority; 
  • at the time of registration, parents should be asked to submit a statement of their ntended approach to the child’s education including what they aim to achieve over the following 12 months; 
  • giving properly trained local authority officials the right of access to the home, following a minimum two week notification to the parents. They will check that the child is making progress against their learning statement. They will also have the right to speak to the child, to ensure they are safe and well. A written report must then be produced and shared with the parents and child; and 
  • that local authorities can refuse registration to home educate if there is clear evidence of safeguarding concerns.

Following on from the review, DCSF has issued a consultation on Home education - registration and monitoring proposals that sets out proposals for a registration scheme and arrangements for the monitoring of provision to ensure that children are receiving the education they are entitled to. Views are sought from home educating families, groups representing home educating families, local authorities, other agencies involved in the provision of services for children and the public. Comments are required by 19 October 2009. (11 June 2009)

DCSF: £200m 'co-location' fund to put schools at the heart of their communities: announces that 101 projects are to share £200m funding to bring together children and family’s services on single sites. The ‘co-location’ fund, announced as part of the Children’s Plan: One Year On report last December, is backing a wide range of projects, with between £50,000 to £10m to deliver vital investment in joined-up facilities. Projects include children’s centres; careers advice; youth clubs; health services, including mental health, drug and alcohol treatment centres; family support services; Combined Cadet Force facilities; and independent housing for young people leaving care. The Secretary of State has also also announced a pioneering £31m project, Achievement for All, to pilot innovative teaching and support for young people with special educational needs (SEN) in 10 local authorities and 450 schools – including better assessment of children to close the big achievement gaps and more engagement with parents by schools.  (11 June 2009)

House of Commons Public Accounts Committee: Building Schools for the Future - renewing the secondary school estate: this report examined the cost and progress of the programme, the use of Local Education Partnerships (LEPs), the efficiency and effectiveness of the central programme management and the effect of the recession on the programme. It concludes that it is too early to conclude whether BSF will achieve its educational objectives and to date, over-optimism has meant the programme could not live up to expectations. Establishing Partnerships for Schools to manage the programme centrally has helped local authorities to deliver more effectively, but while LEPs have potential advantages, their value for money is yet to be proven, and it will be very challenging to deliver all schools by 2023. (11 June 2009)

Ofsted: Framework for the inspection of maintained schools in England from September 2009: Ofsted has launched a revised framework for the inspection of maintained schools in England. Ofsted is changing the focus and frequency of school inspections to ensure that inspection has the greatest impact possible on school improvement and outcomes for children and young people. The views of parents and pupils will also play a more significant role in the inspection process. From September there will be more frequent inspections for schools that are inadequate or satisfactory, and a longer interval for those judged good or outstanding, while better performing schools will be inspected once in a five year period providing they do not give cause for concern. Ofsted will use annual risk assessments, looking at how schools are performing and gathering information from parents, to help decide which are to be inspected each year. (12 June 2009)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson.

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Government Equalities Office: Equality Bill - making it work: Policy proposals for specific duties - a consultation: sets out proposals for a set of specific duties to support better performance of the new Equality Duty included in the Equality Bill 2009, which is expected to be brought in in April 2011. Comments are required by 30 September 2009. (11 June 2009)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

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LGA: Experts hint at Icelandic payback: reports on the latest advice from CIPFA, which predicts that up to 95% of council money that was invested in failed Icelandic banks will be recovered. (4 June 2009)

Draft Council Tax Limitation (Maximum Amounts) (England) Order 2009: this draft Order, which will come into force tha day after it is made, relates to the “capping” of the budget requirement of Surrey Police Authority. It states the amount which this authority must not exceed as their budget requirement for the financial year 2009-10, following its designation by the Secretary of State. (10 June 2009)

HC Communities and Local Government Committee: Local authority investments: report on the Committee's inquiry into local authority investments that was prompted by the Icelandic banks collapse. The inquiry aimed to understand current practice, to study the roles and responsibilities of various groups and individuals involved, and to make recommendations intended to limit the exposure of local authority funds to such risk in future. It focuses on ensuring that the future tightening of procedures and better understanding of local authority finance leads to local authority money being invested more prudently, safely and profitably. It concludes that stronger standards of oversight must be applied by local authorities to their treasury management frameworks and to scrutinise every day decisions by significant officials. The Committee endorses the Audit Commission's censure of rudimentary mistakes made by seven local authorities. However, it argues that investment practice problems identified in that investigation extend far more widely across many other local authorities. It also criticises the Audit Commission's failure to issue sufficiently rigorous auditing guidelines for the prevailing financial climate. (11 June 2009)

If you wish to discuss any of the items noted in this section please contact Ginny Cooper.

