Authority Update | Bevan Brittan LLP

13/11/2009

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	Education
Adult Social Services	Enforcement
Anti Social Behaviour	Grants
Asset Management	Procurement
Children's Services	Regulatory Services
Coroners	Standards
Democracy
Bevan Brittan's Local Government Training Programme

Access to Information

Audit Commission: Nothing but the truth?: this discussion paper looks at the reliability of the data underpinning local service delivery. It sets out issues as the basis for discussion on how to ensure data about local public services is fit for purpose. Comments must be submitted by 2 March 2010. (5 November 2009)

MoJ: Civil monetary penalties - setting the maximum penalty: seeks views on a proposal to introduce a maximum civil monetary penalty of £500,000 for serious breaches of the Data Protection Act, to provide the Information Commissioner's Office (ICO) with a proportionate sanction to impose on those who seriously contravene the data protection principles. Comments are required by 21 December 2009.
The ICO has issued draft guidance about the issue of monetary penalties that sets out the criteria it will use when serving a monetary penalty notice. (9 November 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

MoJ: Forced Marriage (Civil Protection) Act 2007 - Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working: anyone threatened with forced marriage or forced to marry against their will can apply for a Forced Marriage Protection Order. Third parties can also apply for a protection order with the leave of the court. This guidance explains how local authorities can now seek a protection order for vulnerable adults and children without leave of the court. (2 November 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

Heron v Plymouth City Council (Unreported, QBD): the Divisional Court has held that it was inappropriate to include in an ASBO a condition preventing an individual from causing harm, alarm or distress to any person, as such a condition was no more than a repetition of offences contrary to the Public Order Act 1986, and was too imprecise to be of any real efficacy. (12 November 2009)
The judgment is available on Lawtel (password required).

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

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Asset Management

Improvement Network: Local government asset sales: this briefing covers public sector asset sales, especially as they relate to local government. It focuses on the Prime Minister’s recent announcement that local authorities should sell assets of a value of £13bn. (12 November 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: Commercial and procurement skills for commissioners of children's services: this web page links to a set of guidance documents designed to help commissioners understand and apply commercial and procurement skills in their work. The documents cover: the key principles of procurement; an overview of both strategic procurement and the contracting process; an overview of resource mapping; and a basic jigsaw tool designed to help commissioners understand the key principles of change management. (10 November 2009)

DCSF: Consultation on new statutory Children's Trust guidance and new Children and Young People's Plan Regulations: seeks views on draft guidance on Children's Trusts and Children and Young People's Plans that consolidates statutory guidance. It also includes further advice arising from the recent changes to the Children Act 2004 made by the Apprenticeships, Skills, Children and Learning Act 2009. The document also includes the draft new Children and Young People's Plan Regulations that will revoke and replace SI 2005/2149. The regulations cover the content of the Plan, the Plan's publication, and the people and bodies whom the Board must consult when drawing up the Plan, along with the annual review of the Plan and its revision. Comments are required by 29 January 2010. (12 November 2009)

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

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Coroners

Coroners and Justice Act 2009: this Act has received Royal Assent. It includes the first major reforms for over 100 years of the coroner system by creating a new framework for England and Wales, establishing more consistent inspection and quality standards, and incorporating new rights of appeal for bereaved families who are unhappy with a coroner’s decision. The new Coroners’ Service, with national leadership provided by a new Chief Coroner, will reduce delays and improve the quality of investigations and inquests through improved powers and guidance for coroners. The Act comes into force on various dates, including 12 November 2009, 1 January 2010, 12 January 2010, and appointed days. The text of the Act will be available shortly on the OPSI website. (12 November 2009)

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

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Democracy

Local Democracy, Economic Development and Construction Act 2009: this Act has received Royal Assent. The Act includes:

new powers for councils to set up mutual insurance companies;
a new duty on councils to promote local democracy and ensure all sections of their community understand how the council and other public bodies work, who makes the decisions and how they can get involved;
a requirement for councils to respond to local petitions on the issues that are of most importance to their local communities;
strengthening overview and scrutiny through the creation of a scrutiny officer and broadening the scope of what joint overview and scrutiny committees can consider;
a new requirement for local authorities to undertake an economic assessment of their area;
new powers to create Economic Prosperity Boards,- to give local authorities the ability to create an executive decision-making body at sub-regional level to promote economic development and regeneration across council borders, within the overall framework of the regional strategy; and
the creation of Multi Area Agreements (MAAs) with statutory duties, that will provide a further option for local authorities to work together on economic development by allowing MAAs to be put on a similar statutory footing to Local Area Agreements.

