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    Local Area Agreements
   Adult Social Services    Powers and Duties
   Anti Social Behaviour    Procurement
   Audit    Regulatory Services
   Children's Services    Standards
   Commons    Structural Change
   Education    Third Sector
   Efficiency    Traffic and Transport
   Bevan Brittan's Local Government Training Programme

Access to Information

Audit Commission: The truth is out there - transparency in an information age: this discussion paper looks at how the public sector can improve information made available to the public. It aims to stimulate debate on transparency in the public sector, and poses questions such as 'What information will capture the public’s imagination?' and 'How will the public know what information to trust?'. It shares learning and innovative practice from Britain and other parts of the world, highlights the challenges and risks of making data and information more widely accessible, and suggests some ways to mitigate those risks in the years ahead. (5 March 2010)

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

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Adult Social Services

R (M) v Hammersmith & Fulham LBC and Sutton LBC; R (Hertfordshire CC) v Hammersmith & Fulham LBC (Unreported) (Admin Ct): the issue in this case was which local authorities were responsible under s.117(3) of the Mental Health Act 1983 for meeting the accommodation and aftercare costs of individuals who had been discharged back into the community following detention for mental health treatment. The court considered the meaning of "ordinarily resident" and "resident" in the National Assistance Act 1948.
The court held that "resident" and "ordinarily resident" were to be given their ordinary English meaning, and there was little, if any, perceptible difference between them. Those phrases all connoted settled presence in a particular place other than under compulsion. On the proper construction of s.117(3), the accommodation and aftercare costs for individuals who had been discharged back into the community following detention in hospital for treatment under s.3 of that Act were to be met by the local authority where he was resident, or to which he was discharged by the hospital. The deeming provision of the National Assistance Act 1948 s.24(5), that an individual was "resident" in the area in which he lived immediately before becoming a patient at the hospital, made no difference to the meaning of s.117. (3 March 2010)
The judgment is available on Lawtel (password required).

DH: Ordinary residence - guidance on the identification of the ordinary residence of people in need of community care services, England: provides information and advice to local authorities and certain other bodies on the identification of the ordinary residence of people in need of community care services. The guidance anticipates the coming into force of s.148 of the Health and Social Care Act 2008 on 19 April 2010. It revokes and replaces the existing ordinary residence guidance contained in LAC(93)7 from that date. The guidance should be read in conjunction with the following Directions:

DH: Leading the way through social enterprise: the Social Enterprise Pathfinder Programme evaluation: the Social Enterprise Pathfinder Programme, which was established in 2006, followed 26 social enterprises and examined what factors appear to be early indicators for success and outlined the challenges in delivering health and social care services. Tribal Newchurch carried out an evaluation of the Social Enterprise Pathfinders over a two year period. This document highlights some of their key findings, which we should be helpful for those who are currently involved in setting up a social enterprise to deliver health and social care services. (4 March 2010)

IDeA: Members' guide: Top tips on improving outcomes through better commissioning of adult social care: local authorities spend some £18bn p.a. on adult social care including £11.6bn on external providers. Local authorities are under pressure to reduce expenditure on, and the cost of, adult social care; at the same time services users and carers expect high quality services. Members need to understand how services can be improved and how they can be delivered more efficiently. This guide from the IDeA provides tips on how local authorities can make savings through better commissioning of adult social care. (9 March 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: Safe and confident neighbourhood strategy: sets out the Government's strategy for ensuring the rights of everyone to be safe and confident that crime and anti-social behaviour are tackled in their neighbourhoods. It includes enabling communities to negotiate and sign neighbourhood agreements on how their local services, including the police, will keep their neighbourhood safe, with funding for 12 neighbourhood agreements pathfinder areas, along with support to 100 more areas interested in developing neighbourhood agreements. (1 March 2010)

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

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Audit Commission: Cheltenham Borough Council public interest report: this report by KPMG LLP, issued under s.8 of the Audit Commission Act 1998, highlights flaws in the council's decision-making process in pursuing a legal claim for damages against its former Managing Director Christine Laird. The council lost the case in June 2009, and incurred external costs of £1.045m. The report acknowledges that it is not unreasonable for a council to go to court to seek recovery of a substantial financial loss; however, it found that, in this case, there was a lack of clarity in the council's constitution over who should make decisions about this significant legal case, there were flaws in the decision-making process with an over-emphasis on legal matters and not enough on financial, reputational and risk matters, and the council did not manage this as a corporate issue. The report makes 26 recommendations for the council to consider. (2 March 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

