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
   Anti Social Behaviour    Health and Social Care
   Children's Services    Legislation
   Democracy    Library Services
   Disability Discrimination    Performance
   Education    Procurement
   Efficiency    Regulatory Services
   Executive Arrangements
   Bevan Brittan's Local Government Training Programme


Access to Information

DCLG: Re-mapping the future for Ordnance Survey - making public data public: announces plans to give the public more access to Ordnance Survey (OS) maps from April 2010, as part of a Government drive to open up data to improve transparency. The Government is to consult in December on proposals to release OS data relating to electoral and local authority boundaries, postcode areas and mid scale mapping information for free re-use, including commercially. Mid-scale digital mapping information would also be released in the same way. The highest-specification Ordnance Survey products and services, such as those used by property developers or the utility companies, would be charged for on a cost-reflective basis. (17 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

DCLG: John Denham announces extra support for communities to tackle anti-social behaviour: announces a £10m funding package for training and support to help people tackle anti-social behaviour, together with new measures to tackle anti-social behaviour for people living in social housing.  (20 November 2009)

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

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Children's Services

DCSF: Statutory guidance on promoting the health and well-being of looked after children: this statutory guidance is issued to local authorities, PCTs and SHAs under ss.10 & 11 of the Children Act 2004. It sets out their responsibilities for the care of looked after children. (16 November 2009)

DCSF: Care matters - Ministerial stocktake report: this is the first annual report on the Care Matters programme, a wide ranging set of reforms to the care system bought in to improve the service that vulnerable children and young people receive. It sets out the progress to date, the range of measures introduced since Care Matters and outlines the Government’s priorities for the care system for 2010. (16 November 2009)

Cabinet Office: Realising young potential - supporting care leavers into education, employment and training: this report aims to support local authority Leaving Care Teams and their partners to further help young people who have left care to access education, employment and training. It includes 10 recommendations, with agreed actions and practical examples of how some local authorities are addressing issues identified in the report. (18 November 2009)

DH: Improving safety, reducing harm - children, young people and domestic violence: this toolkit provides: specific information about children, domestic violence and related issues; an overview of Every Child Matters and the tiers of intervention; principles of commissioning services; risk assessment and safety planning information; guidance for schools; clear explanations of key standards and policies; sample forms; and key fact sheets. (18 November 2009)

DCSF: Working together, achieving more - Joint commitment to take action in response to the UNCRC concluding observations: set out the UK’s long-term vision for promoting children’s rights and improving outcomes for young people. It has been produced in response to recommendations made by the UN in its Concluding Observations report.
DCSF has also published United Nations Convention on the Rights of the Child:  Priorities for action which highlights the progress the Government has made in its commitment to priority areas of the UNCRC and sets out future plans. It describes how policies for children and young people in England continue to be underpinned by the UNCRC and outlines the desire to make it a reality in children’s lives. (20 November 2009)

R (A) v Croydon LBC; R (M) v Lambeth LBC; Secretary of State for the Home Department and Children's Commissioner (Interveners) [2009] UKSC 8 (SC): M and A were foreign nationals who claimed to be under 18 years old. They claimed asylum in the UK and said that the London boroughs had a duty to provide them with support and services under the Children Act 1989 Pt III. However, each London borough assessed them as being over the age of 18. M and A submitted reports from paediatricians that they were under 18. A and M appealed against the Court of Appeal decision that it was for the local authority to determine a person's age in such circumstances, and that the Art.6 and Art.8 ECHR did not apply to that determination. The issues to be determined by the Supreme Court were: whether the duty imposed on local authorities by s.20(1) of the Children Act 1989 was owed only to a person who appeared to the local authority to be a child (so that the local authority's decision could only be challenged on Wednesbury principles), or whether it was owed to any person who was in fact a child (so that the court could determine the issue on the balance of probabilities); and whether s.20(1) gave rise to a civil right for the purpose of Art.6, and if so, whether the determination of age by social workers was sufficient to comply with Art.6.
The Supreme Court held, allowing the appeals, that s.17(10) of the 1989 Act drew a clear distinction between whether a person was a "child" and whether that child should be "taken to be" in need within the meaning of the Act. "Taken to be" imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts, but the word "child" was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. Those conclusions made it unnecessary to come to any firm view on the application of Art.6 to decisions under s.20(1) of the Act. Obiter: if the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of Art.6. It was reasonably clear from the present state of the case law that the duty of a local authority under s.20(1) to provide accommodation for any child in need within their area who appeared to them to require accommodation did not give rise to a civil right within the meaning of Art.6(1). (26 November 2009)