The majority of the Act comes into force on a day or days to be appointed, although some provisions come into force on 12 January 2010.(12 November 2009)

LGA: Who’s in charge? - the quango report cards: this report examines three principles for public services: value for money, accountability, and openness, in relation to a group of quangos and in relation to local government. The report aims to: raise the profile of public spending on quangos; highlight concerns around overlap, duplication and poor use of public money; involve the quangos in the kind of public debate and scrutiny which councils face regularly; and cite examples of good practice, and encourage quangos to work better with councils. The report also highlights the positive track record of local government on the three principles, and the benefits of local democracy as a framework for providing public services. (13 November 2009)

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

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Education

Apprenticeships, Skills, Children and Learning Act 2009: this Act has received Royal Assent. It bringing in a host of new measures to prepare for the country’s long-term economic and social needs and build on the huge rise in school standards over the last decade. It includes:

a stronger, more accountable and effective infrastructure to oversee further education and training, with local authorities taking on responsibility for securing education and training for all 16 to 19 year olds;
a new parental complaints service, extending the jurisdiction of the Local Government ombudsman;
Children’s Trust Boards are put on a statutory footing;
extension of the duty to co-operate to promote children’s well-being to include all maintained schools, Academies, SFCs, FE colleges and Jobcentre Plus;
local authorities will have responsibility for securing education for young people in juvenile custody;
local authorities will be ordered to replace low performing Pupil Referral Units (PRUs) with a specified alternative, and to hold a competition for replacement PRUs;
new measures which will build on the huge improvement in school standards over the last decade, including establishing Ofqual as the independent, statutory regulator of qualifications and assessment, reporting to Parliament and the Qualifications and Curriculum Development Agency to develop and advise Ministers on the curriculum and related qualifications; and
the right for employees to request time off to train throughout their working lives. The introduction of the right will be phased and will be made available to employees in large businesses from April 2010 before being extended to all employees from April 2011.

The majority of the Act comes into force on a day or days to be appointed. The text of the Act will be available shortly on the OPSI website. (12 November 2009).

Office of the Schools Adjudicator: Annual Report 2008/09: sets out the Chief Schools Adjudicator's report on the school admissions system and the operation of the new Admissions Code. It includes the CSA's reports and recommendations on his investigation of three specific issues:

(2 November 2009)

Ofsted: Inspection service providers’ protocol for managing conflicts of interest: this protocol is designed to deal with actual and potential conflicts of interest, as well as addressing perceived conflicts of interest. It provides clarity for providers, inspection service providers and Ofsted, and should minimise the potential disruption and the increased workload that result from conflicts of interest. (3 November 2009)

DCSF: Health and safety of learners outside the classroom (HASLOC) – revision of guidance: seeks views on revised guidance on sensible risk management, how to reduce red tape, and how and why staff can expect to be treated fairly if a participant is injured despite their care. The new guidance will replace the 1998 good practice guide Health and Safety of Pupils on Educational Visits. Comments are required by 8 February 2010. (6 November 2009)

