Authority Update

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 thethree weeks up to31 December 2009. Items are set out by subject, with a link to where the full document can be found on the internet.

31/12/2009

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 three weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update:

   Access to Information    Employment
   Adult Social Services    Finance
   Children's Services    Licensing
   Civil Contingencies    Maladministration
   Democracy    Officers
   Discrimination    Pensions
   Economic Development    Performance
   Education    Regulatory Services
   Efficiency    Vetting and Barring
   Bevan Brittan's Local Government Training Programme

 

Access to Information

DCLG: Policy options for geographic information from Ordnance Survey: seeks views on proposals to open up Ordnance Survey's data on electoral and local authority boundaries, postcode areas and mid-scale mapping information, to support digital innovation and democratic accountability. Ordnance Survey will still maintain a charging mechanism to cover the cost of the highest-specification products and services. The primary purpose of the consultation is to understand better the impact these proposals will have on the wider market for geographic information and how best to manage or mitigate any adverse consequences, whilst realising the maximum social welfare gain possible. Government departments and agencies will contribute towards the costs of these proposals to ensure that the changes are fiscally neutral and Ordnance Survey will have a sustainable funding mechanism to ensure the on-going quality of its data. Comments are required by 17 March 2010. (23 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

Collins (by his litigation friend Eskell) v Plymouth City Council [2009] EWHC 3279 (Admin) (Admin Ct): C, who was disabled after suffering severe injuries in a road traffic accident, applied for judicial review of the local authority's decision to charge him for receiving non-residential care services. He claimed that the authority had acted unlawfully in making a discretionary decision to take into account his income from his personal injuries award. The authority's letter to C letter referred to a Department of Health guide for charging for residential accommodation that stated that, when assessing the basis for charging, payments from a trust whose funds were derived from a personal injury award were to be disregarded in full if the income was to be used to purchase care not covered by the local authority; but where the payments were for local authority care, a maximum of £20 was to be disregarded, and thereafter the payments were to be taken into consideration in full. The local authority also had its own policy on charging for adult social care, which stated that the charge to clients would be calculated from the amount of income they received and capital held. C argued that the authority had fettered its discretion by blindly applying the DH guidance as if that guidance governed the case, which it did not.
The court held, refusing the application, that the DH guidance did not concern charges for domiciliary and day care, and was not directly in point. The authority's policy was wide enough to include income from personal injury damages awards, and it made no provision for any disregards in relation to such income. However, the local authority had correctly exercised its discretion by having regard to, but not directly applying, the residential accommodation guidance. It was entirely rational and appropriate that in deciding its approach in situations to which the guidance did not apply, the authority nevertheless had some regard to that guidance and ensured that its own decisions were no less generous. (11 December 2009)

R (Boyejo) v Barnet LBC; R (Smith) v Portsmouth City Council [2009] EWHC 3261 (Admin) (Admin Ct): B and others applied for judicial review of the local authorities' decisions to withdraw resident wardens or staff from sheltered housing schemes. B submitted that: the local authorities had failed to carry out their duty under s.49A(1) of the Disability Discrimination Act 1995, and in particular to have due regard to the need to take account of disabled persons' disabilities, even when that involved treating disabled people more favourably than other persons; the local authorities had failed to consult or involve residents with disabilities in the way that was set out in their respective disability equality schemes; and the conclusions of the respective equality impact assessments were Wednesbury unreasonable.
The court held, granting the application, that in each case the sheltered housing residents concerned, including those with disabilities, were questioned and consulted, but that was part of an approach to residents as a whole. Although there were references to disabilities in the documentation, it was not possible to discern that due regard was had, for example, to the need to take account of disabled persons' disabilities even where that involved treating disabled people more favourably than other persons. The respective disability equality schemes raised a legitimate expectation that disabled persons would be consulted in decisions affecting them, and each of the challenged decisions fell into that category. Both local authorities failed to adopt an approach to mainstream disability equality in their decisions, and so there was a breach of the equality schemes. Portsmouth's conclusion that the proposed changes did not and could not have an adverse impact on members of equality groups did not sit easily with the findings that the change in service would be radical, and that it would likely have an impact on the peace of mind of the residents; the conclusion was therefore Wednesbury unreasonable. (15 December 2009)

Personal Care at Home Bill: this Bill has been introduced in the House of Commons and has received its 2nd Reading. It enables the Secretary of State to make regulations requiring personal care to be provided free to persons in their own homes for an indefinite period. Section 15 of the Community Care (Delayed Discharges etc) Act 2003 currently allows local authorities to provide certain community care services free of charge for up to six weeks. The Bill amends s.15 so as to remove this time limit in respect of personal care at home for those in the greatest need. The Government estimates that the Bill would help around 400,000 people with care needs and guarantee free personal care for the 280,000 people with the greatest need. The legislation is intended to be the first step towards establishing a new National Care Service. (14 December 2009)
The LGA has issued a briefing that highlights the key features of the Bill.