R (B) v Barnet LBC [2009] EWHC 2842 (Admin) (Admin Ct): the court has held that where a local authority's assessments and care plan in respect of a 15 year old girl, who had a learning difficulty and was vulnerable to sexual abuse, were largely descriptive with little proper analysis of needs and no apparent understanding of her mental health problems or what services she actually needed, the local authority had failed in its duty to safeguard and promote her wellbeing as required by s.11 of the Children Act 2004 and the associated guidance. (12 November 2009)
The judgment is available on Lawtel (password required).

Commission for Rural Communities: Insights from users and providers of children's centres in rural communities - summary report: provides an overview of the challenges and opportunities of delivering children’s centre services in rural areas and the experiences and perspectives of parents of young children. It also sets out the key areas in which change is needed to improve support for families through rural children’s centres. (25 November 2009)

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

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DCLG: UK Government signs up to historic European agreement on local democracy: announces that the Local Government Minister Rosie Winterton has signed the new protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority . The Protocol sets out that citizens across Europe should be engaged at every stage in local affairs from voting in their elected representatives to being consulted on local policy that matters to them. Key measures include: 

  • involving local people in consultations, local referendums and petitions;
  • ensuring complaints and suggestions about services are dealt with and responded to;
  • making special efforts to get people who face particular obstacles to participating in democratic procedures involved;
  • giving people access to official local authority documents; and
  • encouraging the use of new technology to help people participate, such as on-line/telephone voting registration.

 (17 November 2009)

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

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Disability Discrimination

Royal Bank of Scotland Group plc v Allen [2009] EWCA Civ 1213 (CA): RBS appealed against the High Court's decision that it had failed to make reasonable adjustments under s.21 of the Disability Discrimination Act 1995 (DDA) so as to enable A to access one of its branch offices. A, who suffered from Duchenne Muscular Dystrophy and was a wheelchair user, opened an account at an RBS branch in Sheffield that was situated in a 19th century listed building, with access to all of the entrances gained by flights of stone steps so that it was inaccessible to wheelchair users. RBS rejected suggested options for installing a platform lift to resolve the access problems. RBS contended that A could access its services via internet and telephone banking, or at other branches.
The court held, dismissing RBS's appeal, that the relevant service in this case was the provision of banking services at the branch. The means by which a service was delivered was often an integral part of the description of the service, and the provision of facilities by internet or telephone was the provision of different services from the provision of face to face facilities.The judge was entitled to find that the failure on RBS's part to take the necessary steps was unjustified and therefore A was discriminated against by RBS within s.20(2) DDA.  (20 November 2009)

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

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DCSF: The National Commissioning Framework - consultation document: from April 2010, responsibility for securing enough suitable education and training provision for all young people will pass from the Learning and Skills Council to local authorities. This consultation seeks views on a framework that will set out the core systems for planning, commissioning, procuring and funding the education and training of 16 to 19-year-olds, young people up to age 25 where a learning difficulty assessment is in place, and young offenders in youth custody. Comments are required by 5 February 2010. (16 November 2009)

DCSF: Guidance on managing staff employment in schools: guidance on the School Staffing (England) Regulations 2009, explaining what is required of governing bodies, local authorities and headteachers. It also gives some guidance on, or pointers to, other Acts and regulations relevant to the employment of staff in maintained schools. (19 November 2009)

DCSF: The role and responsibilities of the designated teacher for looked after children - Statutory guidance for school governing bodies: guidance on the requirement for the governing bodies of all maintained schools to appoint a designated teacher to promote the educational achievement of looked after children on the school roll, under the Children and Young Persons Act 2008, which came into force on 1 September 2009. (20 November 2009)
DCSF has also published guidance for schools on Improving the attainment of looked after children in primary schools and on Improving the attainment of looked after children in secondary schools.  

