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:

   Adult Social Services    Equality
   Anti Social Behaviour    Overview and Scrutiny
   Charging    Regulatory Services
   Children's Services    Shared Services
   Civil Contingencies    Standards
   Community Engagement    Structural Changes
   Corporate Manslaughter    Vetting and Barring
   Education    Wales
   Bevan Brittan's Local Government Training Programme


Adult Social Services

Audit Commission: Under pressure - Tackling the financial challenge for councils of an ageing population: this report looks at the challenges faced by local authorities of an ageing population as public spending reduces. It says that most authorities do not know enough about the costs of their ageing population. They may also miss the savings that could flow from preventive services and better work with other organisations. It warns that authorities' costs will increase if they do not plan carefully as the number of older people increases each year. The report says the needs of older people must be a central part of authorities' plans for all local services, and they should involve the people themselves in developing services. It includes recommendations, challenges and questions for authorities, voluntary bodies, the NHS and others to help them focus on finance and strategy for an ageing population and acquire necessary information, together with case studies showing how some authorities have collaborated to improve housing, health promotion and wellbeing. (18 February 2010)

LGA: Personal Care at Home Bill - Local Government Association consultation response: this paper discusses the LGA's concerns over the Bill that is currently before Parliament. Whilst it supports the principles of the Bill, it has genuine concerns about the assumptions on which it is based, and its impact on local government.  In particular it is concerned by: the assumptions about local government efficiency savings; assumptions about levels of demand and overall cost; the eligibility process; the administrative burden the proposals will place on councils; and the timescale for implementation. (23 February 2010) 

Law Commission: Adult social care - consultation phase: seeks views on proposals to reform the law on adult social care, with a unified statute to replace the current legal framework. The proposals include:

  • establishing a core set of overarching principles to guide social care decisions;
  • introducing a single and explicit duty to assess individuals’ needs;
  • a duty on local authorities to provide community services for all those eligible;
  • the introduction of a single duty to assess the needs of any carer;
  • a statutory duty on local authorities to investigate when they suspect that vulnerable adults are being abused or neglected.

The proposals do not cover funding. The consultation closes on 1 July 2010. (24 February 2010)

DH: Helping hand for care and support housing: announces a £3.5m innovation fund to help local authorities improve the quality and range of housing options for older people. Every Adult Social Care authority will be awarded approximately £20,000 to develop or update its extra care housing strategy. Authorities will be expected to showcase their strategies, promote good practice and exchange ideas on innovative approaches to housing with care on a new online web resource. (24 February 2010) 

DH: Prioritising need in the context of Putting People First - a whole system approach to eligibility for social care: guidance on eligibility criteria for adult social care, England 2010: this guidance is issued under s.7(1) of the Local Authority Social Services Act 1970 and replaces the 2003 guidance on eligibility criteria for adult social care Fair Access to Care Services. It aims to assist adult social services authorities in determining eligibility for adult social care in a way that is fair, transparent and consistent, accounting for the needs of their local community as a whole as well as individuals’ need for support. The guidance promotes the application of eligibility criteria within the wider context of personalisation, including a strong emphasis on prevention, early intervention and support for carers. This new guidance applies from 1 April 2010. (25 February 2010)  

DWP: Right to control - Government announces winning councilsPart 2 of the Welfare Reform Act 2009 enables the Government to establish a right for disabled people to have choice and control over certain public funding they receive to go about their daily lives, and to set up pilot schemes to test the best ways of delivering this new right. The DWP has announced the eight local authority areas in England that are to be Right to Control Trailblazers, with £7m funding. (25 February 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

Barber v Croydon LBC [2010] EWCA Civ 51 (CA): B was a tenant of the local authority. He suffered from learning difficulties and a personality disorder. He appealed against an immediate possession order that had been sought on the basis of an incident in which he had threatened, spat at and kicked a caretaker. The local authority’s policy on anti social behaviour recognised the need for its ASB team to work in partnership with other internal and external statutory and voluntary agencies, including the social services department and the Integrated Mental Health Service (IMHS).  The policy also set out three categories of anti-social behaviour and the local authority concluded that B’s conduct fell within the most serious category (category 3) in respect of which legal action would almost always take place. 
The Court of Appeal held, allowing B's appeal, that the decision was one which no housing authority, faced with the facts of the case, could reasonably have taken.  Although the assault on the caretaker was serious and unacceptable, the local authority’s policy on vulnerable people was to explore alternative solutions which might lead to the prevention of anti-social behaviour in the future. (11 February 2010)
Bevan Brittan LLP has issued an Alert on this case: The tide of reasonableness continues its advance.