Local Safeguarding Children Boards (Amendment) Regulations 2010 (SI 2010/622): these regulations, which come into force on 1 April 2010, amend SI 2006/90 by adding four further persons or bodies to the list of prescribed representatives on LSCBs. The additions are: the governing body of a maintained school; the proprietor of a non-maintained special school; the proprietor of a city technology college, a city college for the technology of the arts or an Academy; and the governing body of a further education institution the main site of which is situated in the authority’s area. (10 March 2010)

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

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R (Lewis) v Redcar and Cleveland BC [2010] UKSC 11 (Sup Ct): this case concerned the meaning of “as of right” in the Commons Act 2006. R, a local resident, applied under s.15 of the 2006 Act to have a piece of land registered as a town or village green. The land had been used until 2002 as a golf course by the tenants of the land. The inspector recommended to the council, which was the relevant registration authority, that the land should not be registered. He found that although the local inhabitants had indulged in lawful sports and pastimes on the land for 20 years, they had “overwhelmingly deferred” to the landowner’s use of the land by, amongst other things, waiting for the golfers to play their shots before they walked across the course. Such use, he concluded, was not “as of right”. On the inspector’s recommendation, the council decided not to register the land. On R’s application for judicial review, the High Court and the Court of Appeal both upheld the council’s decision.
The Supreme Court held, allowing R’s appeal, that the council should register the land as a village green. In order to be “as of right”, use must not be by force, nor stealth, nor by permission of the landowner. There was great difficulty in seeing how a reasonable landowner would have concluded that the residents were not asserting a right to take recreation on the disputed land simply because they showed civility towards members of the golf club. There was little danger in normal circumstances of registration leading to a sudden diversification or intensification of use by residents: the parties could co-exist. Lords Hope and Kerr considered that there was a broad equivalence between the use relied on to establish the right and what the land might be used for after registration, although there may be some asymmetry as to the manner of its use pre- and post-registration. Lord Brown considered that the locals could increase their use of the land but only in so far as it would not be incompatible with the owner continuing with his previous use. The court suggested that the forthcoming government review of village greens should look at the consequences of registration as revealed by the developing case law as well as how the registration system itself is working. (3 March 2010)

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

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DCSF: The Education (Prescribed Public Examinations) Regulations 2010: seeks views on proposals to revoke and replace SI 1989/377 in order to clarify maintained schools' statutory obligations in respect of examination entries and charges which were set out in the Education Act 1996. The changes are being made as it is felt that the 1989 Regulations no longer reflect the range of qualifications being offered in maintained schools. The consultation closes on 11 May 2010. (2 March 2010)

Oxfordshire CC v L (Unreported, QBD): the LEA made a school attendance order requiring K, who was the subject of a statement of special educational needs, to become a registered pupil at a certain school. L, K's mother, elected to have K educated at home, alone, supported by L and occasional tutors. L was charged under s.443 of the Education Act 1996 with failing to comply with the order.  The magistrates' court held that the LEA had not proved beyond reasonable doubt that home education was insufficient for K such that he could not receive a suitable education. The issue on appeal was where the burden of proof lay concerning whether or not a child had been able to receive a suitable education otherwise than in accordance with the order.
The court held, allowing the LEA's appeal, that s.443(1) provided a defence to a parent, who would otherwise be guilty of an offence of failing to comply with a school attendance order, through that parent proving that a child had been able to receive a suitable education otherwise than at school. The burden of establishing that defence was firmly on the parent. The magistrates' court had erred in proceeding on the basis that the burden was on the LEA to prove beyond a reasonable doubt that home education was insufficient for K such that he could not receive a suitable education. (3 March 2010)

DCSF: Extra transport funding announced as part of £90 million Diploma package: announces £2.9m funding to local authorities so that students in rural and semi-rural areas can travel to Diploma learning centres more easily. Funding of up to an additional £120 per Diploma student in rural areas is already available to local authorities through the sparsity weighting. This weighting will vary for each local authority, depending on the number of learners recruited and how populated the rural the area is. But research has shown a need for a higher level of support because Diploma students visit a number of sites, including a school or college and employers, as part of their courses. As a result, a further £80 per student will be added to the sparsity factor for local authorities in 2010-11, taking it to £200 per student. The total sparsity weighting now available in the Diploma Formula Grant for next year will be £3.5m. (3 March 2010)