TDA: School improvement planning - an introduction: provides a summary of the school improvement planning framework and explains how schools and local authorities are using it to improve Every Child Matters outcomes, raise standards of achievement for all, and maximise and demonstrate impact. (23 November 2009)

DCSF: Securing our future - using our resources well: this document intends to promote the debate with the school system about how efficiencies in the use of resources can be achieved. It sets out a number of broad areas that offer the greatest scope for savings and provides a discussion between schools, school leaders and their colleagues about what steps can be taken to ensure the best use of school resources in the coming years. It proposes four main areas for greater efficiencies: Procurement and technology; Resource use and financial management; Partnerships and shared services; and Supporting schools - the role of local and national partners. For a detailed summary, see the press release. (26 November 2009)

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

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LGA: Delivering more for less: maximising value in the public sector: this report outlines a series of measures that could save money both centrally and locally while protecting frontline services. The report identifies a set of straightforward measures to remove unnecessary administration and red tape that could save £4.5bn a year before local services are affected, including:

  • cutting back the burden of government monitoring and regulation of local authorities;
  • stopping unnecessary central government policy activity and prescription;
  • reducing government ring-fencing and control of council spending; and
  • streamlining the number of and spending by quangos. 

(20 November 2009) 

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

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Executive Arrangements

Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) (Amendment) Regulations 2009 (SI 2009/2983 (W.260)): these regulations, which come into force in Wales on 2 December 2009, amend SI 2007/399 on whether functions are not to be the responsibility of an authority’s executive or are to be the responsibility of such an executive only to a limited extent or only in specified circumstances. They relate to specified functions under the Highways Act 1980, the Wildlife and Countryside Act 1981 and the Gambling Act 2005. 
The Local Authorities (Alternative Arrangements) (Wales) (Amendment) Regulations 2009 (SI 2009/2993 (W.262)) make equivalent amendments to SI 2007/307 for Welsh county councils and county borough councils that are operating alternative arrangements. (11 November 2009)

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

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DCLG: Changes to the capital finance system - consultation: seeks views on changes to the prudential borrowing system introduced by the Local Government Act 2003. Comments are required by 4 January 2010. The proposals

  • revise the DCLG Investments Guidance, in the light of the recent Select Committee inquiry; 
  • amend the Capital Finance Regulations, mainly to mitigate the impact of new accounting standards; and
  • revise the DCLG Minimum Revenue Provision Guidance, to reflect new accounting standards.

 There are also draft Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2010. (16 November 2009)

DCLG: Government confirms majority of business rate bills will fall: announces the publication of the final arrangements for calculating new business rates bills. The Government estimates that, following the revaluation, 60% of business properties will see falls in their rate bills next year. For the minority paying more, the Government is putting in place a £2bn relief scheme self funded by businesses that will limit and phase in increases - see its Response to consultees' comments on the proposed transitional arrangements for the non-domestic rating revaluation 2010. (17 November 2009)
See also the draft Non-Domestic Rating (Chargeable Amounts) (England) Regulations 2009.

DCLG: Local Government Finance Settlement 2010/11: the Govenrment has published details of the finance settlement for 2010/11, under which local authorities will receive £76.3bn in 2010-11 - an increase of 4% in their final year of the first ever three year settlement. The 2010-11 grants include:

  • a 2.6 per cent increase for total formula grant to £29bn;
  • area based grant of £5.1bn - this includes for example Supporting People, the Working Neighbourhoods Fund, and Rural Bus Subsidy; and
  • specific revenue grants of £42.2bn - this includes for example Dedicated Schools Grant.