DCSF: Safe. Sensible. Social. Alcohol - test purchasing: innovative practice: the Policing and Crime Act 2009 contains new powers aimed at tackling under-age drinking, including a new offence of persistent possession and making it easier for police to confiscate alcohol. Local authorities, police, trading standards and other agencies all have a role to play in ensuring that the supply of alcohol to young people is controlled effectively. This booklet sets out case studies that highlight the innovative practices in local authorities to tackle issues around test purchasing. It is intended to encourage LAs to be similarly creative in their approach to tackling underage drinking. (15 February 2010)

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

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DCLG: Circular 01/2010 - The Building Act 1984,The Building (Local Authority Charges) Regulations 2010: New provision for local authority building control charges: draws attention to the Building (Local Authority Charges)  Regulations 2010 (SI 2010/404) which revoke and replace SI 1998/3129 as from 1 April 2010. The regulations authorise a local authority to fix and recover charges for the performance of their building control functions relating to building regulations according to a charging scheme governed by prescribed principles. This circular explains the purpose of the provisions in the 2010 Regulations and indicates how they differ from the previous 1998 Regulations. It also draws attention to the transitional provisions and other guidance issued on the regulations. (25 February 2010)

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

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Children's Services

DCSF: Consultation on notifications to be sent by Ofsted to local authorities about children's social care providers: seeks views on the information that Ofsted is required to notify to all local authorities when they take specific actions against providers of children's homes, residential family centres, fostering agencies, voluntary adoption agencies and adoption support agencies. Actions include such things as restricting new admissions to children's homes or residential family centres or cancelling a provider's registration. The consultation asks whether the detail to be provided to local authorities within notification to them is appropriate and whether the circumstances where notifications are made to local authorities are appropriate. The consultation closes on 10 May 2010. (15 February 2010)

DCSF: Children's Minister announces 56 pathfinder local authorities: Dawn Primarolo has announced the 56 local authorities that are invited to join the pathfinder Early Years Single Funding Formula programme (EYSFF), ahead of the full rollout in April 2011. The EYSFF will provide a more transparent basis for childcare funding and will mean that local authorities will be able to manage the funding of childcare providers in their area according to local priorities and need. (16 February 2010)

DCSF: Embedding the Play Strategy - Guidance for local authorities, Children’s Trust Boards and Local Strategic Partnerships on planning and sustaining provision for children and young people’s play and informal recreation: guidance on improving local play offers by embedding everyday opportunities for healthy, active play within top-level strategies for children, communities and spatial planning. It will assist directors of children’s services and their partners in children’s trusts to deliver play services locally through multi-agency cooperation. (19 February 2010)

Ofsted: Inspection of local authority private fostering arrangements: seeks views from those who have an interest in, or expertise relating to, private fostering arrangements in order to ensure that Ofsted's inspection framework takes proper account of the needs and circumstances of all interested parties, but above all the needs of the children and young people who are privately fostered. The consultation closes on 19 May 2010. (24 February 2010)

DCSF: Evaluation of the Parenting Early Intervention Programme - 1st interim report: this is the first national evaluation of a pilot programme to fund local authorities in England to implement evidence-based parenting programmes. (25 February 2010)

DCSF: Empowering Young People Pilots evaluation - final report: the Empowering Young People Pilots (EYPP) were part of the ten year youth strategy for positive activities, published in July 2007. The aim of the pilots was to make funds available so that the most disadvantaged young people in nine pilot areas could access positive activities. The nine pilot local authorities, launched in 2008, adopted different strategies to enable the young people to access positive activities, using mechanisms such as web-based, card-based and key worker approaches. This evaluation explores the relationship between the delivery models adopted and the impact on young people’s participation in positive activities. (25 February 2010)

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

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Civil Contingencies

DCMS: Consultation on draft Humanitarian Assistance strategic guidance: seeks views on a draft document aimed to help those responsible for the provision of humanitarian assistance in the event of a major incident (including local authorities). The consultation closes on 14 May 2010. It builds upon the 2008 guidance Humanitarian Assistance in Emergencies – Non-statutory guidance on establishing Humanitarian Assistance Centres and provides a steer on some issues that were not previously covered, e.g. medium and longer term care, and exit strategy. It also outlines a strategic capability building process that can be followed to ensure that HA is built and integrated into other emergency response and planning activities. (17 February 2010)

