Distinguishing unwise decision-making from lacking capacity
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Read More21/08/2009
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:
Access to Information
MoJ: Summary guidance on publishing Freedom of Information data: encourages local government and other bodies subject to the FOI legislation to publish to the same standard as the central government and Crown-body information that is currently produced by MoJ. The guidance includes a section that covers various aspects of the MoJ's freedom of information monitoring statistics, including monitoring proformas and a series of presentational tables that can be used for quarterly and annual reporting. (10 August 2009)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Adult Social Services
DH: Swine flu - letter to Directors of Adult Social
Services: sets out the actions that Directors of Adult
Social Services should be undertaking to deal with swine
flu. (5 August 2009)
The Care Quality Commission has also issued flu pandemic advice for social care
providers (12 August 2009).
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Asset Management
Audit Commission: Room for improvement - a briefing for elected members on managing land and buildings: drawing on the findings of the Commission's report "Room for improvement", this briefing explains how councillors, cabinet members and anyone else with audit responsibilities can ensure that their council manages its property more efficiently and effectively. The briefing explores some of the themes from the main report which are of particular relevance for elected members, and includes a checklist of questions to help them assess how well their council is performing. (20 August 2009)
If you wish to discuss any of the items noted in this section please contact Alison Buckingham.
Children's Services
DCSF: Guidance on the employment of children: explains the law on child employment for local authorities and others. It also reminds local authorities of the importance of raising awareness among employers of the legal requirements. It include some best practice advice to help those implementing it to deal with the sorts of practical questions they regularly face. The guidance covers the special rules which apply to the employment of children under the school leaving age; it does not discuss general employment law nor the rules which apply where a child is engaged in a performance. (19 August 2009)
DCSF: Early identification, assessment of needs and intervention - the Common Assessment Framework for children and young people: A guide for managers: this non-statutory guidance for managers has been updated and re-titled in order to reflect policy developments and include revisions identified in consultation with practitioners and managers across the children and young people’s workforce. It also seeks to link together the processes and tools, to show how collectively they provide a package of support to help practitioners and managers implement integrated working in their practice. DCSF has also published revised guidance for practitioners. (21 August 2009)
DCSF: Coordinating and delivering integrated services for children and young people - the team around the child (TAC) and the lead professional: A guide for managers: this non-statutory guidance has been updated in order to reflect policy developments. It includes revisions identified in consultation with practitioners and managers across the children and young people’s workforce. DCSF has also published revised guidance for practitioners. (21 August 2009)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson. ^ back to the topContracting Out
Heald v Brent LBC [2009] EWCA Civ 930 (CA):
H requested a review under s.202 of the Housing Act
1996 of the suitability of temporary accommodation provided by the
local authority or of the refusal of her homelessness application.
The local authority had contracted out the review function to a
company, Housing Reviews Ltd (HR), and the reviews were
carried out by P, who was a director and the controlling
shareholder of HR. P's decision had been adopted by the local
authority. The county court held that the relevant legislation
permitted the contracting out of the review function and that the
review decision was not legally defective. H appealed,
contending that it was unlawful for the local authority to
contract out the carrying out of its reviews, with the result that
the reviews carried out were themselves unlawful, there was an
appearance of bias on the part of P which meant that the reviews
were not fairly conducted, and her rights under Art.6 ECHR were
infringed.
The court held, dismissing H's appeal, that s.70 of the the
Deregulation and Contracting Out Act 1994 and the Local Authorities
(Contracting Out of Allocation of Housing and Homelessness
Functions) Order 1996 clearly permitted the review function to be
contracted out to a third party. Review by a third party did not
necessarily infringe art.6, assuming that it applied. A third party
would not necessarily be any less impartial than an employee;
whether he could be regarded as less independent might depend on
the particular facts, and in particular the terms of the contract
between the authority and the third party. P's decisions on review
were adopted by the authority, and it was therefore irrelevant that
someone like P was not democratically elected or directly
democratically accountable. An objective and well-informed observer
would not think that there was a real danger of bias on the part of
P and the review decisions were not marred by apparent
bias. (20 August 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Delivery of Services
DBIS: EU Services Directive - Point of Single Contact: overview of tasks - August to December 2009: the EU Services Directive requires all competent and local authorities to cooperate with each other regarding requests for information about services providers. In order to facilitate this, the European Commission has developed a web based tool, the Internal Market Information (IMI) System, that is only accessible to registered authorities. This letter sets out tasks that local authorities must complete by December 2009 to implement the Point of Single Contact (now called the Electronic Licence Management System (ELMS)) which will enable authorities to pick up their applications under the Services Directive and configure information specific to their own authority. This task list will be updated each month. DBIS will issue further guidance in September. (6 August 2009)
If you wish to discuss any of the items noted in this section please contact Martin Carroll.
