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    Employment
   Adult Social Services    Grants
   Asset Management    Performance
   Children's Services    Procurement
   Economic Development    Rating
   Education    Regulatory Services
   Bevan Brittan's Local Government Training Programme


Access to Information

Veolia ES Nottinghamshire Ltd v Nottinghamshire CC; Audit Commission (Interested Party) [2009] EWHC 2382 (Admin) (Admin Ct): V applied for an injunction to prevent the council disclosing certain documents relating to its waste PFI contract. D, a local elector, applied to the council to inspect and take copies of documents open to inspection, including all books, deeds, contracts, bills, vouchers and receipts relating to waste management in the area of the council. The issue was whether the documents fell within the statutory right of inspection and copying under s.15(1) of the Audit Commission Act 1998. V contended that the documents had been supplied to the council on a confidential basis, that the information was valuable to commercial competitors and to its subcontractors and that, were any of that information to enter the public domain, it would damage its ability to compete on bids with other local authorities and it would impair its ability to hold down subcontract prices on the contract.
The court held,  refusing the application, that the schedules to the waste management contract and monthly invoices submitted under it were documents that related to the accounts of a local authority to be audited under the 1998 Act, and any interested person was therefore entitled to inspect and take copies of those documents under s.15 of the Act. Section 15 was a mechanism of democratic accountability through involvement in the public process of audit. Assisting the audit process included an opportunity for local government electors and other persons interested to inspect and copy the accounts and related documents, and the historic role of interested persons such as local government electors in participating in the audit process would be severely diminished without such disclosure.  Regading confidentiality, the express provision for confidentiality in s.15(3) in the case of personal information suggested that commercial confidentiality was to be ignored in the interpretive exercise. Parliament had addressed the issue of confidentiality in relation to s.15 and had not considered it necessary to extend it to commercial cases; that section trumped the confidentiality obligations set out in the contract. The judge stressed, however, that s.15 did not create a general free-standing right of access to information as conferred by modern legislation, as its history lay in democratic accountability rather than the policy of transparency and openness behind the modern FOI legislation. (1 October 2009)

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

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Adult Social Services

DH: Supporting Learning Disability Partnership Boards to implement the national carers strategy: guidance to Learning Disability Partnership Boards to help them ensure that carers of people with learning disabilities and carers with learning disabilities are supported in their own right and involved in local service developments that affect their lives and the lives of the people they care for. (2 October 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: Good practice in strategic asset management: this is a detailed guide to how authorities can manage their assets better, based on the experience of six councils that are using their land and property assets in innovative and creative ways to maximise their value to the public. The guide follows the June 2009 Audit Commission study Room for Improvement which found that councils in England could make much better use of their £250bn worth of land and property. 
The Commission has also published a Briefing for elected members on managing land and buildings, which offers advice on how members can ensure their council manages its property more efficiently and effectively. (22 September 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

DCSF: Revising the National Minimum Standards (NMS) for adoption, children’s homes and fostering: seeks views on proposed revisions to the NMS for adoption, children's homes and fostering. The NMS are taken into account by Ofsted when deciding whether the service is complying with the regulations and providing an acceptable level of service. It also asks for comments on how to improve the standards further. Comments are required by 17 December 2009. (24 September 2009)

DCSF: NI 71: Children missing from home or care. LA self-evaluation scores of measures to monitor, respond to and address runaway cases: provides data on the self-evaluation scores given by each local authority in relation to available measures to monitor and respond to cases of children missing from home or care. The sum of the above scores constitutes the Overall Score for National Indicator 71. (29 September 2009)

DCSF: ContactPoint - Consultation on proposed amendments to the Children Act 2004 Information Database (England) Regulations 2007: seeks views on proposed amendments to the ContactPoint Regulations (SI 2000/2182) which provide a legal framework for the operation and maintenance of ContactPoint (formerly known as the Information Sharing Index).  The three proposed minor amendments are:

  • to give effect to the previously-announced Government commitment in response to Sir Roger Singleton's review of safeguarding arrangements in independent schools to "...ensure that pupils who receive education in schools in England, but who are not ordinarily resident in England, are covered by ContactPoint";
  • replacing the definition of ‘parental responsibility' used in the regulations with the definition of ‘parent' to match that used by schools for the collection of schools' census data; and
  • a change of terminology so that ‘targeted and specialist services' are called ‘additional services' instead.

