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    Efficiency
   Adult Social Services    Finance
   Anti Social Behaviour    Housing
   Children's Services    Libraries
   Civil Protection    Negligence
   Comprehensive Area Assessment    Procurement
   Democratic Services    Regulatory Services
   Disability Discrimination    Structural Change
   Education    Transport
   Bevan Brittan's Local Government Training Programme


Access to Information

INSPIRE Regulations 2009 (SI 2009/3157): these regulations, which come into force on 31 December 2009, implement the INSPIRE Directive 2007/2, which concerns the creation and operation of national and EU infrastructures relating to spatial information for the purposes of EU environmental policies and other policies or activities which may have an impact on the environment. The Directive aims to make existing relevant location-related metadata conform to prescribed standards and improve access to spatial data by the public and other public authorities. The regulations impose new duties on public authorities (including local authorities) regarding their spatial data sets and services. Certain provisions of the Directive are dependent on the EC adopting further Implementing Rules, and where those rules have not yet been adopted, those provisions are not implemented in these regulations. As the EC adopts further Implementing Rules under the Directive additional improvements will be made to the information infrastructure. (7 December 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

Care Quality Commission: Statement on the quality of adult social care: this is the CQC's first major statement on the quality of adult social care in England. It states that adult social care has improved but a renewed effort is needed to eliminate poor quality services. The CQC has published four documents supporting the statement:

Office for Disability Issues: Consultation on the Right to Control - Government response: sets out the Government's response to the consultation that ran from 11 June to 30 September 2009 on the new right under the Welfare Reform Act 2009 to give disabled people more control over the funding they receive. It announces that the Government is putting in place plans to give disabled adults more choice and control over the state funding or services they receive. There will be no obligation on disabled people to buy their own support services or equipment through Right to Control - individuals can choose to continue receiving the services arranged on their behalf if they prefer, or perhaps have a combination of the two options. From late 2010, the Right to Control, including adult community care and integrated community equipment services, will be tested in around eight "trailblazer" local authorities in England. Authorities who wish to become a trailblazer must complete and submit the proposal form by 15 January 2010.

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: Exploration of local variations in the use of anti-social behaviour tools and powers: this study explores local variations in the use of tools and powers, provides information about the local processes which underpin the use of these powers and begins to build a picture of how interventions are being used in local areas. The key aim of the research was to examine reasons for local variation in the use of ASB interventions, focusing particularly on Anti-Social Behaviour Orders (ASBOs) and Acceptable Behaviour Contracts. (4 December 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

IDeA: Safeguarding children and young people - a new scrutiny guide: this guide supports overview and scrutiny committees in fulfilling their critical role in relation to safeguarding children. "Safeguarding" here is used to mean both child protection services and other activities designed to make children safer at home, at school, in their communities or using public services. The guide includes: suggestions for approaches to scrutiny; key references and advice for further reading; and a series of questions which committee members may want to consider when testing whether local arrangements are robust. (1 December 2009)

DCSF: Exemption of childcare arrangements between friends that are not for monetary payment from registration under the Childcare Act 2006: seeks views on a proposal to exempt from Ofsted registration childcare between friends that is not for monetary payment. The proposed changes to the Childcare Order 2008 aim to strike a balance between informal arrangements and professional childminders, to give families the freedom to choose from the range of childcare options available to them. Comments are required by 31 January 2010. (3 December 2009)

DCSF: Sure Start children's centres - guidance: seeks views on the draft Sure Start Children's Centres guidance on the provisions of the Apprenticeships, Children, Skills and Learning Act 2009 in relation to children's centres. It builds on existing DCSF guidance on children's centres. The Act also establishes the inspection of children's centres by Ofsted, and views are also sought on a policy statement explaining the inspection proposals. Comments are required by 1 February 2010. (7 December 2009)

DCSF: Information and signposting project - sharing the learning: this document aims to share the learning from the first year of the DCSF Information and Signposting Project, which has been working with 20 local authorities to learn about the challenges associated with meeting the duty under s.507B of the Education Act 1996 to secure access for all young people aged 13-19 (and those with learning difficulties up to the age of 24) to sufficient positive leisure-time activities. It includes practical step-by-step guidance on fresh approaches to gathering, managing and sharing positive activity information.  (9 December 2009)

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

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Civil Protection

Cabinet Office: Renewing Civil Contingencies Act arrangements for London - consultation exercise: seeks views on proposals for changes to administrative arrangements in the Civil Contingencies Act 2004, with a view to ensuring that civil protection arrangements in London are robust, joined-up and cost effective, and that appropriate structures are in place to support effective partnership working at all levels in the capital and with neighbouring areas. Comments are required by 26 February 2010. (30 November 2009)

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

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Comprehensive Area Assessment

Audit Commission: CAA results are all in Oneplace: the Audit Commission has launched Oneplace, the reporting website for Comprehensive Area Assessment. The site includes independent information about how councils, police, health services and others are tackling the major issues in every area in England. The website provides an overview of each unitary and county council, and looks at how well each area is performing, identifying priorities and flagging up both exceptional performance and innovation and also significant concerns. It also gives assessments for the district councils, PCTs and fire & rescue authority, and links to the ratings from Ofsted on children's services and the Care Quality Commission's assessments of adult social care. (9 December 2009)

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

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Democratic Services

Boundary Committee for England: Establishment of Local Government boundary Commission for England: this letter to all local authority chief executives explains the implications of the Local Democracy, Economic Development and Construction Act 2009, which provides for the establishment of the Local Government Boundary Commission for England (LGBCE), and for the transfer to it of all the boundary-related functions of the Electoral Commission and the Boundary Committee for England. The letter discusses consequent changes to how electoral reviews are implemented. (30 November 2009)

DCLG: Listening to communities - consultation on draft statutory guidance on the duty to respond to petitions: seeks view on draft guidance under the Local Democracy, Economic Development and Construction Act 2009, setting out the key principles and requirements of the petitions duty, which requires local authorities to create a scheme for responding to the petitions they receive, and to comply with that scheme. The new duty means authorities must act to address concerns about under-performing services across the board. Petitions with a significant level of support will also trigger a debate of the full council or require a senior officer to have to attend the authority's overview and scrutiny committee to answer questions. The draft guidance sets out how authorities should respond to all petitions, especially on four key areas: under-performing schools; alcohol related crime and disorder; under-performing hospitals; and anti-social behaviour. Comments are required by 24 February 2010. (2 December 2009)
Peter Keith-Lucas has drafted a model Report to Council with draft Response to Consultation in Word format that you can adapt to present to Council, advising all members of the proposed implementation of the new petitions duty. If you would like a copy, please email Claire Booth.

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

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Disability Discrimination

Equality and Human Rights Commission: Commission to investigate disability related harassment and role of public authorities: announces that the Commission is to conduct a formal Inquiry into disability related harassment in England, Scotland and Wales and how public authorities are protecting disabled people’s human rights to live free from violence and abuse. The Commission plans to use its powers under the Equality Act 2006 to investigate the true extent of disability-related harassment and take appropriate action based on the evidence uncovered. At the end of the Inquiry, public authorities found not to be doing enough to tackle the problem and to protect the human rights of disabled people could face legal action to force them to comply with their legal obligations. The Inquiry will report its findings within one year. (3 December 2009)

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

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DCSF: Over £1bn funding for extra schools places and new school buildings: announces additional funding for the Building Schools for the Future (BSF) programme, and also projects under the Primary Capital Programme. For details of the successful authorities, see the table of allocations. (30 November 2009)

DCSF: Amendment regulations for independent schools; consolidated regulations for non-maintained special schools; and revision of National Minimum Standards for boarding schools and residential special schools: seeks views on changed regulations and National Minimum Standards affecting the provision of education, care and information in independent schools, non-maintained special schools and in all schools providing boarding or residential accommodation. Comments are required by 11 March 2010. (3 December 2009)

DCSF: 14-19 - guidance on the January guarantee: gives further guidance on the Government's plans (announced on 18 November 2009) to build on the September guarantee by guaranteeing the offer of a place on an entry to employment programme to all 16 and 17-year-olds who are not in education, employment or training in January 2010. (3 December 2009)

DCSF: Your child, your schools, our future - building a 21st century schools system: timetable for action: this plan sets out how the Government intends to achieve its ambition to create a school system that is not merely good but excellent, through a new approach to improving the system. It follows on from the June 2009 White Paper, and outlines the Government’s vision for giving more powers and responsibility to parents and pupils, more freedoms to schools, and clearer and smarter accountability for all. The Timetable for Action reports on what has already been achieved and provides a clear timetable for delivery. (4 December 2009)

DCSF: £900 million to help school improvement – including £315 million for 1-to-1 tuition and £50 million as part of the World Class Primaries programme: announces financial support for local authorities and schools for school improvement, which include £315m available for one-to-one tuition for pupils falling behind in English and maths, as part of a package of measures to ensure every child can succeed. The attached table sets out the funding allocations.
The Secretary of State has written to every local authority setting out plans for primary school improvement measures, including helping schools learn from the best, and asking all local authorities to respond by the end of March 2010 with a plan outlining how they will help their schools to become world class primaries. He has written separately to the 12 local authorities with the highest proportion of schools which have been below the floor for some years, calling for an action plan by end of January 2010. (4 December 2009)

DCSF: Revised School Admissions Code: this revised Code implements the recommendations of Sir Jim Rose's Primary Curriculum Review. It will come into force in February 2010 and apply to admission arrangements from September 2011. Its effect is that, from that date, parents can choose for their children to start school from the September after their fourth birthday on a part time or full time basis. Local authorities will now have a legal duty to give parents this flexibility and choice over school starting dates. Parents who do not want their child to start school will be entitled to free full-time early learning and childcare, in maintained nursery schools and classes or in private, voluntary and independent sector provision. The Government will allocate up to £80m to fund these changes. (10 December 2009)

DCSF: Consultation on regulations and guidance on school governing bodies' power to refer pupils to off-site provision to receive education or training to improve their behaviour: section 154 of the Education and Skills Act 2008 gives school governing bodies the power to require a pupil to attend premises outside the school for the purpose of improving behaviour.  It also gives the SoS powers to make regulations to impose restrictions in relation to governing bodies’ exercise of this power. This seeks views on draft Education (Educational Provision for Improving Behaviour) (England) Regulations 2009 and the draft guidance. Comments are required by 4 March 2010. (10 December 2009)

DCSF: Statutory guidance for local authorities and schools on information passports, personal learning plans and the core entitlement for all pupils in Pupil Referral Units and other alternative provision: the White Paper, Back on Track, announced plans to introduce information passports, personalised learning plans and a core entitlement for all pupils in alternative provision.  The core entitlement includes the curriculum, the number of hours provision pupils should have per week and the maximum waiting times for placement in alternative provision and for the engagement of support services.  This consultation seeks views on the draft statutory guidance that sets out the Government's expectations in these key areas. Comments are required by 4 March 2010. (10 December 2009)

Ofsted: Gifted and talented pupils in schools: reports the findings of a survey of 26 schools to evaluate their capacity to respond effectively to changes in policy in terms of making provision for gifted and talented pupils and to identify good and less effective practice. (11 December 2009)

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

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HM Government: Putting the frontline first - smarter government: this document sets out how the government will improve public service outcomes while achieving the fiscal consolidation that is vital to helping the economy grow. The plan has three central actions:

  • driving up standards by strengthening the role of citizens and civic society; 
  • freeing up public services by recasting the relationship between the centre and the frontline; and 
  • streamlining the centre of government, saving money for sharper delivery. 

The proposals build on the Government’s existing plans to deliver efficiencies.  It calculates that by identifying new ways of working, a further £12bn of efficiency savings can be made over the next four years. This includes £3bn of new efficiency savings identified since the Budget, of which over 1.3bn will come from streamlining central government.
DCLG states that the package of measures will cut the red tape burden on local government by reducing revenue streams, ring-fencing, targets and inspections on front line services from 2010, building on the Total Place pilots. The paper also announces plans to open up data and public information to allow local people to challenge, compare or scrutinise data to improve public service standards.
The Communities Secretary has also confirmed that local government will be covered by the terms of a senior pay review announced by Government. The review's principles will be that senior pay across the public sector needs to promote fairness and respect the legitimate expectations of taxpayers. It will report ahead of Budget 2010 and include recommendations on pay and bonus caps. (7 December 2009)

LGA: Pre Budget Report 2009 - briefing: summarises the key proposals affecting local government in the Chancellor's 2009 Pre Budget Report, that sets out the Government's tax and spending plans, including those for public investment, in the context of its overall approach to social, economic and environmental objectives. The report includes a raft of proposals to transform public services and deliver efficiency savings. (9 December 2009)
For the legal challenges and opportunities for smarter government and operational efficiency arising out of the Pre-Budget Report, see Bevan Brittan's Alert.

DCLG: Inclusion of efficiency information with council tax demand notices - Summary of responses to consultation: summarises the responses to the July 2009 consultation on the proposal to consolidate the existing council tax demand notice regulations and make the requirement to include efficiency information ongoing. In light of the responses, te Government has decided to proceed with its proposals. It will introduce regulations that will make the requirement to include efficiency information on and with council tax bills applicable for 2010-11 and subsequent years. (8 December 2009)

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

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Local Government Pension Scheme (Management and Investment of Funds) Regulations 2009 (SI 2009/3093): these regulations, which come into force on 1 January 2010, consolidate SI 1998/1831 with the numerous instruments which have amended them since that SI was made. They also update those 1998 Regulations and make a small number of more substantive changes. The Regulations set out the arrangements which apply to the management and investment of funds arising in relation to a pension fund maintained under the Local Government Pension Scheme (Administration) Regulations 2008 (SI 2008/239). (1 December 2009)

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

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DCLG: John Healey calls time on tenancy cheats: launches the first-ever national crackdown on tenancy cheats to recover up to 10,000 council and housing association homes that have been fraudulently sublet. The 147 councils that have signed up to the initiative will share £4m funding - see the regional funding allocations table. The Housing Minister has given councils and housing associations around 8,000 thousand leads to potential tenancy cheats in their communities, found through data sweeps by the Audit Commission, together with practical advice on how best to tackle housing fraud, and a marketing toolkit for local authorities and social housing landlords. (30 November 2009)
DCLG have also published Tackling unlawful subletting and occupancy: Good practice guidance for social landlords.

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

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DCMS: A local inquiry into the public library service provided by Wirral Metropolitan Borough Council: report of the independent inspector Sue Charteris into whether Wirral MBC's plans for their library service were consistent with their statutory duty under s.10(1) of the Public Libaries & Museums Act 1964 to provide a "comprehensive and efficient" service. The inspector finds the council’s decision to restructure its library service to be in breach of its statutory duties, primarily because the council failed to make an assessment of local needs (or alternatively to evidence knowledge of verifiable local needs) in respect of its library services. 
The Culture Minister Margaret Hodge has issued a statement that "after the report on the Inquiry was received by the Secretary of State, Wirral MBC revoked their plans to restructure their service.  In these circumstances it is no longer necessary for the Secretary of State to take a view on proposals which have since been dropped. There is therefore no finding that Wirral MBC are in breach of their statutory duty." (30 November 2009)

DCMS: Empower, inform, enrich - The modernisation review of public libraries: A consultation: seeks views on the future of public libraries. The responses will inform the Government's policy statement, to be published in Spring 2010, which will set out its vision for the future of public libraries. The consultation paper includes 30 essays offering different views of what the important issues are, and poses a series of questions on new structures, new services and new ways of working. Comments are required by 26 January 2010. (1 December 2009)

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

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Glaister v Appleby in Westmorland Town Council [2009] EWCA Civ 1325 (CA): G claimed damages from the Town Council for injuries sustained during the annual Appleby horse fair. G was seriously injured when he tried to control an untethered horse. He initially alleged that the accident was caused by the Town Council's negligence in allowing horses to be tethered in close vicinity to other horses racing along the highway and failing to ensure that the tethered horses were properly supervised, but that part of the claim was abandoned; G then claimed that the Town Council negligently failed to take proper care to see that public liability insurance was arranged which would have covered the circumstances of the accident. G contended that he had suffered economic loss as a result of the absence of the insurance policy which the Town Council could have taken steps to ensure was in place. The recorder found that there was no one body which had exclusive control over the fair, but noted the new fair committee, comprising of public bodies including the Town Council, sought to exert some control over it. The Recorder held that it was fair, just and reasonable to impose a duty of care on the Town Council to see that the insurance was put in place because, among other things, the Town Council was the body on whose land the primary site of the fair lay, it took the leading role in the new fair committee and it was aware of the risks to safety.
The Court of Appeal held, allowing the Town Council's appeal, that the Town Council owed G no duty of care to ensure the placement of public liability insurance and even if such duty existed, but no wider duty of care for G's safety, any breach of the duty did not cause loss falling within the scope of the duty. Further, to hold the Town Council responsible for the consequences of G's accident would amount to making the authority responsible for the negligent act or omission of a third person for whom it had no direct legal responsibility. Even if appropriate insurance had been in place, there would still have been a negligent failure by the bodies concerned to see that proper segregation of visitors and horses was taking place, but the Recorder did not specify any particular body which would have been legally liable to G if it had been sued; and he neither found nor could have found that any such body would have been unable to satisfy any judgment obtained by G. Accordingly, the Recorder's conclusion that G suffered any loss from the absence of an appropriate public liability policy was unsustainable. (9 December 2009)

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

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OGC: Procurement Policy Note - Procurement thresholds from 1 January 2010 (Information note 13/09): gives advance notice of the revised thresholds that will apply from 1 January 2010. The Commission has not yet formally published these; however it has indicated that the new threshold figures will not change and has asked that Member States notify authorities of the new figures. (1 December 2009)
Bevan Brittan has produced a Procurement Alert summarising the new thresholds.

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

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Regulatory Services

Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) (Electronic Applications etc) Regulations 2009 (SI 2009/3159): these regulations, which come into force on 28 December 2009, amend SI 2005/42 so as to comply with Directive 2006/123, which requires EU Member States put in place a system to allow service providers located in the EU to apply for, vary and pay for licences and permits online via a single point of contact. The effect of the amendments is to allow applicants to apply electronically via a single point of contact for all licensable activities and most applications and notifications under the Licensing Act 2003. (3 December 2009)
See also the Amended guidance issued under section 182 of the Licensing Act 2003 on the new process for making online applications and notifications. (10 December 2009)

DCMS: Consultation on a proposal to amend the Licensing Act 2003 to simplify the procedures for licensing statements, interim authority notices and temporary event notices: seeks views on three simplification proposals regarding the 2003 Act:

  • revision of licensing statements (Proposal A);
  • interim authority notices (IAN) or applications for reinstatement on transfer (RT) following the death, incapacity or insolvency of the licence holder (Proposal B); and
  • notification of temporary event notices (Proposal C).

The consultation also seeks views on the draft Order, impact assessment and draft amendments to the statutory guidance. Comments are required by 9 February 2009. (9 December 2009)

LBRO: Data collections from local authority regulatory services - data mapping and costing the administrative burden: CIPFA was commissioned by LBRO to review data collections in regulatory services, in order to identify the barriers to continuous improvement . This report examines the administrative burden placed on local authority environmental health services, licensing and trading standards. It finds that councils have to return 139 forms asking for more than 15,000 pieces of mostly activity-related information, to a total of 22 central bodies. The heaviest burden falls on environmental health services, who handle 63% of these requests, while trading standards services handle the remaining 37%. The findings will inform LBRO's work with its partners on developing solutions that result in greater efficiencies and reduce the collective burden on local authorities. (7 December 2009)

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

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Structural Change

Electoral Commission v Forest Heath DC, St Edmundsbury DC and Suffolk Coastal DC; Secretary of State for Communities and Local Government (Interested Party) [2009] EWCA Civ 1296 (CA): the Boundary Committee appealed against the Administrative Court's decision quashing its further draft proposals to reorganise the structure of local government in Suffolk into a unitary system.  Although the Suffolk authorities did not contest the principle of a change to a unitary system, they claimed that,  because their proposal was omitted from the Boundary Committee's Draft Proposal for Suffolk, they had been denied the opportunity for proper consultation on that approach. The Administrative Court held that  the Boundary Committee should have discussed with the authorities any reservations it had about whether the concepts advanced met the SoS’s criteria before publishing the draft proposals in July 2008 and also in March this year. The Committee submitted that the judge had erred in holding that the SoS's guidance and its use of the word "dialogue" obliged the Committee to debate with their proponents perceived difficulties with schemes which were proposed during the pre-consultation stage when the Committee was formulating its own draft proposals.
The Court of Appeal held, allowing the Committee's appeal, that  the judge had given the word "dialogue" a weight and significance which in context it could not bear. The guidance required the Committee to have a dialogue with local authorities with a view to formulating its proposals before publishing them for public consultation, but did not require the Committee to consult the local authorities at the pre-publication formulation stage. 
(2 December 2009)

Boundary Committee: Advice on unitary local government in Devon, Norfolk and Suffolk: the Boundary Committee has issued its advice on unitary structures in Devon, Norfolk & Suffolk. It recommends for:

  • Devon: a single unitary council for the current Devon county area; 
  • Norfolk: a single unitary council for the whole of Norfolk; and 
  • Suffolk: either a unitary county of Suffolk (the Committee’s preferred alternative proposal for Suffolk); or a two-unitary pattern comprising an Ipswich & Felixstowe authority and a Rural Suffolk authority.

The Secretary of State will now consider whether to implement the original proposal (i.e. Exeter City Council/Norwich City Council/Ipswich BC), to implement the Committee’s alternative proposal (as above), or take no action.  Affected authorities and other interested parties have until 19 January 2010 to make their representations. (8 December 2009)

The Boundary Committee has also published its final recommendations for new local government electoral arrangements in Cornwall. It recommends a council of 123 members. An Order will now be laid before Parliament to implement this recommendation. If accepted, the new electoral arrangements will come into force at the next elections for Cornwall Council, in 2013. (8 December 2009)

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

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DfT: Local Transport Act 2008 - Quality Contracts Schemes: statutory guidance: from 11 January 2010, local authorities will have greater freedom to put in place Quality Contracts Schemes (QCS) that will allow them to decide which bus services are required locally before entering into contracts with operators to run those services. This document gives guidance to English local transport authorities, the Senior Traffic Commissioner and Quality Contracts Schemes Boards about the exercise of their functions under Part 2 of the Transport Act 2000 relating to QCS. (10 December 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 2010:

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

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