Economic Development
DCLG: Local economic assessments - draft statutory guidance: the Local Democracy, Economic Development and Construction Bill currently going through Parliament imposes a new duty on all county councils and unitary authorities to prepare an assessment of the economic conditions of their area. The Government intends to formally consult on draft statutory guidance once the Bill has been enacted. This pre-consultation draft guidance gives local authorities and partners early sight of the Government's thinking on how the proposed new duty should be carried out, to enable local authorities to start thinking about how they should prepare for the new duty. It explains what the new duty is intended to achieve, how assessments should be taken forward and what they should address. (18 August 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^ back to the top
Education
Ofsted: Implementation of 14-19 reforms, including the introduction of diplomas: this second report evaluating the progress made in implementing 14-19 reforms follows up some of the key strategic issues of the first report in 2008. It focuses on the introduction of the new 14-19 diplomas. Overall, 14-19 initiatives have continued to widen opportunities and meet the needs of young people. Progress in introducing the diplomas was promising across the 23 consortia visited, many of which have been at the forefront of 14-19 developments. While the main subject learning of the diplomas was generally going well, other elements, particularly functional skills, needed more attention. (17 August 2009)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Governance
Audit Commission: Improving strategic risk management arrangements in local public bodies and partnerships: the Commission has launched a new risk management diagnostic tool for use across all sectors which focuses on risk leadership, partnership risk management and risk related outcomes. 'Risk it to make it' is based on tried and tested frameworks devised by HM Treasury and contains information on what represents excellent and strongly improving performance through integrated risk management. (10 August 2009)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Grants
Office of the Third Sector: The Communitybuilders £70 million investment fund will help build more cohesive, empowered and active communities: gives information on the Communitybuilders Fund that will provide a mix of loans, grants and mentoring support to a range of community anchor-type organisations across England. It is designed to help empower citizens and communities by strengthening the resilience of multi-purpose community-led organisations across England through a mixture of financial and advisory support. (19 August 2009)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Housing
Tenant Services Authority / Audit Commission: Memorandum of Understanding: the TSA and the Commission have signed an MoU that sets out how the two organisations work together in regulating and inspecting providers of affordable housing, and supporting the role of local authorities in their strategic housing role. The Commission will support the TSA's regulatory role through carrying out inspection on behalf of the TSA, while the TSA will support the Commission in its role on Comprehensive Area Assessments. The MoU covers: information exchange and communication; co-ordinated regulatory activity; promoting excellence; Board and Executive liaison; and consultation on matters of common interest. (10 August 2009)
If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi.
Litigation
Corby Group Litigation v Corby DC (Costs) [2009] EWHC
2109 (TCC): the court was asked to determine costs
following resolution of group litigation issues in favour of the
claimants, C (see Re Corby Group Litigation [2009] EWHC
1944 reported in Authority Update 7/8/09). The court held that there
was no good reason not to make a costs order at this stage. The
group litigation was effectively over and C had substantially won
on the group litigation issues. It was therefore appropriate to
order the local authority to pay C's costs to be assessed if not
agreed, subject to any reduction. There was no reason why an
interim costs payment order should not be made and the court had a
discretion to order one. C had incurred substantial
costs, even though they had some after-the-event insurance and
their legal team had been operating on a conditional fee agreement
basis. The court awarded an interim payment of £1.6m, which took
into account various matters including the reduction that would
probably be taken on a costs assessment. (11 August 2009)
Corby BC has announced that it has applied for permission to
appeal against the judgment concerning the group litigation
issues. (20 August 2009)
If you wish to discuss any of the items noted in this section please contact Kate Beynon.
Partnerships
LGA: Welcome to Local Partnerships: provides information on Local Partnerships, a new joint venture between the LGA and Partnerships UK, incorporating 4Ps, that will work alongside local public bodies to improve their sourcing and commissioning skills, programme and project management capabilities, procurement, negotiating and contract management capacity, and their delivery, funding and partnering abilities. (21 August 2009)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Standards
Standards for England: Suspending a standards committee's assessment and review functions: guidance on SfE's power under the Standards Committee (Further Provisions) Regulations 2009 to direct that a standards committee’s assessment and review functions be suspended and instead undertaken either by SfE or by another relevant authority. (21 August 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^ back to the top
Structural Change
Boundary Committee: Cornwall electoral review - further consultation: the Committee has opened a further consultation period for Cornwall Council’s electoral arrangements to ensure that local people get the most effective representation. Following analysis of the responses received during Stage Three, the Committee is seeking further views in four specific areas: Bude; Camborne & Redruth; China Clay and St Blazey, Fowey & Lostwithiel; and Crowan & Helston. Comments are required by 16 September 2009. (10 August 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^ back to the top
Traffic and Transport
Workplace Parking Levy (England) Regulations 2009 (SI 2009/2085): these regulations, which come into force on 1 October 2009, provide for general issues concerning workplace parking levy (WPL) licensing schemes and charges under Chapter II of Part III of the Transport Act 2000 throughout England outside Greater London, and for the recovery of charges imposed under such schemes. Decisions about whether to introduce a WPL scheme and details of how it will operate are the responsibility of local authorities in England and Wales. The regulations include provisions on liablity to pay WPL charges and penalty charges, the imposition, payment and level of penalty charges, and notification, adjudication and enforcement of penalty charges, for appeals. (31 July 2009)
DfT: Code of Practice for the co-ordination of street works and works for road purposes and related matters: this revised third edition of the Code provides practical guidance on a range of responsibilities for authorities and undertakers of street and road work. It includes a chapter on overrun charges under s.74 of the New Roads and Street Works Act 1991. This version replaces the March 2008 edition. (19 August 2009)
OFT: Local bus services - report on the market study and proposed decision to make a market investigation reference: sets out the findings of a market study into local bus services in the UK that has identified a number of features of local bus markets that could prevent, restrict or distort competition in the sector, relating both to commercial services and services subsidised by local transport authorities. The OFT has stated that, as a result of these findings, it is proposing to refer the sector (excluding London) to the Competition Commission for a more detailed investigation. Comments on this decision must be submitted by 15 October 2009. (20 August 2009)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^ back to the top
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 September (Bristol): Fraud: maintaining operational efficiency
- 15 September (London), 16 September (Bristol), 17 September (Birmingham): Employment update
- 22 September (London): Procurement 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.