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    Housing
   Anti Social Behaviour    Land Charges
   Charities and Trusts    Parish Councils
   Education    Performance
   Fraud    Trading
   Bevan Brittan's Local Government Training Programme


Adult Social Services

DH: Guidance on direct payments for community care, services for carers and children's services: England 2009: this updated guidance assists local authorities in making direct payments, and provides guidance on how they might manage and administer direct payments. It replaces the 2003 direct payments guidance. The guidance has been updated to reflect recent legislative changes that extend direct payments to previously excluded groups. (4 September 2009)

IDeA: Commissioning for carers: this document, intended primarily for local NHS and council commissioners in England, covers the commissioning of adult services that impact adult carers, including services for the people whom carers look after. (8 September 2009)

R (Domb) v Hammersmith & Fulham LBC; Equality and Human Rights Commission (Intervener) [2009] EWCA Civ 941 (CA): D and others appealed against the dismissal of their claim for judicial review of the local authority's decision to introduce charges for its non-residential home care services, pursuant to s.17 of the Health and Social Services and Social Security Adjudications Act 1983. They claimed that, in making the decision to introduce charges, the authority had failed to have due regard to its disability equality duties contained in s.49A of the Disability Discrimination Act 1995 and also to its gender and race equality duties under s.76A of the Sex Discrimination Act 1975 and s.71 of the Race Relations Act 1976 respectively.
The court held, dismissing the appeal, that there was no evidence that the local authority did not have due regard to the relevant equality duties as a matter of substance as well as form. On the contrary, not only had a careful consultation been carried out, in which the principled opposition to a charging scheme had been stressed and was reported on in the report to Cabinet, but the report underlined in the strongest terms that the issue and occasion required the decision makers to take care before they acted. Smaller points on the detail of the impact assessment and/or report did not lead to the conclusion that there had been any material failure of due regard. The failure to make specific mention of the racial and gender equality duties in the report was not a serious flaw, given the evidence that there would be no disproportionate adverse impact on racial groups and women. (8 September 2009)

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

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Anti Social Behaviour

Swindon BC v Redpath [2009] EWCA Civ 943 (CA): this case considered the meaning of "housing-related conduct" in s.153A(1) of the Housing Act 1996 and whether there a sufficient nexus between the local authority and its ex-tenant , R, in respect of his anti-social behaviour against victims in the neighbourhood where he used to live so as to give the court jurisdiction to make an anti social behaviour injunction (ASBI). R appealed against an ASBI lasting for a year that was granted to the local authority before R was evicted from his tenancy. He submitted that, since he was no longer a local authority tenant, none of the main victims were local authority tenants and none of the property involved was the local authority's (apart from a block of garages), the court had no jurisdiction to make the injunction because R's anti social conduct was not "housing-related" within the meaning of s.153A(1) since it did not directly or indirectly relate to or affect the housing management functions of the relevant landlord.
The court held, dismissing R's appeal, that it was clearly part of a relevant landlord's housing functions to preserve the peace in the neighbourhood of its residential property by seeking injunctions to restrain anti social behaviour. In the context of promoting well-being and keeping the peace between neighbours, the powers and functions of a local authority should not be artificially narrowed where the broad range of victims within the meaning of s.153A(3) were imposed upon. R's conduct, taken as a whole, was "housing-related". Viewed as a whole, the local authority's housing management functions embraced its responsibility to its continuing tenants and also to owner-occupiers in the neighbourhood for the conduct of its former tenant. (11 September 2009)

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

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Charities and Trusts

Office of the Third Sector: Charitable Incorporated Organisation - summary of consultation responses and next steps: sets out the Government's response to the consultation on the Charitable Incorporated Organisation (CIO), a new legal form for charities being introduced under the Charities Act 2006. The Government and the Charity Commision have agreed to make a number of important changes to the initial proposals including:

  • ensuring a robust duty of care by removing a proposal that CIO trustees could in some circumstances take less responsibility for their charity’s activities;
  • tightening up rules on access to personal information in the registers of trustees and members that CIOs will have to maintain; and
  • replacing a number of minor criminal offences for administrative failings with a power for the Charity Commission to direct rectification.

