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    Finance
   Asset Management    Governance
   Children's Services    Maladministration
   Community Engagement    Procurement
   Education    Regulatory Services
   Employment    Trading
   Bevan Brittan's Local Government Training Programme

Adult Social Services

Care Quality Commission: Reviews in 2009/10: describes how the CQC will assess the provision and commissioning of health and adult social care in the coming year. Building on the work of predecessor regulators, the Commission is introducing an approach that assesses quality across health and social care as it moves towards a single registration system for providers of care in both sectors in 2010. The approach features both periodic and special reviews and draws attention to how the sectors of health, mental health and adult social care work together. There will also be indicators that measure the outcomes for people and their experience of care. (23 June 2009)

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

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Asset Management

Audit Commission: Room for improvement - a review of strategic asset management in local government: this report discusses councils' management of their estate. It aims to help councillors, local authority chief executives, directors of resources, finance and property managers understand how a more strategic approach to asset management could secure better value for taxpayers’ money. The Commission finds that few councils are managing strategically their £250bn of assets and warns that, in the current economic climate, councils will need to do far better if they are to achieve expected savings and maintain services in the coming years.  It calls on Government to resolve the apparent conflict of priorities between disposing of properties to maximise receipts and enhancing estates to deliver better public services. The Commission also wants better incentives for councils to rationalise their estates and relaxation of rules restricting use of the proceeds of asset sales. (17 June 2009)

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

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Children's Services

Ofsted: Safeguarding - DCSF letters and documents: this web page contains links to documents cover various aspects of safeguarding children and the Independent Safeguarding Authority. The letters include:

Training and Development Agency: Engaging schools in sustainable Every Child Matters and extended services: resource pack for local authorities and school leaders to help them develop extended services and meet the goals of Every Child Matters for children and young people. It brings together the learning from a two-year partnership project involving 13 local authorities, 176 schools, the National College of School Leadership and the TDA. (16 June 2009)

DCSF: Local authorities set to increase Friday and Saturday night activities for young people: announces Open Weekend on Friday 10 July and Saturday 11 July as part of the Government's Aiming High for Young People initiative. It provides a key opportunity for local authorities and their partners to offer more things to do and places to go for young people on Friday and Saturday nights, when young people most want them and communities feel they most need them. (19 June 2009) 

DCSF: Promoting the health of looked after children - a study to inform revision of the 2002 guidance: this research aimed to provide evidence to assist DCSF and the DH in revising the guidance on improving the health of looked after children. The study took a multi-method approach and included: 50 individual interviews with key stakeholders at national, regional and local level; an overview of relevant research and statistics; written comments from professionals engaged in implementing the guidance; and an analysis of information in Joint Area Reviews relevant to the health of looked after children. (25 June 2009)

DCSF: Effectiveness of the new Local Safeguarding Children Boards in England - interim report: sets out the initial findings of research into how LSCBs manage their safeguarding role and if the new systems and arrangements are fit for purpose and are influencing and improving frontline practice. (25 June 2009)

DCSF: Understanding serious case reviews and their impact: A biennial analysis of serious case reviews 2005-07: this fourth biennial overview of serious case reviews across England was commissioned to draw out themes and trends so that lessons learnt from these cases can inform both policy and practice. (25 June 2009)

DCSF: LAC (0906092007) - Child Development Grant Pilots grant: 2009-10: this circular sets out the grant allocations, conditions of grant and payment arrangements for those authorities delivering the child development grant pilot. (26 June 2009)

Childcare (Inspections) (Amendment) Regulations 2009 (SI 2009/1508): these regulations, which come into force on 31 July 2009, amend the prescribed interval for certain childcare inspections in SI 2008/1729 so that early years provision which is inspected on or after 1 September 2008 and before 1 August 2009 will not have to be inspected again before 1 August 2012. (24 June 2009)

Draft Children Act 1989 (Higher Education Bursary) (England) Regulations 2009: the Children and Young Persons Act 2008 amended s.23C of the Childen Act 1989 so as to impose a duty on local authorities to pay a bursary to former looked after children who undertake a course of higher education (as defined by the Teaching and Higher Education Act 1998). These draft regulations set the amount of the higher education bursary at £2,000 and prescribe for its payment. (16 June 2009)

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

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Community Engagement

DCLG: Place survey - England: headline results: the 2008 Place Survey provides information on people's perceptions of their local area and the local services they receive. This release summarises the headline findings for England and Government Office regions, with results for individual local authorities. The survey collected information on 18 national indicators for local government, used to measure local government performance for 152 county councils, metropolitan district councils, London boroughs and unitary authorities. (23 June 2009)

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

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DCSF: National Challenge - planning for schools in the most challenging cirumcstances in 2009/10: this letter from the SoS to Chief Executives and Directors of Children's Services invites them to make plans for continuing work on secondary school transformation under the National Challenge programme to transform secondary school standards and to eliminate low attainment.  The Government has pledged that, by 2011, no school will have fewer than 30% of pupils gaining five or more higher-level GCSEs, including English and mathematics. (11 June 2009)

DCSF: Diploma gateway key principles - planning towards the 2013 entitlement: Gateway 4 is a key milestone in local authority and consortia planning for the delivery of all Diploma lines in their area. This document sets out key principles for Gateway 4, to help local authorities and consortia plan for the 2013 entitlement. An important feature of Gateway 4 will be to ask LAs to submit a strategic plan showing how access to all Diploma lines will be made available. (15 June 2009)

DCSF: Gifted and talented education - guidance on addressing under-achievement: planning a whole school approach: this document is intended as a resource for local authorities to use to support schools in developing whole-school strategies to address underachievement. The information and guidance builds on previous publications by offering a definition of underachievement in the context of gifted and talented education, and suggests a model for planning whole-school provision within the context of personalisation. It also provides examples of some effective strategies for recognising and addressing underachievement from current practice in schools and signposts further relevant materials and resources. (16 June 2009)

Ofsted: The exclusion from school of children aged four to seven: this survey explores why some children aged seven and under are being excluded from primary schools. It looks at the ways in which some schools manage to avoid using exclusion. It identifies factors such as the school's philosophy, a supportive and stable school environment, and strong relationships between the school and parents as important in preventing very young children from being excluded. (24 June 2009)

CBI: Making the grade - transforming education through Building Schools for the Future: this report finds that the BSF programme has made significant progress, but it raises the CBI's concerns that there is still not enough of a focus on educational transformation. Drawing on the findings of the first CBI report on BSF, the report calls for a step change in BSF to reduce procurement costs and timetables and a renewed focus on educational transformation. (18 June 2009)

DCSF: Partnership for Schools to manage all school building programmes: announces that PfS is to take over the management and delivery of all school building and refurbishment programmes from 1 October 2009, including the Primary Capital Programme, Devolved Formula Capital and targeted capital programmes, as well as Building Schools for the Future (BSF). The DCSF will retain a Central Capital Unit providing policy advice to ministers that cuts across all the department’s capital programmes. There is a table showing the transfer of Schools' Capital Programmes to Partnerships for Schools with descriptions of each programme and the amount of the devolved fund to 2011. (16 June 2009)

DCSF: Learner support programme - discretionary funding guidance and requirements 2009/10: this guidance for local authorities and providers sets out the requirements and the actions that will need to be taken into account for the application of discretionary support funds and the education maintenance allowance. It includes the eligibility criteria and the priorities for disbursing the funding. (16 June 2009)

Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009 (SI 2009/1387): these regulations, which come into force on 1 September 2009, amend SI 2008/2945 regarding the designation of a person as the Special Educational Needs Co-ordinator (SENCO) of maintained school in England. The effect of the regulations is that all newly appointed SENCOs (i.e. those with less than a total of twelve months' experience in the role) must undertake nationally approved training. A person is given three years to complete the training. After that point in time the governing body will be required to ensure that the person only remains as the SENCO if they hold the relevant qualification. (16 June 2009)

Education and Skills Act 2008 (Commencement No. 3) Order 2009 (SI 2009/1513 (C.78)): brings certain sections of the 2008 Act into force on 1 September 2009, including s.81 (careers education: information and advice) and ss.146-148 relating to independent schools. (18 June 2009)

Alexis v Newham LBC [2009] EWHC 1323 (QB) (QBD): S, a former teacher, claimed damages for personal injuries sustained while she was employed by the LEA. Another teacher allowed three pupils to access to S's locked classroom while S was away, for the purpose of obtaining their study materials. While in the classroom, one of the pupils added whiteboard cleaning fluid to S's bottled water. When S returned, she drank the liquid in the bottle and suffered physical injuries and significant psychological consequences. S alleged that the relevant teacher had negligently allowed the pupils unsupervised access to her classroom, contrary to established practice.
The court held that the duty of care owed by the LEA to S was that of a reasonable employer to an employee. None of the teachers had previously had any reason to suspect that the pupil was likely to do what she did and it could not be said that the teacher who gave her the keys to S's classroom was negligent in so doing. On that basis, S failed to establish any breach of the duty of care owed to her by the LEA. (15 June 2009)