Comments are required by 29 December 2009. (1 October 2009)

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

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Economic Development

DCLG: Local Authority Business Growth Incentives Scheme - Grant determination 2009 (no 2) (no 31/1640): sets out the 2009-10 payments of grant to local authorities in England under the LABGI scheme. (25 September 2009)

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

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DSCF: Lamb Inquiry - local authorities' learning from the eight projects: the Lamb Inquiry investigated a range of ways in which parental confidence in the special educational needs (SEN) assessment process might be improved. Eight local authorities were funded to undertake innovative projects that were concerned with improving parent confidence in the SEN process. This report presents the learning from those projects. 
Brian Lamb has written to the Secretary of State highlighting ways of improving parental confidence in the SEN system. In response, the SoS has announced more support for children with SEN to help make life easier for parents and help their children maximise their potential:

  • building on the eight innovative pilots run under the Lamb Inquiry , a second round of projects will expand into every region, including projects where assessments are more independent of the local authority. It will include a formal evaluation of how this separation impacts on parental confidence; 
  • DCSF has commissioned Toby Salt to lead an independent review into the supply of teachers trained to meet the needs of children with Severe Learning Difficulties (SLD) and Profound and Multiple Learning Difficulties (PMLD);
  • the Specialist Schools and Academies Trust will lead on a £550,000 project to develop special schools as leaders in teaching and learning practice for children with the most complex learning difficulties. 

(28 September 2009)

DCSF: Delivering the behaviour challenge - our commitment to good behaviour:  sets out the DCSF's strategy  for delivering the guarantee of good behaviour across schools in England, following on from the Steer Review. The central elements of the strategy are:

  • the new Behaviour Challenge, through which schools that have only a 'satisfactory' Ofsted grade for behaviour will be encouraged and supported to work towards the 'good' or 'outstanding' standard;
  • making behaviour improvement a priority for the Good and Great Schools programme; and
  • engaging parents through a new leaflet on how they can work with schools on pupil behaviour issues.

Appendix A contains the detailed Implementation Plan for Sir Alan Steer's final recommendations on pupil behaviour. (30 September 2009)

DCSF: Partnerships for Schools takes over delivery of all school building programmes: announces that PfS has assumed responsibility for the management and delivery of all schools capital programmes. By having a single agency dealing with all local authorities, schools, the construction industry and private sector, the Government hopes it will be easier to put in place consistent delivery models and standards and lead to better sharing of learning and good practice across the range of capital programmes. DCSF will retain a Central Capital Unit providing policy advice to Ministers that cuts across all the department’s capital programmes. (1 October 2009) 

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

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IDeA: Members' guide - top tips for making savings through better procurement in professional services: this is the first in a series of procurement guides which raise awareness among members of the importance of procurement and potential savings. It provides tips on how an authority can make savings through better procurement in professional services, focusing on temporary agency staff and consultants. This is the fourth biggest external spend area in local government, after construction, adult social care and waste. (21 September 2009)

DCLG: Drive for council efficiency saves millions for the taxpayer: reports that new published figures show that local authorities reported £1.76bn of savings during 2008-09 by making services more efficient and improving value for money. The Communities Secretary John Denham has welcomed the substantial progress made by local government, but challenges councils to continue to re-think the way they deliver services in order to make taxpayers' money work as hard as possible in the current climate. (29 September 2009)

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

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Tower Hamlets LBC v Wooster [2009] UKEAT 0441_08_1009 (EAT): the local authority appealed against the employment tribunal's decision that it had discriminated against W on the grounds of his age. W was employed by the authority as a housing officer and had been seconded to a registered social landlord. He would have been entitled to an early retirement pension if retained in employment to age 50, but the authority dismissed him on the grounds of redundancy when he was aged 49. The authority failed to find him alternative employment or to permit an extension of the secondment, despite an offer by organisation to which he was seconded to fund his continued employment to age 50. W brought a claim of unfair dismissal and age discrimination on the grounds that the local authority had failed to redeploy him, or allow the secondment to continue, because it wished to terminate his employment before he became entitled to an early pension at age 50 from the local government pension scheme. The tribunal held, as regards remedy, that it had "little doubt" that if W had not been treated unfairly and discriminated against he would have been found alternative employment
The EAT held, dismissing the authority's appeal, that, while the authority was justified in refusing to continue W's secondment for the purpose of allowing him to reach age 50 and then take early retirement (which would have been unlawful), to take into account his impending entitlement to a pension in the application of its redundancy and redeployment policy constituted age discrimination. The tribunal was entitled on the evidence to find as a practical certainty that W would, but for the matters complained of, have been found alternative employment and that the use of the phrase "little doubt" did not mean that it was obliged to make a discount for the chance that he might not have done so. (10 September 2009)

R (Age UK) v Secretary of State for Business, Innovation and Skills; Equality & Human Rights Commission and Attorney General (Interveners) [2009] EWHC 2336 (Admin) (Admin Ct): this case considered the lawfulness of the Employment Equality (Age) Regulations 2006 (SI SI 1031/2006) which implemented Equal Treatment Directive 2000/78. The case follows on from the ECJ's ruling in the Heyday case. The court held that the regulations were lawful as a wide margin was to be afforded Member States in formulating social policy, including that of protecting the labour market and the giving of certainty and corresponding focus for planning purposes for employers and employees alike. The impact of the decision is that Heyday’s challenge has been dismissed and it is still lawful for UK employers to compel employees to retire at the age of 65.  This may well change, however, when the Government conducts its review of the Default Retirement Age which it recently announced it was bringing forward to 2010. (25 September 2009)

DCLG: John Denham gives councils go ahead to raise £500m to sort equal pay: announces that the Govenrment has issued Capitalisation Directions totalling £501m  to 37 local authorities, allowing them to borrow against or sell assets so they can meet and manage the one-off costs of settling their equal pay back pay liabilities. (29 September 2009) 

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

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Audit Commission: Review arrangements for certifying claims and returns: this review looks at progress made since publication of a Commission report in 2004 which proposed new arrangements for auditing grants and promoting good practice by authorities and grant-paying bodies. It finds that the certification process provides important and valuable assurances to taxpayers over public funds, and that all parties to the process have made progress in implementing the good practices recommended by the Commission. The report shows that the Commission has redeemed its promise to ensure regularity while slimming costs; it has also comfortably exceeded its promised 25 per cent cut in fees over the five years, with auditors identifying £530m worth of errors, more than five times what their work cost. The review recommends ways in which the Government, councils and auditors can streamline certification and enhance public confidence. (28 September 2009)

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

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DCLG: Place Survey 2008, England - further results: the 2008 Place Survey provides information on people's perceptions of their local area and the local services they receive. A first set of results from the survey was released in June 2009, which focused on results and questions relating to satisfaction with local services, perceived value for money and overall satisfaction with local services. This further release summarises the remaining data from the survey, such as citizens' priorities for their local area, further information on the perceived quality of local services and more information about crime and anti social behaviour. The survey revealsd that the majority of local people are satisfied with local services; earlier results showed that overall satisfaction with where people lived was 80 per cent. However, it also shows that people also want to see improvements in extra curricular activities for teenagers, street repairs, traffic congestion and crime levels. In addition, over 60 per cent did not feel well informed about local services. (23 September 2009)

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

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OFT: Construction firms fined for illegal bid-rigging: the Office of Trading has fined 103 construction firms a total of £129.5m, with average fines of £1.26m or 1.14% of their annual global turnover, for anti-competitive practices including bid-rigging and cover-pricing, following a five-year OFT investigation. The OFT has indicated that the companies will be given time to pay the fines. The OFT says that most of the firms it investigated were involved in cover pricing; however, it found six instances of more serious anti-competitive behaviour, where successful bidders had paid an agreed sum of money to the unsuccessful bidder, known as a 'compensation payment'.
The press release includes links to a list of Parties and fines and also a Table of infringements.
The OFT has also issued an Information note to procuring entities in the public and private sectors regarding the OFT’s decision on bid rigging in the construction industry that sets out the OFT's views on steps that procurers may be considering as a consequence of the OFT's Decision: specifically, the exclusion of the parties from future tenders. It urges public bodies and employers not to blacklist the companies that have been fined because it could not investigate all companies and because the practices were "endemic" within the construction industry, so not all the perpetrators have been caught. 
(22 September 2009)

DCLG: Local government must spend £42bn better: the Communities Secretary has spoken at a meeting of procurement experts from the private sector, academia and the public sector about local authorities’ need to use their buying power to innovate and shape markets. The panel discussed the potential market shaping role of local government procurement, including its ability to encourage new and innovative technologies that can be triggered by a more open approach from local authorities, including improving access for small and local business or third sector organisations. Lessons learned from the round table will be used to direct DCLG's efforts to support and challenge work within local government as it goes forward. The press release includes examples of good local government procurement practices. (24 September 2009)

R (London Secure Services Ltd) v Youth Justice Board; Department for Children, Schools and Families (Interested Party); R (J) v Youth Justice Board; Cornwall CC, Devon CC, Department for Children, Schools and Families and Childen's Commissioner (Interested Parties); R (T) v Youth Justice Board; Secretary of State for Justice and Department for Children, Schools and Families (Interested Parties) [2009] EWHC 2347 (Admin) (Admin Ct): the three linked claims concerned the tendering process under which the YJB awarded a total of ten contracts for the provision of accommodation for children and young people in secure children's homes. The applicants applied for judicial review of the YJB's decision not to enter into long-term contracts for two homes, in South London and Devon. The ITT set out the evaluation criteria and indicated the number of places that might be awarded. The claimants challenged the application of the selection and evauation criteria, the consultation process and the failure to carry out an equality impact assessment.
The court held, dismissing the applications, that the YJB had not acted irratrionally or unlawfully when deciding to reject the two tenders. It had not been obliged to carry out an equality impact assessment and there was no obligation to carry out any consultation. (29 September 2009)

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

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Business Rate Supplements (Rateable Value Condition) (England) Regulations 2009 (SI 2009/2542): the Business Rates Supplements Act 2009 gives certain local authorities the power to levy a business rate supplement (BRS) on the national business rate with effect from 1st April 2010. BRS will only be payable in respect of non-domestic properties which have a rateable value that exceeds a prescribed amount. These regulations, which come into force on 15 October 2009, prescribe that amount as £50,000 for non-domestic properties in England. (23 September 2009)

DCLG: Business rates information letter (13/2009): 2010 Revaluation and business rate supplements: this letter covers the 2010 revaluation rateable value thresholds, transitional relief scheme and publication of draft rating lists. It also covers the Business Rate Supplements Act 2009 and regulations.  (30 September 2009) 

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

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Regulatory Services

Home Office: Consultation on transitional arrangements for changes to the regulation of lap dancing clubs and similar venues in England and Wales: the Policing and Crime Bill that is currently going therough Parliament introduces a new category of sex establishment called 'sex encounter venue' that will allow local authorities in England and Wales to regulate lap dancing clubs and similar venues under Sch.3 of the Local Government (Miscellaneous Provisions) Act 1982. This consultation seeks views on proposals for the transitional arrangements that will be set out in secondary legislation. Comments are required by 14 December 2009. (17 September 2009)

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

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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 and 2010:

 If you wish to attend any of these sessions please contact our Events team.

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