DCSF: Education (Recoupment) (England) Regulations 2010: seeks views on proposed new regulations for recoupment in England that update the Education (Inter-Authority) Recoupment Regulations (England and Wales) 1994 (SI 1994/3251). Recoupment is purely financial, and is currently related to pupils with statements of special educational needs, in special schools, or in hospital schools, who belong in one local authority but are educated in another. The 1994 Regulations allow the local authority providing the education to charge the local authority where the child belongs for the additional costs of educating the child. The aim of the new regulations is to improve clarity and consistency by ensuring that the regulations reflect current requirements and legislation. The consultation closes on 31 May 2010. (8 March 2010)

DCSF: Breaking the link between special educational needs and low attainment - everyone's business: this report considers what works well for local authorities and schools in improving outcomes for children with SEN. It suggests key principles and guidance in areas of collaboration, leadership, teaching strategies, engaging parents, and wider well-being. (5 March 2010) 

Education (Wales) Measure 2009: this Measure gives children and young people the right to make an appeal in respect of special educational needs to the Special Educational Needs Tribunal for Wales and gives them a right to make a claim in respect of disability discrimination in schools to the Tribunal. It also makes changes to current legislation relating to the school curriculum which flow from the implementation of the foundation phase (3 to 7 year olds) of the National Curriculum for Wales. The first key stage is removed from the National Curriculum for Wales and the “foundation stage” is re-named the “foundation phase”. The Measure also makes changes to legislation relating to students’ local curriculum entitlement (16-18 age group). (8 March 2010)

DCSF: Schools to get access to over a thousand extra money-saving experts: announces that the National College for Leadership of Schools and Children Services has been given £5m to fund 250 school business managers who will work across for four or five primary schools in their local authority area, helping them save significant money off their budgets, so that the schools' front line service is maintained and improved. There will be funding for a further 250 school business managers in each of the following three years. Pilots run by the National College show that head teachers with access to school business managers report reduced workloads, with higher-level school business manager role having a potential to free up to 30 per cent of their time. There was also evidence that the new roles are allowing schools to release funds by maximising existing resources and engaging clusters of schools to work together strategically. (9 March 2010)

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

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DCLG: Putting the frontline first - meeting the local government challenge: this Task Force report challenges local authorities to take a strategic approach to managing their budgets and to take urgent and radical action to transform services. The first part of the report sets out strategic questions which council leaders need to be asking themselves about their council. Council leaders should use this to challenge their senior officers to ensure that the necessary action is being taken. The second part sets out ten decisive steps that all councils should act on to protect vital frontline services in an era of tighter public finances, with a framework of actions, tools and resources. (1 March 2010)

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

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Local Authorities (Capital Finance and Accounting) (Amendment) (England) Regulations 2010 (SI 2010/454): these regulations, which mainly come into force on 1 April 2010, make a number of technical amendments to SI 2003/3146. The changes include permitting local authorities to use capital receipts to meet the costs of or incidental to a disposal of an interest in land other than housing land, provided these do not exceed 4% of the capital receipt arising from the disposal; and also allow “claw-back” payments to a previous owner to be paid out of capital receipts. They also extend until 2013 the local authorities' ability to defer charging liabilities for back pay due to equal pay claims to a revenue account until the date on which the back payment must actually be paid, and deal with the accounting treatment for short-term accumulating absences of employees and for leases. (2 March 2010)
DCLG has issued a letter and informal commentary for finance directors and chief executives that summarises the intended effects of the regulations.

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

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Local Area Agreements

DCLG: Report on the 2009 Survey of all English Local Area Agreements - Long-term evaluation of local area agreements and local strategic partnerships: Executive summary: executive summary of a survey report that explories how the local area agreement is helping partnerships achieve positive outcomes for local people. It was conducted as part of the long-term evaluation of local area agreements and local strategic partnerships. (12 March 2010)

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

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Powers and Duties

DECC: Allowing local authorities to sell electricity - consultation on making regulations under the Local Government (Miscellaneous Provisions) Act 1976 and the Local Government (Scotland) Act 1973: seeks views on a proposal to allow local authorities from across Great Britain to sell electricity generated by renewable sources. Section 11(3) of the 1976 Act generally prohibits local authorities in England and Wales from selling electricity which is produced otherwise than in association with heat. These draft Regulations give local authorities power to sell electricity which they generate from renewable sources by prescribing the circumstances in which a local authority is entitled to sell electricity by way of exception from the requirements in s.11(3). The consultation closes on 2 June 2010. (2 March 2010)