R (JK) v Haringey LBC; Waltham Forest LBC (Interested Party) [2009] EWHC 1393 (Admin) (Admin Ct): JK, who was aged 12, applied for judicial review of HLBC's decision that another LEA, WF, was responsible for maintaining JK's statement of special educational needs. JK had been made the subject of a special educational needs statement that was, initially, maintained by H. JK was subsequently permanently excluded from his secondary school and his home behaviour deteriorated to such an extent that HLBC provided accommodation for him in WF's area. HLBC claimed that, whilst it retained financial responsibility and oversight for JK's education, it had transferred the administrative management of his case to WF.
The court held, granting JK's application, that the legal duty to maintain a statement of special educational needs and to ensure that it was applied in practice rested squarely with HLBC. There was no assertion that HLBC had ever made arrangements for JK to be educated within WF's area using its powers under s.101(1)(b) LGA 1972  and HLBC could not attempt to justify its actions by retrospective reliance upon a statutory provision which it did not have in mind when it placed JK with WF. (18 June 2009)

R (E) v JFS Governing Body and Admissions Panel of JFS; Secretary of State for Education and Brent LBC (Interested Parties); United Synagogue (Intervener) [2009] EWCA Civ 626 (CA): E, who was Jewish by birth, appealed against the refusal of his application for judicial review of a Jewish school's admissions criteria. E's wife (W) was Jewish by conversion. The school claimed that E and W's son was not eligible for admission to the school as it did not recognise W's conversion. 
The Court of Appeal held, allowing E's appeal, that the requirement that to qualify for admission to a Jewish school a pupil's mother had to be Jewish, whether by descent or by conversion, was a test of ethnicity rather than religion which contravened the Race Relations Act 1976. That did not mean that no Jewish faith school could ever give preference to Jewish children but that eligibility had to depend on faith, however defined, and not on ethnicity. (25 June 2009)

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

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Cheltenham BC v Laird [2009] EWHC 1253 (QB) (QBD): the Council brought a claim against L for damages for making fraudulent or negligent misrepresentations in her job application. L was offered the post of Managing Director with the Council, subject to medical clearance. Occupational health services declared her to be fit on the basis of her completed medical questionnaire.  Within a few months of her appointment, various grievances were raised by the Leader and senior officers against L and L raised a grievance against the Leader and eight elected members.  After L requested that her email account was deleted, she was suspended.  At various stages, she became unwell and suffered from panic attacks. The Council obtained opinions from occupational health services and a psychiatrist, which eventually resulted in her being granted ill health retirement. The Council sought to recover over £500,000 for the time and expense it had incurred from disputes and almost £450,000 for the cost of her ill health retirement. L brought various counter-claims in her defence. 
The court dismissed the Council’s claim and L’s counter-claims.  The judge found that it was highly likely that if L had disclosed details of her medical history, the Council would not have employed her; however, on the basis of the brief and poorly drafted questionnaire, L was found to have answered honestly. The judge gave a view on the costs the Council would have been able to recover if he had found L had answered the questionnaire fraudulently. He found that where the costs related to the disputes, these would have been recoverable. These included the cost of additional Human Resources support, legal advice, the DIP investigation, a medical expert report, some administrative costs and management time. (15 June 2009)
This case raises a number of interesting issues concerning pre-employment disclosure and disability discrimination. We have issued an Employment Alert that contains tips for dealing with recruitment and pre-employment questionnaires, and for searching an employee’s office and investigating an employee’s email account: Cheltenham BC v Laird - lessons learned.

Hartlepool BC v Llewellyn; Middlesbrough BC v Matthews; South Tyneside BC v McAvoy (EAT): the EAT has held that male colleagues of women who had succeeded in equal pay claims against their employer were entitled to bring contingent equal pay claims using the successful female claimants as comparators, and could recover sums equivalent to awards made to the female claimants. (24 June 2009)

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

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Audit Commission: Risk and return - English local authorities and the Icelandic banks: this updated report examines local authorities' deposits in the Icelandic banks and their UK subsidiaries. The report was originally published in March 2009 but has been amended in light of representations made by named authorities, threats of legal action by two of them, and misleading press reports. It finds that the majority of councils acted properly in managing their investments and were alert to the risks. Authorities halved their investments in Icelandic banks between January and October 2008. However, one in four (127) local authorities share £954m at risk in Icelandic banks. (25 June 2009)

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

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IDeA: Cultural change: this reports looks at local authority Chief Executives' perspectives on developing the right organisational culture for the future. It  focuses on the Chief Executive’s role in shaping culture, and is based on interviews with nine Chief Executives across England. The report also aims to clarify what cultural change is about and how it might be tackled, feeding into and fuelling a wider debate about the most effective things that Chief Executives, working with councillors, can do to help to develop a ‘fit for the future’ culture in their councils. (16 June 2009)

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

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DCLG: Getting it rights, and righting the wrongs: sets out the findings of an independent review by David Cook, Chief Executive of Kettering BC, into redress for citizens when their council services fail to meet agreed standards. The review looked at the experience of service and redress provision from the customer's viewpoint. The report identifies the three areas which it thinks make the biggest difference to the customer experience:

  • The service and remedy pledge: clearly setting out how you will get it right, and right any wrongs; 
  • The importance of the frontline: understanding that good people are more important than process, and 
  • Customer-focused partnerships: making sure that partnerships deliver a seamless experience and an economy of effort for the customer.