CQC: Strategic plan 2010-2015 – position statement and action plan for learning disability: this five year plan outlines how CQC will drive up standards on behalf of people with learning disabilities. This is in direct response to the inpatient review that followed up a 2007 national audit of specialist inpatient services for people with learning disabilities. (15 December 2009)

DH: Response to the consultation on the revision of the Fair Access to Care Services guidance to support councils to determine eligibility for social care services: summarises the responses to the public consultation on revised guidance on eligibility for social care that closed on 6 October 2009. The revised guidance will replace the 2003 Fair Access to Care Services guidance, which provides local authorities with a framework for determining individual eligibility for social care. It aims to support fair and transparent implementation of eligibility criteria, within the new policy context of personalisation and prevention set out in Putting People First. (16 December 2009)

Home Office: Mainstreaming the commissioning of local services to address violence against women and girls: seeks views on draft guidance to help local commissioners develop the best approach to commissioning services to prevent violence against women and girls, protect victims and potential victims and provide services to victims and perpetrators in local areas. The draft guidance draws on existing good practice, on guidance offered by other government departments and the latest thinking about the strategic role of local councils in leading commissioning for their localities. (22 December 2009)

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

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Children's Services

DCSF: The Children's Plan two years on - a progress report: this documents charts the progress that has been made within the first two years of the Children's Plan. It also shares the next steps planned. (14 December 2009)

DCSF: Planning to inform - the strategic importance of Families Information Services: section 12 of the Childcare Act 2006 places a statutory duty on all top tier local authorities in England to deliver information, advice and assistance to parents of children up to the age of 20 (the information duty). Local authorities deliver this through provision of a Families Information Service (FIS). This document sets out local and national priorities that FIS can support and provides examples of practical ways in which FIS can contribute to these. The document provides a diagram showing policies and priorities that the FIS contributes to and supports. It also shows partner agencies that the FIS needs to be working with in order to achieve this. (14 December 2009)

DCSF: National Safeguarding Delivery Unit - Interim progress report & work programme 2009-2010: the NSDU was established in July 2009 to help ensure that the DCSF maintains the necessary focus, energy and drive in implementing Lord Laming’s recommendations on safeguarding children. This document summarises the NSDU’s progress since its establishment, sets out its priorities over the next few months, and gives some early indications for areas of work beyond that. (18 December 2009)

DCSF: Working together to safeguard children: seeks views on revised draft guidance that addresses 17 of Lord Laming's recommendations in his progress report. The revised draft also updates the guidance to reflect changes to the policy and legislative landscape since Working Together was last published in 2006. Comments are required by 11 February 2010. (18 December 2009)

DCSF: Working together to safeguard children - Chapter 8: Serious Case Reviews: Working Together to Safeguard Children sets out how individuals and organisations should work together to safeguard and promote the welfare of children. Chapter 8 has been updated to reflect Lord Laming’s recommendations on Serious Case Reviews (SCRs) and the outcomes of the recent public consultation. This revised statutory guidance replaces the 2006 version of Chapter 8. The guidance is addressed to all practitioners and front-line managers who have particular responsibilities for safeguarding and promoting the welfare of children. Local safeguarding children boards, agencies and professionals are required to implement the statutory guidance on SRCs with immediate effect. (18 December 2009) 

DCSF: Responding to Lord Laming's recommendation for further guidance on effective practice for Local Safeguarding Children Boards - A summary outline for consultation and a call for evidence: seeks views on further guidance to Local Safeguarding Children Boards (LSCBs) on how to operate as effectively as possible. This summary outline builds on the progress already made in addressing Lord Laming’s recommendations. The NSDU is asking for comments on the proposed outline and issues that the practice guidance should cover, the style and format of the practice guidance and how to produce the final practice guidance. It also welcomes contributions of evidence of models or templates of effective local practice, exemplars of good practice and case studies which relate to any of the proposed issues identified here. Comments are required by 29 January 2010. (18 December 2009)