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Electoral Commission: Electoral review of Stoke on Trent City Council: announces that the Commission is to conduct a review which will decide the number of councillors who sit on Stoke on Trent City Council and are returned from individual wards, and the names, number and boundaries of those wards. The decision was made against statutory criteria that are used when asking the Boundary Committee to undertake any electoral review. In this case, the Commission believes that carrying out an electoral review could be the first step in enabling the people of Stoke-on-Trent to secure effective and convenient local government in their city. (10 June 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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10 Downing Street: Changes to the machinery of Government: announces that DBERR and DIUS have been merged to create a new Department for Business, Innovation and Skills (DBIS) whose key role will be to build Britain’s capabilities to compete in the global economy. (5 June 2009)

Cabinet reshuffle: Full list of Cabinet members: list of Minsters and Cabinet attendees following the reshuffle. (5 June 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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Museums, Libraries and Archives Council : £100,000 fund open: invites bids from partnerships between museums, libraries and archives and self-organised groups of adult learners for funding from the MLA Informal Adult Learning Challenge Fund 2009-2010 to support them in the use of spaces and resources in creative and innovative ways. The MLA Challenge Fund is part of the implementation of a new informal adult learning movement. It is intended to encourage museums, libraries and archives to develop new approaches to partnership working. Museums, libraries and archives may apply for grants of up to £5,000 from a pot of £100,000 for projects to be delivered by the end of March 2010. The deadline for applications is 17 July 2009. (8 June 2009)

If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi.

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IDeA: Councillor's guide 2009/10: this guide provides information on being a councillor, civic life, community leadership and useful contacts. It has been revised and updated to reflect the latest legislation and thinking concerning local government in England.  (8 June 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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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 considers that to be effective the approach will, in particular, need to foster the development of a culture of openness within and across authorities, and include clearer roles for the key parts of the local government improvement architecture, authorities themselves, the RIEPs, the IDeA and the LGA. It seeks views on whether there is widespread support within local government for such a sector-led approach and if so, how far it should go and how fast; also whether there should be a comprehensive set of arrangements, to which all authorities seriously commit, which is designed to spot and prevent all potential service or corporate failure. Comments are required by 1 July 2009. (2 June 2009)

Audit Commission for Local Authorities and the National Health Service in England (Specified Organisations) (England) Order 2009 (SI 2009/1360): Sch.2A para.5(1) to the Audit Commission Act 1998, inserted by s.149 of the Local Government and Public Involvement in Health Act 2007, provides that if a “specified inspector” proposes to carry out an inspection of a “specified organisation” and the Audit Commission considers that the proposed inspection by a specified inspector would impose an unreasonable burden on the specified organisation, the Audit Commission must give notice to the specified inspector not to carry out the proposed inspection or not to carry it out in a particular manner. This Order, which comes into force on 2 July 2009, specifies the organisations in respect of which the Audit Commission is under a duty to prevent certain inspections. (9 June 2009)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

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Powers and Duties

Brent LBC v Risk Management Partners Ltd; London Authorities Mutual Ltd and Harrow LBC (Interested Parties) [2009] EWCA Civ 490 (CA): Brent appealed against the High Court's decisions that it had no power to become a participating member of a mutual insurance company, and that its award of the insurance contract to LAML breached the the Public Contracts Regulations 2006. A group of London borough councils, including Brent, decided to participate in establishing a new mutual insurance company, LAML, that would be controlled by, and run for the benefit of, the participating authorities, using their powers under s.2 LGA 2000 and s.111 LGA 1972.  It was intended that LAML would benefit its members through costs savings and improved risk management. Brent issued an invitation to tender for the insurance contract but abandoned it prior to the award; instead it directly awarded the contract to LAML, which had not participated in the procurement exercise.  RMP, a rival insurer who had tendered for the insurance contract, challenged Brent's power to enter into contracts of insurance with LAML and claimed damages for breach of Brent's obligation to comply with the procurement regime. 
The Court of Appeal held, dismissing both appeals, that (1) s.2 did not give local authorities carte blanche to make arrangements that had a potential advantage to the authority’s financial position nor was it a power to do anything that was not specifically excluded by s.3 LGA 2000. It gave a local authority power to take steps that had as their direct or indirect object some reasonably well defined outcome which it considered would promote or improve the well-being of its area. Action to reduce the costs of goods or services purchased by the authority, which did not have as its object the use of the money saved for an identified purpose which the authority considered would promote or improve well-being, did not fall within the section; nor could an action that was expected to reduce an authority's costs be regarded of itself as doing something that would promote or improve the well-being of the area; (2) the setting up of a mutual insurance company was not incidental to the functions of a local authority and so was not covered by the s.111 power. Participation in LAML was not the same as obtaining insurance under conventional commercial arrangements, but was only incidental to that incidental function; (3) the principles in Teckal srl v Comune di Viano (C107/98) did apply to contracts covered by the 2006 Regulations and the first condition of that exemption could be satisfied by the joint control of a group of local authorities. However, while arrangements between participating authorities could in principle come within the exemption, here LAML could not be regarded as a department of each of the participating local authorities. (9 June 2009)
Bevan Brittan has issued an Authority Alert on the implications of this decision for local authorities: Mutual disapopintment: Court of Appeal rules on use of the well-being power. We have also issued a Procurement Alert that discusses the procurement issues in this case in more detail.