The review sets out a number of recommendations. It has also produced a Practitioners’ Toolkit that is a practical aid to help councils work with customers and other partners to identify key issues for improvement in their service provision and systems of redress. 
The Government has announced that it is supporting the review's recommendation for local councils to pilot the new toolkit to help councils and their partners measure their current service, find out what their customers really want and help them identify ways to improve including when things go wrong. Funding of £900,000 has been set aside to support nine pilots, details of which will be announced shortly. (17 June 2009)

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

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Commission v Federal Republic of Germany (C480/06) (ECJ): the City of Hamburg and four other local contracting authorities entered into a 20 year cooperation agreement in respect of waste disposal under which Hamburg agreed to reserve a specified tonnage of waste incineration capacity for the four local authorities at a new waste treatment facility which it proposed to procure. Payments were to be made by the four local authorities to Hamburg for the disposal services using a pricing formula. The local authorities also agreed to divert waste away from the treatment facility in the event of technical problems with the facility as well as agreeing various other aspects of joint working. Hamburg then entered into a separate contract with the operator of the new waste treatment facility which was due to be completed by 1999. The Commission acknowledged that it was already established law under the Teckal exception that, had the contracting authorities jointly set up a separate legal body under their ownership and control which was then given the task of dealing with the waste disposal function, the arrangements between the company and the authorities would not fall under the public procurement rules. It argued, however, that in the absence of such a body for inter-municipal cooperation, the 1995 contract between the authorities should be regarded as the four authorities procuring waste disposal services from the City of Hamburg, as a public services contract and so should have been the subject of a competitive call for tender under the procurement rules.
The court rejected the Commission’s arguments and confirmed that there was no obligation on a public authority to use a particular legal form for setting up cooperation arrangements.  It agreed that a contract between contracting authorities could be a contract to which the EU procurement rules applied but that in this case the contract was not caught. This contract established cooperation between local authorities with the aim of ensuring that a public task which they all have to perform is carried out; it was an agreement relating to inter-municipal cooperation and not a public services contract. Critically, it set the scene for Hamburg to undertake a competitive procurement of waste disposal facilities on behalf of all five authorities and it was not intended to avoid competition in that procurement process. (9 June 2009) 

MoJ: The costs of corruption: transcript of a speech by the Justice Secretary Jack Straw at the Fifth European Forum on Anti-corruption in which he discusses the Government's plans to improve the legal framework relating to bribery and corruption, improvement in enforcement, and the need for businesses to undergo cultural change in order to resist bribes and to report allegations of corruption. (23 June 2009)

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

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Regulatory Services

LBRO: National Enforcement Priorities final report - Action research on the National Enforcement Priorities: this report looks at integrating the new National Enforcement Priorities (fair trading, air quality, alcohol licensing, hygiene of food businesses, improving health in the workplace, and animal and public health).  It features case studies from councils that show both strong similarities in their approaches to enforcement, and also important differences of emphasis and perspective. (15 June 2009)

Draft Legislative Reform (Dangerous Wild Animals) (Licensing) Order 2009: this draft Order proposes to amend the Dangerous Wild Animals Act 1976 so as to modernise the licensing and inspection of the private keeping of dangerous wild animals. Changes include:

  • no mandatory requirement for inspection for  certain replacement licences, to allow targeting of inspections where there may be concerns.  Local authorities will still be able to make inspections whenever required;
  • validity of a licence extended from a maximum of one year to two years; and
  • licences will come into force immediately upon being granted.

DEFRA has announced that it will be publishing new guidance for local authorities and wildlife keepers.  (18 June 2009)

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

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Audit Commission: Welcomes invitation to look at whether council newspaper advertising should be curbed: reports that the Commission will be discussing the scope of the review of council funding for local newspapers announced by the Culture Secretary, Ben Bradshaw, following the White Paper 'Digital Britain' which raised concerns about the growth of councils' own newspapers. The White Paper said it might be 'against the public interest' if they attracted advertising revenue away from local papers in commercial ownership. (18 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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