DCSF: Updated guidance to support local authority childcare sufficiency assessments and action planning: seeks views on revised statutory guidance to inform the 2010-11 childcare sufficiency assessment and action planning process. The guidance builds on existing guidance and is intended to assist local authorities in their assessment of sufficiency and action planning. Comments are required by 26 February 2010. (18 December 2009)

DCSF: Disabled children's access to childcare (DCATCH) pilot activity: the Childcare Act 2006 placed a new duty on local authorities to have particular regard to the provision of services suitable for disabled children when assessing the sufficiency and supply of childcare in their area. Local authorities’ strategic leaders, in facilitating the development of the childcare market, are also expected to have Disability Equality Schemes in place. This report presents the results of a pilot programme that tested ways of achieving better access to childcare for disabled children and young people.
The Govenrment has also announced £12.5m funding for local authorities to help disabled children access childcare. Local authorities will have flexibility to use the funds to meet local needs, choosing from a range of options developed by the ten pathfinders. These include creating ‘Parent Champions’ as well as providing specialist training for childminders and staff so that they have the skills they need to work with disabled children. It could also be used to produce better information for parents of disabled children so they are more aware of the options available to them. (30 December 2009)

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

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Civil Contingencies

Cabinet Office: Draft revision to Chapter 2 (Co-operation) of the statutory guidance, Emergency Preparedness: seeks views on draft revised guidance that aims to achieve better engagement and collaborative working between responders to support them in fulfilling their duties under the Civil Contingencies Act 2004. Comments are required by 19 February 2010. (14 December 2009)

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

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Democracy

Innovation Unit: The engagement ethic: this report by an independent think tank discusses the potential of co-operative and mutual governance for public services. It suggests that, rather than follow the so-called easyJet model of delivering services, public services should consider the John Lewis model under which people are encouraged to take more responsibility for their own health, learning and carbon footprint by being given greater rights to shape the work of local public services.  It argues that public services need to strengthen their ethic of engagement by giving citizens and staff greater voice in decision-making.  The paper suggests that public services have gone through their own equivalent of de-mutualisation, with community engagement too often seen as too costly or time-consuming.  It argues that while public services belong to the public, too often their role in shaping their work is very limited - cooperative and mutual structures can help to put the public back into public services. (15 December 2009)

DCLG: Putting power at people's fingertips: announces that the Government is developing a new Civic Health report that will take the pulse of modern England and allow people to see how voting patterns, social habits and feelings of belonging vary across the country. The report, which will be published in 2010, will collate in one place national, regional and local data offering an insight into gauging the health of modern democracy and the connections people have to their communities. People will be able to see at a glance how their area compares to others on issues such as levels of volunteering, feelings of empowerment and perceptions of community cohesion. The report will set these measures in the context of other factors, such as employment and deprivation to help people build an understanding of how those  engagement by statutory and non-statutory consultees: (21 December 2009)

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

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Discrimination

Ladele v Islington LBC; Liberty (Intervener) [2009] EWCA Civ 11357 (CA): L, a registrar employed by the local authority, appealed against the EAT's decision that the authority had not direct or indirectly discriminated against her nor harassed her contrary to the Employment Equality (Religion or Belief) Regulations 2003 by compelling her to register civil partnerships even though she objected to officiating at such registrations on the grounds of her religious beliefs.
The court held, dismissing her appeal, that it could not constitute direct discrimination to treat all employees in precisely the same way, and, even if an inference of discrimination could be made, the explanation given for the less favourable treatment had to be considered. There was no evidence on which a tribunal could have concluded that the authority's reasons for causing or permitting all, or at least some of, the matters raised in the various allegations were, or even included, L's religious belief.  L was employed in a public job and was required to perform a purely secular task pursuant to the policy which sought to avoid discrimination. Her view of marriage was not a core part of her religion, and the authority's requirement in no way prevented her from worshipping as she wished. The right to manifest religion or beliefs under Art.9 ECHR was a qualified right. L's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override the authority's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community. The prohibition of discrimination by the Equaity Act (Sexual Orientation) Regulations 2007 took precedence over any right which a person would otherwise have by virtue of his religious belief or faith to practise discrimination on the ground of sexual orientation. (15 December 2009)

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

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Economic Development

DCLG: Local economic assessments - consultation on draft statutory guidance: s.69 of the Local Democracy, Economic Development and Construction Act 2009 places a new duty on county and unitary councils to prepare an assessment of local economic conditions. The duty is due to come into force on 1 April 2010. This consultation seeks views on draft guidance that explains what the new duty is intended to achieve and how assessments should be taken forward. Comments are required by 15 March 2010. (22 December 2009)