Infolines Public Networks Ltd v Nottingham City Council (Unreported) (CA): IPN, a public service undertaker, appealed against the dismissal of its counterclaim for wrongful interference with goods against the local authority. The local authority, acting as the relevant street authority for the purposes of the New Roads and Street Works Act 1991, had removed two of IPN's telephone kiosks from the city centre pursuant to its emergency works powers under s.52(1) on the basis that IPN had failed to repair defects in them or to make them safe for public use. The local authority returned any money that was in the kiosks to IPN and then disposed of the kiosks and the equipment therein. It did not notify IPN of its intention to dispose of the kiosks. Subsequently, the local authority commenced proceedings to recover the costs of removing the kiosks against IPN. The judge found that the local authority was entitled, in the exercise of its statutory powers, to remove the kiosks by reason of its emergency works powers under s.52(1) and was therefore entitled to the costs of such removal. The judge dismissed IPN's counterclaim.
The Court of Appeal held, allowing IPN's appeal, that the local authority's disposal of the telephone kiosks was not a legitimate use of its emergency works powers under s.52. Emergency powers were provided to the authority in order to protect the public from danger, conferring upon it the power to interfere with someone else's property. In those circumstances, the court should interpret the powers of s.52(2) in their narrow and strict sense. On that basis, disposal could not be said to be a legitimate emergency power under s.52(2). The local authority was obliged to store any offending articles removed under s.52(1) and to notify the owner of such removal and storage before it could legitimately dispose of the articles free from civil liability. (11 June 2009)
The judgment is available on Lawtel (password required).

If you wish to discuss any of the items noted in this section please contact Bethan Evans or Peter Keith-Lucas.

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Regulatory Services

DBERR: The European Services Directive - guidance for competent authorities: this guidance highlights suggested directions that competent authorities may wish to take in implementing the European Services Directive. A "competent authority" is a body that regulates specific activities related to service provision, or which is responsible for authorisations and/or other formalities (e.g. registers, licences, permits) with which a business must comply in order to establish and carry out business in the UK, and so includes all local authorities. The Directive aims to open up the internal market in service by removing unnecessary administrative barriers, which should free up competent authority resources, and by introducing electronic processing of licence applications that should result in cost and time savings for both businesses and competent authorities. (5 June 2009)

Draft Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009: the Regulators’ Compliance Code and the Principles of Good Regulation aim to embed a risk-based and targeted approach to regulatory enforcement among regulators. Many regulators are under a statutory duty to have regard to the Code and the Principles when they carry out specified functions. This draft Order, which should come into force on 1 October 2009, proposes to amend SI 2007/3544 so as to extend the coverage of the Code and Pirnciples to the functions of:

  • local authorities in Scotland, Northern Ireland and Wales, where these functions concern matters which are reserved to the UK Parliament; 
  • public sector regulators in England, where the exercise of these functions is aimed at businesses or third sector organisations; and 
  • other relevant regulatory functions, including those relating to enforcement of money laundering regulations.

 (9 June 2009)

If you wish to discuss any of the items noted in this section please contact Adam Kendall.

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Shared Services

Her Majesty's Inspectorate of Constabulary: Getting together - a better deal for the public through joint working: this review looks at how police forces can collaborate more successfully to provide the best deal for the public in terms of preventing serious crime and reducing financial costs. The report finds that forces and authorities support the idea of collaboration in principle but, they struggle in practice against a number of barriers – some real and some perceived - to joint working. It proposes a new approach, the ‘Informed Choice Model’,  to help them overcome these barriers and get the best deal for the public. (10 June 2009)

Training and Development Agency for Schools: Culture for all - integrating cultural opportunities into extended services and services for young people: provides an overview of how children’s services and cultural organisations can work together, not just as partners but as joint providers. (10 June 2009)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

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Standards Board for England: Assessing the impact and effectiveness of the ethical framework in local government in England - First interim report: presents the initial findings of a five year study that aimed to address three main questions: 

  • Has the ethical framework caused any changes in local government processes, systems, values and culture? 
  • Has the ethical framework had any effect on the conduct of councillors?
  • Has the ethical framework had any effect on public attitudes to local government, either directly, or through any changes in council processes and/or councillor conduct?

(9 June 2009)

Standards Board for England: Other action guidance: if an assessment sub-committee decides to refer a complaint to the monitoring officer, it can direct them to investigate the matter or alternatively, it can direct them to take steps other than  carrying out an investigation, known as "other action". This advice for Standards Committees sets out what "other action" is, when it might be used, and how the process can be managed. (10 June 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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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:

 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.

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