The Government has stated that no council will receive less formula grant than last year; however, it expects to see the average council tax increase fall to a 16 year low next year while councils protect and improve front line services. (26 November 2009)

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

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Health and Social Care

Health and Social Care (Independent Living) Bill: this Private Members' Bill has been introduced into Parliament by Lord Ashley of Stoke and received its 1st Reading in the Lords. Clause 1 states that "The purpose of this Act is to ensure that disabled persons enjoy the same choice, freedom, dignity, control and substantive opportunities as persons who are not disabled at home, at work, and as members of the community, and consequently to ensure that families and carers of disabled persons enjoy greater health, wellbeing, equality and opportunities to participate in social and economic life". It sets out 13 general principles that apply for the purposes of the Act. The Bill imposes various duties on local authorities and NHS bodies, including a duty to promote independent living for disabled persons; it also confers certain rights upon disabled persons for independent living. (23 November 2009)

Patient Transport Bill: this Private Members' Bill has been introduced into Parliament by Baroness Greengross and received its 1st Reading in the Lords. It places a duty on PCTs, hospital trusts and local transport authorities to co-operate with each other in order to co-ordinate the provision of patient transport services provided by PCTs and hospital trusts with the provision of other passenger transport services within the areas over which the trusts have responsibility. (23 November 2009) 

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

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Queen's Speech: the Government's legislative programme for the forthcoming year was been outlined in the Queen's Speech on the State Opening of Parliament. Proposed Bills of particular interest to local authorities include:

  • Bribery Bill: provides a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home or abroad. The Bill will make it illegal to bribe a foreign official to obtain or retain business. Will make it an offence if businesses fail to prevent a bribe being paid by their employees or by other firms on their behalf. The Bill had its 1st Reading in the Lords on 20 November;
  • Children, Schools and Families Bill: sets out what parents and pupils can expect from the schools system, with specific entitlements for parents and pupils and a means of redress if those expectations are not met. It also contains greater responsibilities: parent guarantees will include strengthened Home School Agreements setting out expectations on parents and making clear their responsibilities for their child’s behaviour; the Bill will give schools stronger powers to enforce these agreements when parents do not. The Bill had its 1st Reading in the Commons on 19 November;
  • Crime and Security Bill: the Bill will protect communities by making parents take responsibility for their child’s anti-social behaviour, and introduces mandatory assessment of parenting needs when 10 to 15-year-olds are considered for an ASBO. It also introduces compulsory licensing for all wheel-clamping businesses. The Bill had its 1st Reading in the Commons on 19 November;
  • Flood and Water Management Bill: addresses many of the recommendations from Sir Michael Pitt’s review of the summer 2007 floods, including putting local authorities in charge of dealing with local flood risk and the Environment Agency in charge of overseeing flooding and coastal erosion nationally. The Bill had its 1st Reading in the Commons on 19 November 2009;
  • Personal Care at Home Bill: guarantees free personal care for people with the "highest needs", such as those with serious dementia or Parkinson's disease. It protects the savings of people who currently get free care, saving them from having to pay future charges. The Bill will help people needing to enter care homes for the first time to "regain their independence". It also offers adaptations to the neediest people's homes to increase their independence. The Bill had its 1st Reading in the Commons on 25 November 2009.

The Speech also included Bills on: the digital economy; energy; financial services; fiscal responsibility; child poverty; equality (carried over from the last session); constitutional reform (carried over); international devleopment spending; and draft legislation on reform of the House of Lords.
The LGA has produced a briefing paper commenting on the Parliamentary legislative programme. (19 November 2009)

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

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Library Services

DCMS: Responses to the consultation on the extension of Public Lending Right to rights holders of books in non-print formats: in July 2009 the Government consulted on proposals to extend eligibility for Public Lending Right (PLR) to non-print books, in particular audiobooks and e-books,  and to extend PLR to the lending rights holders in respect of these non-print works where they are not currently eligible under the PLR Scheme. This report analyses the responses and gives the Government’s response to the comments submitted. Following the consultation, the Government proposes that PLR will be extended to digital files but remote downloads (files downloaded outside library premises) will not be eligible for PLR payment. Libraries will be able to continue to make their own arrangements with suppliers for the licensing of rights if they want to provide access to digital files to the user outside of library premises. The changes will be brought in by the Digital Economy Bill which has received its 1st Reading in the Lords. (19 November 2009)

DCMS: Archives for the 21st century: this policy sets out the Government's strategic vision for the sustainable development of a vigorous, publicly funded archive sector across England and Wales. It replaces the 1999 government policy on archives and builds on both the positive achievements around public access to information and technological developments. The policy re-asserts the vital importance of archives as the gateway to the nation’s common legacy, whilst reflecting the technological transition society is going through. It recognises the role that archives have to play in linking people with their communities, their heritage and their responsibility to future generations. It also highlights the fragility of digital information as a pressing issue that could threaten the survival of the public record as a whole. The five sections outline the challenges facing the archives sector and the actions to address them.  (23 November 2009)

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

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DCLG: Shortlist for new public sector awards scheme announced today: announces the 22 shortlisted applicants for the new Local Innovation Awards, which replace the Beacon Scheme. The Awards celebrate the achievements of local authorities working together with police forces, fire services, schools, PCTs and other community partners. The winning areas, who will be announced in March 2010, will share a £3m funding pot to set up pioneering schemes for spreading their winning ideas and best practice. (24 November 2009)

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

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Public Contracts (Amendment) Regulations 2009 (SI 2009/2992): these regulations, which come into force on 20 December 2009, amend SI 2006/5 so as to implement the new Remedies Directive 2007/66, which strengthens the legal review procedures that are available for breaches of the public procurement regime and increases the range of remedies available in all Member States. The main changes are:

  • a new penalty of ineffectiveness, which will enable the courts to strike down contracts that have been awarded in serious breach of the procurement rules;
  • two other new penalties, namely civil financial penalties and contract shortening, which a court can use as an alternative to ineffectiveness if it considers that there are important public interest reasons why the contract should continue;
  • automatic suspension of a contract award procedure whenever legal proceedings are started in respect of a contract award decision; and
  • procedural changes to the standstill period so that aggrieved bidders can seek remedies before the contract is awarded.

(12 November 2009)
Bevan Brittan has produced a Procurement Alert that sets out our top 10 questions and answers on the impact of these new procurement remedies rules.

OFT: Bid rigging in the construction industry in England: the OFT has published its full decision following its investigation into anti-competitive collusion by 103 construction firms. This publication follows the announcement of the decision in September 2009 and its imposition of financial penalties on the firms as a result of findings of illegal bid-rigging activities in 199 tenders from 2000 to 2006, mostly in the form of 'cover pricing'. The full decision outlines the detailed evidence and findings on each infringement, representations made by the construction companies and details of the OFT's calculation of the fines imposed. Certain confidential information is not included in the published version of the decision. There are also tables of the infringements and of the parties and fines imposed. (23 November 2009)

Local Government Ombudsman: Report on an investigation into complaint no 08 012 171 against Liverpool City Council: reports on the LGO's investigation into the Council's award of a contract worth £750,000 over three years for supplying and fitting playground equipment. The company that it contracted with went into administration so the Council retendered a contract worth £500,000. L, an unsuccessful tenderer, complained that the contract was awarded to a company that could not possibly have met the requirements set out in the tender documents. The LGO investigation established that the council officers who awarded the second contract were not experienced or properly trained, and did not properly check the information in the tenders, and listed six key failures in the Council’s handling of the process. The LGO found that L was caused injustice by his tender not being fairly assessed against objective criteria after he had gone to some considerable time and trouble to prepare it. In addition, the maladministration in assessing the tenders exposed the Council to significant risks that were compounded by its failure to enter into a formal contract and get a performance bond. She made a number of recommendations which the Council agreed to, including: to pay L £700 and to pay £500 to the other companies that tendered unsuccessfully. (17 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

Provision of Services Regulations 2009 (SI 2009/2999): these regulations, which come into force on 28 December 2009, implement the EU Services Directive 2006/123 that aims to facilitate service provision within the EU whilst maintaining a high quality of services by ensuring a level playing field and a uniform regime. The regulations place obligations on all service providers regarding transparency and consumer information. Local authorities and other competent authorities must ensure that their requirements and administrative practices and procedures do not contravene the Regulations. They must also ensure that the licences and authorisations that they administer can be obtained electronically via the online Point of Single Contact facility which will be accessible through businesslink.gov.uk. Competent authorities will have to link to the site, and collect and process applications from service providers online. (11 November 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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