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

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OGC: Procurement Policy Note - Time limits for challenges under the Public Procurement Regulations (Action Note 03/10): discusses the implications of the ECJ's decision in the Uniplex case for the time limits that apply to challenges brought under Part 9 of the Public Contract Regulations. In Uniplex v NHS Business Services Authority (C406/08), the court held that national requirements for a challenge to be brought promptly are contrary to EU law because they prevent claimants from knowing the exact time limit that will apply. The ECJ further held that time should begin to run from the date the claimant knew or ought to have known of the breach, rather than the date of breach itself. (22 February 2010)

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

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Regulatory Services

DfT: Taxi and private hire vehicle licensing - best practice guidance: guidance to assist local licensing authorities in carrying out their taxi and private hire vehicle licensing functions. (2 March 2010)

DEFRA: Consultation on dangerous dogs:  seeks views on whether current legislation relating to dangerous dogs adequately protects the public and encourages responsible dog ownership. It contains a number of options as to how the current situation regarding dangerous dogs might be improved, including: 

  • an extension of the criminal law to all places, including private property; 
  • the introduction of Dog Control Notices; and 
  • more effective enforcement of the existing law, including a consolidation of existing statutes into one new updated Act.

The consultation closes on 1 June 2010. (9 March 2010)

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

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Standards for England: Local Standards 2.0 – the proportionality upgrade? A review of the local standards framework: evaluates the success of the local standards framework and makes recommendations to improve it. SfE has collected opinion from the full range of stakeholders, weighing it alongside findings from its research programmes and evidence from cases, from its monitoring of local authorities’ standards work, and from its advice and guidance help desk. The review considers the principles which ought to underpin the operation of the local framework, and takes them into account in making proposals for change and improvement. (5 March 2010)

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

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Structural Change

HL Merits of Statutory Instruments Committee: Draft Exeter and Devon (Structural Changes) Order 2010 / Draft Norwich and Norfolk (Structural Changes) Order 2010: this report critically examines the Government’s decision to create unitary councils for Exeter and Norwich. It finds that the proposals do not conform with all of DCLG’s five published criteria nor does the supporting material combine to make a clear, evidence-backed case for the proposal. The Committee remains unclear how unitary status is expected to solve the problems identified in relation to each city, without creating unacceptable consequences elsewhere. (4 March 2010)

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

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Third Sector

Office of the Third Sector: Thriving third sector - a user guide for the National Survey of Third Sector Organisations: this guide analyses the results of the National Survey of Third Sector Organisations that provide a huge source of information on the third sector and its relationship with local public bodies. The guide aims to help drive improved local performance against National Indicator 7 and improve the relationship between third sector and its public sector partners. The guide aims to help everyone think about how performance can be improved locally so that third sector organisations and local public sector bodies can together meet the needs and aspirations of their local communities, with practical suggestions on how to use the survey data in the most effective way at a local level. (10 March 2010)

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

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Traffic and Transport

DfT: Improving bus passenger services through the regulatory framework: seeks views on possible changes to the legal framework that applies to local bus services to provide greater effectiveness and improvement in service delivery. It proposes a range of measures to improve services, including: 

  • proposals to allow local authorities to set maximum ticket prices for all, or certain categories, of passengers at a level less than the existing commercial fares;
  • a requirement that new services must operate without variation for a minimum of 90 days in order to provide a greater degree of stability for passengers;  
  • reduction of administrative costs for local authorities when tendering for new services; 
  • increased notification period of new services to enable local authorities to provide up to date travel information to passengers; 
  • financial penalties for operators who fail to enforce dedicated wheelchair spaces on buses.

It also seeks views on how the conduct of drivers and passengers might be improved more generally and how inconsiderate or anti-social behaviour might be tackled. The consultation closes on 1 June 2010. (9 March 2010)

DfT: Guidance for local authorities on the change in the age of eligibility for concessionary travel: the Travel Concessions (Eligibility) Act 2002 sets the age at which older people are eligible for travel concessions as 60 years for both men and women. However, the Pre-Budget Report in December 2009 announced that there will be changes to the age of eligibility for concessionary travel in line with the changes that are being made to the state pension age from April 2010, so that from 6 April 2010, the age of eligibility for concessionary travel in England will be linked to the pensionable age applying to women. This guidance note helps local authorities assess whether someone is entitled to the concession based on their age. (11 March 2010)

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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