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    Finance
   Adult Social Services    Highways
   Anti Social Behaviour    Markets
   Beacon Scheme    Powers and Duties
   Children's Services    Procurement
   Delivery of Services    Regulatory Services
   Democracy    Vetting and Barring
   Education    Wales
   Bevan Brittan's Local Government Training Programme


Access to Information

BBC v Information Commissioner [2009] EWHC 2348 (Admin) (Admin Ct): the BBC appealed against the Information Tribunal's decision that it was obliged to disclose certain information about programming budgets. The issue was whether the information requested was held, at the time it was requested, "…for purposes other than those of journalism, art or literature" within the meaning of that phrase in Part VI of Sch.1 to the Freedom of Information Act 2000. The Commissioner accepted that the requested information supported the creation of programme content but concluded that the information was held predominantly for operational purposes.
The court held, allowing the appeal, that the "predominant purpose" test was inconsistent with either reading of the statutory language and was not the law. The words in the schedule meant that the BBC had no obligation to disclose information held to any significant extent for the purposes of journalism, art or literature, whether or not the information was also held for other purposes. If the information was held for mixed purposes, including to any significant extent the purposes listed in the schedule or one of them, then the information was not disclosable.  (2 October 2009)

MoJ: Knowing or reckless misuse of personal data - introducing custodial sentences: seeks views on tougher penalties for the misuse of personal data. It proposes custodial sanctions for those found guilty of offences under s.55 of the Data Protection Act 1998 of knowingly or recklessly obtaining, disclosing, selling or procuring the disclosure of personal data without the consent of the data controller. It also proposes a new defence under s.55 relating to the purposes of journalism, art and literature. Comments are required by 7 January 2010. (15 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

Joseph Rowntree Foundation: Identifying a fairer system for funding adult social care: this discussion paper analyses the Green Paper Shaping the future of care together. It considers whether the Government is taking steps to ensure that arrangements for the care and support of older people are fair,  and whether the Green Paper was detailed enough to determine whether people on different incomes may 'win' or 'lose' under any new set of proposals. (7 October 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

Home Office: More support for victims as Home Secretary demands tough local action against anti-social behaviour: announces a new package of measures to tackle the harmful impact of disorder and harassment that can make life a misery for local residents. The measures include:

  • better support for victims of ASB, with almost £2.8m over the next two years for a network of 85 victims and witness champions to be set up in priority areas;
  • driving up prosecutions when ASBOs are breached, with a clear expectation that local areas ensure court action is taken against those who break the law by breaching ASBOs, a new assessment of how breaches are currently being dealt with and new guidance; and
  • minimum standards for areas; 62 areas where more than 25 per cent of the public feel ASB is a big problem will be given additional challenge and support to improve.

(13 October 2009)

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

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Beacon Scheme

IDeA: Local Innovation Awards scheme: Round 10 of the Beacon Scheme will finish in March 2010. The scheme is then being replaced by the new Local Innovation Awards scheme that will recognise, celebrate and award partnerships who can demonstrate that they have innovative services, ideas and ways of working that bring real benefits to citizens. Award holders will receive a financial incentive to enhance improvement on behalf of the sector. Four new awards will recognise major achievements in economic recovery, policing, social care and education; there are also two further 'challenge' categories that will reward the most innovative authorities, plus a category of individual awards for 'bright ideas' from front line delivery staff that relate to the other six thematic areas. Authorities must submit their entries by 27 October 2009; the awards will be given in March 2010.  (6 October 2009)

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

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Children's Services

DCSF: Consultation on draft Code of Practice on provision of the free entitlement for 3 and 4 year olds: seeks views on changes to delivery of the free entitlement for three and four-year-olds, which will be implemented through a revised Code of Practice for local authorities from September 2010 and new draft regulations reflecting the increase in the entitlement. There is also an impact assessment on the extension from 12.5 hours to 15 hours. (7 October 2009)

DCSF: Children's Secretary - no regulation for reciprocal childcare between friends: announces that the Children’s Secretary has asked Ofsted, with immediate effect, to treat all childcare arrangements made between friends with no financial reward and of mutual aid as beyond regulated childcare and therefore without requirement of regulation and registration. He is also setting in train the process required to clarify the relevant legislation to exempt from registration reciprocal childcare arrangements between friends. (12 October 2009)

Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Fees and Frequency of Inspections) (Children’s Homes etc) (Amendment) Regulations 2009 (SI 2009/2724): these regulations, which come into force on 2 November 2009, amend SI 2007/694 so as to reduce or cap the annual fees that are to be paid under the Care Standards Act 2000, the Education and Inspections Act 2006 and the Children Act 1989 to HM Chief Inspector in respect of fostering agencies, residential family centres, boarding schools, residential colleges, residential special schools and in respect of local authority adoption functions. The amendments reduce the fees payable by those providers who have been identified as paying more than the full cost of inspection and regulation, so as to reflect the average actual cost. (12 October 2009)

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

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Delivery of Services

Audit Commission: The impact of the recession on benefits services: the Commission has published the results of its confidential on line survey that was sent out in June 2009 all heads of benefit services in England. The survey results informed the Commission's report When it comes to the crunch (August 2009) that looked at how local authorities are responding to the 2008/09 recession. The report warned that councils should prepare for worsening social impact as unemployment rises; demand for benefits, welfare and help with debt are growing, and social problems such as domestic violence and mental ill-health are expected to follow as the recession deepens. (6 October 2009)

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

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DCLG: Standing for office: Time-off entitlements - Government response: sets out the Government's response to the eptember 2008 consultation that sought views on how to make it easier for people to volunteer for key roles in their local community. The govenrment states that it is committed to working with a range of organisations to promote civic participation. It has also announced a campaign to encourage more companies to give staff time off to do public duties. (15 October 2009)

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

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DCSF: Independent review of home education - Government response: sets out the Government's response to Graham Badman's review of elective home education in England. It contains details of a new support package for home educated children that includes better access to GCSEs, vocational qualifications and further education. The proposed changes to monitoring arrangements will also make sure that the right checks and balances are in place so all children receive a suitable education, in a safe environment. The response also outlines that more work will be done to clarify what is ‘suitable and effective’ home education to support new guidance to local authorities on supporting and monitoring home educators that will emphasise how local authorities can work with home educating parents to make sure that the needs of all children, including those with special educational needs, can be met in the home environment where appropriate. The guidance will take account of findings from the Lamb Inquiry, which will be published later this year. (9 October 2009)

TDA: Transforming lives - extended services and special schools: contains information and real practice examples demonstrating how special schools, in a range of settings and contexts, are using extended services to improve outcomes for pupils and support for parents. The supplement also looks at how special schools are using consultation techniques to design services for maximum impact, accessing funding and overcoming challenges. (8 October 2009)

School Staffing (England) Regulations 2009 (SI 2009/2680): these regulations, which come into force on 2 November 2009, consolidate the School Staffing (England) Regulations 2003 (SI 2003/1963) and its amending regulations regarding the staffing of maintained shcools. They also incorporate several new provisions, including: placing a new duty on the governing body to ensure the head teacher complies with the duties imposed and benefits from entitlements conferred on the head teacher by any order made under s.122 of the Education Act 2002; and making it mandatory for at least one person involved in the interviewing of job applicants at a school to be trained in safer recruitment techniques. (9 October 2009)

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

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LGA: Councils repaid millions in Icelandic cash: new figures from the LGA show that administrators for the Icelandic banks have repaid almost £70m to local authorities across the UK, with at least £30m more expected to be repaid by the end of the year. Initial payments have been made by administrators for Heritable and Kaupthing Singer and Friedlander, which were registered in Britain. Iceland-registered Glitnir and Landsbanki are expected to have funds to repay local authorities who had deposits with the banks, but this will not be confirmed until the Icelandic authorities have concluded the winding-up process. (5 October 2009)

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

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DfT: Government crackdown on road works disruption: the Government is considering radical plans to tackle the disruption caused by road works, including increasing maximum daily charges from £2,500 to as much as £25,000, to encourage companies to complete works on time. It has also announced that approval has been given to the London permit scheme, which gives 18 London boroughs and Transport for London more power to coordinate street works. (15 October 2009)

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

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DCLG: Government response to the Select Committee report "Market failure? - Can the traditional markets survive?": sets out the response to the CLG Select Committee's July 2009 report that looked at whether whether local authorities and central government should be doing more to support traditional retail markets such as covered and uncovered markets, specialist markets and particularly farmers' markets. That report found that local authorities have a leading role in owning, regulating and nurturing markets but that a national champion working with the industry was needed. The Government will therefore establish a new body that will bring together key government departments, representatives from the retail markets industry and the Local Government Association to champion theinterests of all markets, raise their profile and ensure the industry has a voice across government policy. (12 October 2009)

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

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Powers and Duties

DCLG: Councils get urgent new powers to create mutual insurance companies: announces that amendments have been laid to the Local Democracy, Local Developent and Construction  Bill currently going through the Commons, that will give local authorities power to set up and participate in mutual insurance companies. The amendments result from the LAML decision (Brent LBC v Risk Management Partners Ltd [2009] EWCA Civ 490) in which the CA held that local authorities did not have power under either s.2 LGA 2000 or s.111 LGA 1972 to set up mutual insurance companies. The Bill had its 3rd Reading in the Commons on 13 October, and is likely to receive Royal Assent by the end of this month. (12 October 2009)
The new clauses and explanatory notes are available on the Parliamentary Bills web page.
DCLG has published an Impact Assessment on Providing powers for best value authorities to participate in mutual insurance arrangements that includes a report by LG Futures Ltd on the financial impact of providing local authorities and their partners with the power to establish and participate in a mutual insurance company.