The CIO should become an option for charities starting from spring 2010. Both new and existing charities will be able to consider becoming a CIO, although other forms of incorporation will also remain available.  (17 September 2009)

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

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DCSF: 200th Academy opens a year early as Ministers set out new plans to open up programme to new sponsors: announces changes to the Academies programme to open it up to new sponsors. The changes include the abolition of the £2m sponsorship fee. The test for sponsors will now be the organisation’s educational track record, their skills and leadership and their commitment to working with local parents, teachers and pupils, rather than their ability to contribute financially.  (7 September 2009)

HSE: HSE warns schools after pupil is injured on work experience: reports  that Wolverhampton Magistrates’ Court  has given one year’s conditional discharge to a Stafford company, Making Learning Work Ltd, and ordered it to pay costs of £22,000, for breaching s.3(1) of the Health & Safety at Work etc Act 1974 following an injury to a pupil on a placement in January 2006. The company was employed by Deansfield High School, Wolverhampton, to locate extended work experience placements for pupils. The HSE is warning schools to make sure that full health and safety checks are carried out before pupils head out on work experience. (8 September 2009)

DCSF: Ed Balls calls for more co-op schools: reports on the Schools Secretary's launch launch of West Oldham Cooperative Trust, where he called on more schools to consider the cooperative trust model under which local communities can come together to give input, help govern and have direct power over the running of their local schools. Schools that join the Trust Schools Programme receive up to £10,000 from Government to support the costs of setting up a trust, while those wishing to adopt the cooperative model are able to recoup an extra £5,000 to fund training and consultancy services to assist in developing this innovative model. The Government has set a target of more than 200 cooperative trust schools to be set up over the next year.  (11 September 2009)

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

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Audit Commission: Protecting the public purse: this report considers the key fraud risks and pressures facing councils and related bodies and identifies good practice in fighting fraud. It finds that housing tenancy fraud could be tying up at least 50,000 council and housing association properties worth more than £2bn, and that council taxpayers could be losing almost £2m a week to fraudsters claiming a 25 per cent single person discount on their council tax. The report calls on councils to reassess their counter fraud plans as a matter of urgency and to ensure that staff understand, and have faith in, whistle-blowing arrangements.(15 September 2009)

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

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Local Authorities (Capital Finance and Accounting) (England) (Amendment) (No.2) Regulations 2009 (SI 2009/2272): these regulations, which come into force on 1 October 2009, amend SI 2003/3146 so as to allow local authorities to retain the capital receipts arising from the sales of dwellings (in most cases under the Right to Buy), where those dwellings are the subject of agreements under s.80B of the Local Government and Housing Act 1989 (inserted by s.313 of the Housing and Regeneration Act 2008) and the capital receipts are used for the provision of affordable housing or on regeneration projects. (26 August 2009)

Audit Commission: Building better lives - Getting the best from strategic housing: this report finds that councils feel pressured into focusing on building brand new housing - 94 per cent of councils have prioritised new and/or affordable housing targets through their local area agreements, but fewer than a third prioritised targets relating to their existing housing stock. This is despite the financial savings, environmental improvements and social benefits of doing so. It notes that if councils thought of housing more broadly, they could do more to combat poverty, ill-health, educational under-achievement and help strengthen their local communities. The recession makes a strategic view of housing all the more important. (9 September 2009)
The Commission has published a number of supporting documents, including:

DCLG: Healey gives green light to council house building programme: announces the 47 successful bids for £127m funding for just over 2,000 new council homes. A full breakdown of the bidders can be found on the HCA’s LA New Build web page. (9 September 2009)

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

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Land Charges

Local Land Charges (Amendment) Rules 2009 (SI 2009/2494 (L.27)): these reules, which come into force on 1 January 2010, amend SI 1977/985 so as to increase the fee payable for a personal search of the local land charges register from £11 to £22. (16 September 2009)

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

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Parish Councils

Commission for Rural Communities: Helping parish and town councils work with unitary local authorities: this short guide has been developed to support county associations of local councils in their work to help parish and town councils engage effectively with principal authorities. (9 September 2009)

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

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Audit Commission: Frequently asked questions (FAQs) on the National Indicator Set: the National Indicator Set (NIS) are the measures on which central Government performance manages outcomes delivered by local government working alone or in partnership. These FAQs are based on the questions that the Commission's Area Information Team has received most often since the implementation of the NIS. (15 September 2009) 

Audit Commission: CAA - an introductory guide: provides gives an introduction to comprehensive area assessment. (18 September 2009)

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

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Local Government (Best Value Authorities) (Power to Trade) (England) Order 2009 (SI 2009/2393): this Order, which comes into force on 1 October 2009, extends the power to trade under s.95 LGA 2003 to all English best value authorities and fire and rescue authorities, subject to certain conditions. It revokes and replaces SI 2004/1705. (8 September 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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