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

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Community Engagement

Commission for Rural Communities: The experience of participatory budgeting in rural England: presentation on the results of the CRC’s piloting of neighbourhood budgets in seven rural areas. The trials have been so successful that the CRC now wants more rural local authorities to adopt participatory budgeting. (18 February 2010)

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

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Corporate Manslaughter

Sentencing Guidelines Council: Corporate manslaughter and health and safety offences causing death: this guidance sets out principles to guide courts in dealing with companies and organisations that cause death through a gross breach of care or where breach of health and safety requirements are a significant cause of death. The guidance covers: factors likely to affect seriousness; compensation; publicity orders; remedial orders; and costs. The guidance also recommends that fines for companies and organisations found guilty of corporate manslaughter should seldom be below £500,000. (15 February 2010)
The MoJ has also issued a press release that highlights how courts can now make publicity orders against companies convicted of corporate manslaughter, that would compel them to inform shareholders, customers and (in the case of local authorities, hospital trusts and police forces) local people of the conviction, giving details of the case, the fine imposed and any remedial work they have been ordered to do. The publicity order could require the company to put a statement on its website or make an announcement in a newspaper. (16 February 2010)

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

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Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 2 and Transitional and Saving Provisions) Order 2010 (SI 2010/303 (C.25)): this Order brings a large number of provisions of the 2009 Act into force on either 26 February 2010, 1 April 2010, 19 April 2010, 1 September 2010 or 6 April 2011. The provisions coming into force on 1 April 2010 include Part 2 on education and training for persons over compulsory school age, and s.194 on Children's Trust Boards. (10 February 2010)

DCSF: First accredited schools announced; system extended to primary schools: announces the first wave of outstanding school leaders to gain the new Accredited Schools kite mark, enabling them to run chains of secondary schools through federations, trust schools and academies. In addition, parents will be given a say in bringing in accredited schools. From 1 April 2010, all potential sponsors and providers wanting to support new National Challenge Trusts or sponsor new Academies will need to gain accreditation. Also, school chains will be invited to apply to lead school improvement in primary schools. The press release gives details of the six Accredited Schools groups and the 13 Accredited Schools Providers for secondary schools. (23 February 2010)

Schools Forums (England) Regulations 2010 (SI 2010/344): these regulations, which come into force on 1 April 2010, revoke and replace SI 2002/2114 with a few changes, principally relating to the membership of Schools Forums. Every local authority must ensure that the schools forum for their area is constituted in accordance with these new regulations by 1 September 2010. (23 February 2010)

DCSF: Improving parental confidence in the special educational needs system - An implementation plan: sets out plans to implement all of the recommendations in the Lamb Inquiry's review of special educational needs. The action plan should help create a higher skilled workforce able to respond to children’s needs, more accessible information and advice for parents, and stronger accountability and redress when children do not get the support they need. (24 February 2010)

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

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Equalities and Human Rights Commission: Provision of goods, facilities and services to trans people - Guidance for public authorities: meeting your equality duties and human rights obligations: this guidance aims to help public authorities meet their equality duties and human rights obligations in the provision of goods, facilities and services for transgender users. The guide is for managers and front line staff of all levels and is illustrated with good practice examples. It will help public authorities to be clear on what they are expected to do to comply with the law and provide their trans service users with the goods, facilities and services to which they are entitled. (17 February 2010)

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

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Health and Social Care

Marmot Review: Fair society, healthy lives: final report of the Strategic Review of Health Inequalities in England post 2010, chaired by Sir Michael Marmot, that aimed to propose an evidence based strategy for reducing health inequalities from 2010. The strategy includes policies and interventions that address the social determinants of health inequalities. The report covers material which is of vital importance to local government. Local authorities have a vital role in building the wider determinants of good health and working to support individuals, families and communities. The report relates strongly to the core business of local councils as local leaders for health improvement and the reduction of health inequalities. The Local Government Association will be arguing for clearer recognition of this key role. (11 February 2010)