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

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R (Chandler) v Secretary of State for Children, Schools and Families; University College London and Camden LBC (Interested Parties) [2009] EWCA Civ 1011 (CA): this appeal concerned the SoS's decision to approve UCL's expression of interest to sponsor an academy. The issues revolved around the process that must be adopted by a public authority when making arrangements with a sponsor for establishing a school as an Academy, and in particular whether, if the sponsor was prepared to assume the management of the school for no remuneration, the arrangements fell within the public procurement regime.
The court held, dismissing C's appeal, that arrangements made on the basis that no remuneration or benefit was given by the contracting authority to the service provider were not within the Public Procurement Directive 2004/18 or the Public Contracts Regulations 2006. Further, the words "on the market" required the participants in the market to be intending to make a profit from contracting to provide services offered by them, and that requirement had not been satisfied in this case. In addition, C was only challenging the SoS's decision because she was opposed to the institution of academy schools, and so was seeking to use the public procurement regime for a purpose for which it was not created. Therefore, it was outside the proper function of public law remedies to give her standing to pursue her claim. (9 October 2009)

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

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Regulatory Services

DCMS: Consultation on a proposal to introduce a new process for electronic applications under the Licensing Act 2003: seeks views on a proposal to amend the Licensing Act 2003 and associated regulations to introduce a new process for making online applications and notifications. This is being done to comply with the EU Services Directive, which requires all Member States to put in place a system to allow service providers located in the EU to apply for, vary and pay for licences and permits online - the Point of Single Contact. Comments are required by 13 November 2009. (1 October 2009)

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

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Vetting and Barring

Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (SI 2009/2611 (C.115)): this Order launches the new vetting and barring scheme on 12 October 2009 by bringing s.3 of the Safeguarding Vulnerable Groups Act 2006 into force on that day. That section bars from regulated activity a person who is included in either the children’s barred list or the adults’ barred list. It also brings into force ss.7, 9 and other sections in the Act regarding offences in relation to a person who engages in regulated activity whilst on one of the barred lists. 
The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (SI 2009/2615 (C.114)) brings into force on 12 October 2009 amendments to, and the repeal of, provisions in the Police Act 1997 relating to enhanced criminal record certificates, and also contains transitional provision relating to the issuing of such certificates and to the functions of the Independent Barring Board.

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

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Local Government and Public Involvement in Health Act 2007 (Commencement No. 2) (Wales) Order 2009 (SI 2009/2539 (W.203) (C.105)): this Order brings s.126 of the Local Government and Public Involvement in Health Act 2007 into force in Wales on 1 October 2009. Section 126 amends s.19 of the Police and Justice Act 2006 regarding local authority crime and disorder committees.  

Education and Inspections Act 2006 (Commencement No. 4 and Transitional Provisions) (Wales) Order 2009 (SI 2009/2545 (W.207) (C.107)): this Order brings sections 169, 170, and 171 of the Education and Inspections Act 2006 (Prohibition on participation in management of independent school) into force in Wales on 12 October 2009.  

Education (Independent Schools) (Unsuitable Persons) (Wales) Regulations 2009 (SI 2009/2558 (W.208)): these regulations, which came into force on 12 October 2009, prohibit an individual who is the subject of  a direction, order or decision described in reg.3 from carrying out  the prescribed kind of work at an independent school. (21 September 2009)

Local Authorities (Case and Interim Case Tribunals and Standards Committees) (Amendment) (Wales) Regulations 2009 (SI 2009/2578 (W.209)): these regulations, which come into force in Wales on 19 October 2009, amend the Local Government Investigations (Functions of Monitoring Officers and Standards Committees) (Wales) Regulations 2001 (SI 2001/2281 (W.171)) and the Adjudications by Case Tribunals and Interim Case Tribunals (Wales) Regulations 2001 (SI 2001/2288 (W.176)) regarding the investigation of standards complaints.  (25 September 2009)

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

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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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