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

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Education

DCSF: Guidance for commissioning and funding Education Business Partnership services in 2010-11: this guidance is intended to support local authorities in their responsibility for commissioning and funding education business partnership services in 2010-11 to meet the needs of learners in their areas. The guidance explains the transfer process and the roles and responsibilities of those involved. It also sets out the standard of Education Business Partnership services that the Government expects local authorities to commission with their share of the £25 million funding. It is relevant for Directors of Children’s Services, their delegated officers dealing with education business partnership services and current Education Business Partnership Organisations (EBPOs) and 14-19 Partnerships. (14 December 2009) 

DCSF: Raising the participation age - supporting local areas to deliver: this document sets out what local authorities need to do to by 2013 to deliver raising the age of participation in education or training to 17. It also outlines what will be done nationally to support them. (15 December 2009)

DCSF: Lamb Inquiry - Special educational needs and parental confidence: this final report updates the findings of the previous interim report on parental confidence in the SEN assessment system as a key issue in making provision for children with special educational needs. Brian Lamb concludes that there needs to be a major reform of the current system to ensure that a generation of children do not leave school ill-equipped to lead an independent life and make a contribution to society. There needs to be a radical recasting of the relationship between parents, schools and local authorities to ensure a clearer focus on the outcomes and life chances for children with SEN and disability. He makes a number of recommendations in four key areas:

  • children’s outcomes at the heart of the system;
  • a stronger voice for parents;
  • a system with a greater focus on children's needs; and
  • a more accountable system that delivers better services. 

The DCSF's response accepts the recommendations and confirms the Government's commitment to listen to parents and provide them with the advice, information and support they need. (16 December 2009)

DCSF: Schools Minister encourages local authorities and schools to accelerate school building projects: the Schools Minister has written to all local authorities and schools encouraging them to commission building projects as soon as possible, so as to make good use of the extra £939m schools capital funding in their budgets for the current financial year that has been brought forward from 2010-11 budgets. (22 December 2009)

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

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Efficiency

DCLG: New task force to drive value for money for councils: the Prime Minister recently promised £3bn of additional efficiency savings including a 20 per cent cut in the cost of the senior Civil Service. DCLG has now announced a new task force, chaired by Steve Bullock, Mayor of Lewisham, and Richard Leese, leader of Manchester City Council, that will look urgently at whether similar savings are achievable for local government. The task force will focus on sharing services and senior management teams. It will report in February so that recommendations can be adopted by councils in their next budgets and feed in to the wider public sector senior pay review report due ahead of Budget 2010. (30 December 2009)

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

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Employment

IDeA: Delivering through people - the local government workforce strategy 2010: seeks views on proposed changes to a national strategy that looks at the most important current and future workforce issues facing councils. It sets out the action required locally, regionally and nationally to tackle these challenges. In support of the national strategy, IDeA provides good practice ideas and examples to support authorities and their partners in addressing workforce challenges. Comments are required by 8 January 2010. (14 December 2009)

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

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Finance

LGA: LGA to challenge Icelandic investment rating: announces that the LGA is committed to challenge the decision of the Winding Up Board of Glitnir Bank to specify local authorities' claims as ‘general unsecured’ rather than ‘priority’ under the Icelandic Bankruptcy Act.  Without priority status, authorities would be likely to get in the region of 25-30 per cent of their deposits back rather than 100 per cent. The LGA is prepared to take legal action if necessary. (15 December 2009)

Audit Commission: Auditing the accounts 2008/09: the Audit Commission has published an open letter to Secretary of State on the quality and timeliness of financial reporting by local government. The letter names the authorities that did not have audited accounts for 2008/09 by 30 November or whose accounts have been qualified. It urges the Secretary of State to do more to emphasise the importance of this fundamental aspect of local authorities’ performance and to follow up the letter with the authorities concerned. The correspondence is supported by three national reports, one each for local authorities, fire and rescue authorities, and police authorities, that summarise auditors' work on the 2008/09 accounts, the results of the 2008/09 use of resources assessments and the public interest reports and statutory recommendations issued by auditors in 2008/09. (17 December 2009)

DCLG: Making local public expenditure data public, and the development of Local Spending Reports: sets out the Government's broader aims for the future of Local Spending Reports in the context of the next generation of public services and its work to make public data public. The report describes how DCLG will take forward its aims to ensure that Local Spending Reports provide more open, transparent and useful information in a way that adds to the greater picture, and helps citizens to hold providers to account, whilst minimising the burden on reporting organisations. (31 December 2009)

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

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Licensing

DCMS: Consultation on a proposal to exempt small live music events from the requirements of the Licensing Act 2003: seeks views on a proposal to exempt live music events for audiences of not more than 100 people from the requirements of the 2003 Act. The exemption would ensure that all licensed premises such as pubs and clubs would be able to put on small scale live music, regardless of whether or not their existing licence included a provision for staging entertainment events.  Unlicensed premises such as cafes, restaurants, village halls and record shops would also be able to host events without the need for a licence. The exemption would only apply to performances that are indoors, and take place between 8am and 11pm.  Residents and responsible authorities such as the police would have the power to call for an exemption to be revoked at a specific venue if there was cause for concern. Comments are required by 26 March 2010. (31 December 2009)

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

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Maladministration

DCSF: Consultation on new regulations for the implementation of the service to handle parents' and young people’s complaints about school matters: seeks views on draft regulations under the Apprenticeships, Skills, Children and Learning Act 2009 that extend the remit of the Local Government Ombudsman to enable investigation of complaints from parents and young people in relation to individual school matters. The consultation period is short as the regulations must be in place if DCSF is to begin testing the new service in April 2010: comments are required by 5 February 2010. (15 December 2009)

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

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Officers

Accounts and Audit (Amendment No. 2) (England) Regulations 2009 (SI 2009/3322): these regulations, which come into force on 31 March 2010, amend SI 2003/533 in relation to the disclosure of remuneration for senior officers and senior police officers in the statement of accounts of certain bodies. They require disclosure of individual remuneration details for all officers earning over £150,000 by name, and for all other 'senior' employees for each financial year by post title, within the authority's annual statement of accounts under the following categories: salary, fees and allowances; bonuses; expenses allowance; compensation for loss of employment; pension contribution (employer's contribution); any other emoluments; and in the case of senior police officers, any other payments made to them. "Senior officers" are defined as those earning over £50,000 p.a. and who hold defined senior positions. (18 December 2009) 

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

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Pensions

DCLG: Admitted body status provisions in the LGPS when services are transferred from a local authority or other scheme employer: guidance on the regulatory position provided by the local government pension scheme. It covers how external providers, such as companies or third sector organisations, can be admitted to the scheme and sets out the pensions considerations that have to be taken into account when employees transfer from a local authority to an external provider. (16 December 2009)

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

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Performance

Improvement Network: Performance management in public services: this briefing provides an analysis of two reports from the Economic Social Research Council on performance management in public services. (14 December 2009)

Audit Commission: Testing times: this survey presents detailed findings on how the recession has affected benefits services. It describes key issues and some of the strategies councils are using to lessen the impact of the downturn. 69 per cent of councils that responded to the survey said the recession had affected strategic and planning for benefit services in 2009/10.  (22 December 2009)

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

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Regulatory Services

LBRO: Mapping the local authority regulatory services landscape: second edition of the comprehensive map of the local regulatory landscape. The revised version reflects comments received and brings key facts and figures up to date, and has been consolidated it to make it more user-friendly. Each section is now available as a separate document. As well as providing an evidence base for LBRO's strategic objective to enhance the local regulatory system, the map is intended to benefit all those working in local authority regulatory services, national regulators and central government departments, by fostering a common understanding of the system in which they operate. (15 December 2009)

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

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Vetting and Barring

DCSF: Drawing the line - A report on the Government's Vetting and Barring Scheme. This report by Sir Roger Singleton looks at concerns about the Vetting and Barring Scheme and checks that the government has drawn the line in the right place in relation to the requirement to register with the Independent Safeguarding Authority. Sir Roger makes a series of recommendations on how best to change the rules governing the scheme to ensure it strikes the right balance between offering protection without being overly burdensome. He confirms that the scheme is right not to intervene in private arrangements made between parents and friends, but where organisations make decisions on which adults should work with their children, the requirement to register should apply if the contact is sufficient to allow a relationship of trust. He also make a series of recommendations on how to adjust the rules setting out when a worker will have to register to best ensure the scheme is appropriate, balanced and proportionate.
The Children's Secretary Ed Balls has accepted all of Sir Roger Singleton’s recommendations to make sure that the Government’s Vetting and Barring scheme draws the line in the right place and protects children without getting involved in private arrangements between parents and friends. He pledged has to make the necessary adjustments to the rules of the scheme to ensure it strikes the right balance between protecting children and vulnerable adults without being unnecessarily burdensome. It is estimated that once these adjustments have been put in place, the number of people who will be required to register will fall from 11m to 9m. (14 December 2009)

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

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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 include:

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

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