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

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Overview and Scrutiny

DCLG: John Denham says make councils the new focus for local lobbying: the Secretary of State has given a speech at the Scrutiny and Entitlements Conference on the new Local Authorities (Overview and Scrutiny) Bill that is currently before Palriament, which gives localauthroities strengthened powers to scrutinise all significant local public service spending in their area. The SoS calls on third sector groups to lobby for change on how local public services are run by making effective use of these proposed new powers of local council scrutiny committees to hold local services to account. (23 February 2010)

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

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Regulatory Services

HSE: General guidance about local authority provision of licensable activities - AALS inspector guidance note IGN 3.01: guidance on when local authorities need a licence under the Adventure Activities Licensing Regulations 1994. (4 February 2010)

LBRO: Local authorities regulatory services excellence framework: this is the first agreement between all the key players on what constitutes ‘excellence' in delivering outcomes through the local authority regulatory system. As well as providing a basis for assessing service delivery, the Excellence Framework is intended to provide a benchmark for national bodies, business and consumers to be reassured the quality of services. (15 February 2010)

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

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Shared Services

Audit Commission: Oneplace national overview report: this report reviews the first year of Comprehensive Area Assessment (CAA) and the CAA website Oneplace. It concludes that local public bodies need to learn from each other and work more closely together if they are to improve services and increase value for money. The picture across public services is broadly one of improvement, and the review reflects CAA's focus on local priorities, showing a wide variation in what different areas of England consider pressing issues; but it also indicates that there must be a greater focus on achieving better value for money. The report contains examples of both cross-organisation and cross-boundary working. An independent report evaluating CAA and its costs will be published in Spring 2010. (24 February 2010)

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

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Chegwyn v Standards Board for England (Unreported, Admin Ct): C, a councillor with Hampshire CC and Gosport BC, was disqualified by the SBE's Case Tribunal from holding public office for two years, after it found that he had breached the Members' Code of Conduct by participating in the borough council's decision making process regarding licences for a music festival. C was the sole director of the company that was organising the festival and which was funded by the ticket sales, but he failed to declare his interests before participating in the motion. C appealed against the Case Tribunal's decision, contending, inter alia, that the sanction was disproportionate.
The court held, allowing C's appeal, that disqualification was the most severe penalty and should only be imposed where a public representative had deliberately abused his position for personal gain or had deliberately breached a code of conduct such that he was entirely unfit for public office. In this case C could not be said to be such an individual. The appropriate sanction was suspension from the borough council only for a period of two months from the date of the instant hearing and not disqualification. Where a body appointed by the SBE felt that it was appropriate to disqualify an elected representative from public office it was not required to disqualify him from office in every local authority in which that representative held, or could hold, public office, and the tribunal had a discretion as to the extent of disqualification that was appropriate. (15 February 2010)
The judgment is available on Lawtel (password required).

Standards for England: Blogging quick guide: sets out pointers for councillors who maintain blogs, with advice on how to ensure that they comply with the Code of Conduct when communicating on blogs and social networking sites. (25 February 2010)

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

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Structural Changes

Draft Exeter and Devon (Structural Changes) Order 2010: this draft Order provides for the establishment on 1 April 2011, of a single tier of local government for the city of Exeter. A new county, to be known as Exeter, is created, with the same area as the city, but without county councillors. The area of the city is excluded from that of the county of Devon from 1 April 2011. The city will be administered on and after 1 April 2011 by Exeter City Council. (15 February 2010)

Draft Norwich and Norfolk (Structural Changes) Order 2010: this draft Order provides for the establishment on 1 April 2011 of a single tier of local government for the city of Norwich. A new county, to be known as Norwich, is created, with the same area as the city, but without county councillors. The area of the city is excluded from that of the county of Norfolk from 1 April 2011. The city will be administered on and after 1 April 2011 by Norwich City Council. (15 February 2010)

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

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Vetting and Barring

 LGE: Vetting and barring scheme: LGE has substantially updated its advice on vetting and barring with information on "What the employer should do / What the employee should do" and "What to do with employees who the ISA are 'minded to bar' ". This advice supersedes any earlier LGE advice. (22 February 2010)

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

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Legislative Competence Orders: three LCOs have been made that amend Sch.5 Part 1 to the Government of Wales Act 2006 so as to give the Welsh Assembly power to make laws (“Assembly Measures”) relating to an number of specified matters:

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 include:

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

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