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

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Enforcement

Home Office: Regulation of Investigatory Powers Act 2000: consolidating orders and codes of practice: consultation and response: in April 2009 the Home Office issued a consultation which reviewed the way that public agencies, offices and councils use covert investigation techniques under RIPA. It focused on how local authorities use RIPA to tackle local crime and disorder and proposed, among other things, to raise the rank of those in local authorities who are allowed to authorise use of RIPA techniques, involve local councillors and improve the training and guidance available. This document summarises the responses to the consultation. It states that the Government will bring forward new legislation and related codes of practice that will include measures to:

clarify the test of necessity and proportionality so techniques will not be used to investigate dog fouling or people putting bins out a day early;
raise the rank of authorising officer for RIPA techniques in local authorities to senior executive at a minimum of 'director' level;
give elected councillors a role in overseeing the way local authorities use covert investigatory techniques;
require constituents' communications with MPs on constituency business to be treated as confidential information, and therefore subject to authorisation by a higher rank of officer; and
treat covert surveillance of legal consultations as 'intrusive' rather than 'directed' surveillance, meaning it can only be carried out by a very limited number of public authorities.

(4 November 2009)

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

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Grants

DfT: Local authority special grant funding in 2010/11 for the national bus concession in England: seeks views on the distribution of the concessionary travel special grant allocations to local authorities for 2010/11. The funding is for councils that administer the free off-peak local bus travel scheme. The consultation concerns the distribution of funding for the concession only and in no way affects passenger’s rights to free off-peak local bus travel throughout England. Comments are required by 30 December 2009. (4 November 2009)

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

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Procurement

IDeA: Top tips for making savings through better procurement in construction: guide for members on how their authority could make savings through better procurement. (4 November 2009)

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

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Regulatory Services

Stratford on Avon DC v Dyde (Unreported) (QBD): the court held that a taxi driver who conveyed passengers by taxi for a fixed fare which greatly exceeded the metered fare for that journey was acting contrary to s.67 of the Local Government (Miscellaneous Provisions) Act 1976. It was irrelevant that the fare had been arranged between the passengers and the taxi firm where the taxi driver knew that it was a criminal offence to undertake such journeys and knew that the fare was excessive. (4 November 2009)
The judgment is available on Lawtel (password required).

LBRO: Plea from the red tape cutters: calls on business people to do their bit to help simplify regulation and reduce the costs of compliance by engaging with a number of initiatives that will improve their relationships with local regulators, and make a significant reduction in the time and costs associated with compliance. For example, businesses can take part in Primary Authority agreements, which bring together firms with multiple sites into partnership with a single local authority to handle all their regulatory responsibilities; they can also take part in Trading Places that encourages closer contact between businesses and their local regulators, and gives enforcement officers the opportunity to see the impact of their decisions by spending time with local companies. (5 November 2009)

DBIS: Street trading and pedlary laws - A joint consultation on modernising street trading and pedlar legislation, and on draft guidance on the current regime: seeks views on the case for amending and modernising the law as it applies to the control of street trading and the certification of pedlars, together with draft guidance for pedlars, street traders and enforcers in England and Wales. The proposals include:

making the street trading and pedlary regulatory regime more proportionate and effective;
providing local authorities with additional enforcement options in respect of illegal street trading;
updating the Pedlars Act 1871 to modernise the certification scheme and the definition of a pedlar; and
introducing a means by which local authorities might exert proportionate limits on certified pedlar activity in designated areas.

Comments are required by 29 January 2010. (6 November 2009)

LBRO: Strategic implications of shared working in regulatory services: this report looks at the strategic implications of shared working in regulatory services and provides criteria for developing successful collaborative working arrangements.
LBRO has also published Are you looking at shared regulatory services?, a help sheet that raises questions for local authorities to consider before implementing shared delivery of services within or across local authorities. (10 November 2009)

Policing and Crime Act 2009: this Act has received Royal Assent. Its provisions include greater powers for local authorities to control the opening and regulation of lap-dancing clubs, and power for police and local authorities to apply for injunctions against people involved in gang-related violence. The text of the Act will be available shortly on the OPSI website. (12 November 2009)

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

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Standards

Standards for England: Online guides: SfE has produced a range of online guides covering the most frequent topics of telephone enquiries to their advisers about the Code of Conduct. The guides offer clear explanations about complicated parts of the revised Code and are additional to their existing guidance. New online guides cover:

(10 November 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 and 2010: