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 four 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:

   Children's Services    Governance
   Elections    Health and Social Care
   Employment    Members
   Europe    Procurement
   Finance    Wales
   Bevan Brittan's Local Government Training Programme

Children's Services

R (TG) v Lambeth LBC [2010] EWHC 907 (Admin) (Admin Ct): TG applied for judicial review of the council's decision not to deal with him as a "former relevant child" within the meaning of s.23C(1) of the Children Act 1989 for the purposes of leaving care support. Whether he was such a child depended on whether he was at any relevant time a "looked after child" within the meaning of s.22 of the 1989 Act, which in turn depended upon the functions that the council was exercising when it provided him with accommodation when he was 16 years old. TG submitted that when the Youth Offending Team social worker reported to the homeless person's unit she was exercising a social services function identifying TG as a "child in need" and was recognising a duty on the local authority's behalf to accommodate G under s.20. G contended that he was therefore a "former relevant child" and so was entitled to the continuing functions of the local authority.
The court held, refusing TG's application, that a child only became a looked after child once accommodated by a local authority in the exercise of its social services functions and that there was a limit to the cases in which it would be held to have so acted. The duty arose when the relevant factors came to the attention of those charged within the local authority with children's social services. Whilst the supervising officer of the Youth Offending Team was the director of children's services, the functions of the team remained those assigned by the Crime and Disorder Act 1998. The local authority's children's social services team had never had TG's needs drawn to their attention and so TG was not a former relevant child. (29 April 2010)

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

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Closed polling stations open the doors for legal action: the problems at a number of polling stations at the end of election day on 6 May (which led to some voters not being able to vote) have been widely reported and are now the subject of review and scrutiny. We have produced a briefing in which we look at what impact this could have and what local authorities, individual Returning Officers and Deputy Returning Officers affected will need to do to establish their respective obligations and responsibilities with regard to both the parliamentary and local elections, along with any relevant insurance arrangements. (7 May 2010)

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

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LGA: Local Government Workforce Strategy 2010 - Delivering through people: this updated strategy sets out the priority actions the LGA Group is taking nationally to tackle councils' critical shared workforce challenges, and provides a framework for councils to review what actions they are taking locally to tackle their most important workforce challenges. (28 April 2010)

R (Shoesmith) v Ofsted [2010] EWHC 852 (Admin) (Admin Ct): S was Director of Children's Services at H LBC. Following the death of a 17 month old child who had been on the child protection register, Ofsted produced a report indicating that H LBC's children's services were inadequate and that there were systemic management failures. In consequence, the Secretary of State (SoS) directed the appointment of another named individual to S's post, using his powers under s.497A Education Act 1996. S was summarily dismissed from her employment and her appeal against her dismissal was unsuccessful. She sought judicial review of the Ofsted report and the process that led to it, the action of the SoS to remove her from her statutory office based upon it and the actions of H LBC in dismissing her from her employment, and a declaration that each resulted from legally actionable unfairness.
The court held, refusing S's application, that S had not established an entitlement to relief against the SoS's decision or against Ofsted. There was no evidence that the Ofsted report had been made to order at the instance of, or on behalf of, the SoS and that the results of the inspection were thus either a foregone conclusion or had been manipulated to give grounds for his decision. Regarding the SoS's direction, in the particular context of this case the right of an individual to be treated fairly had to assume a lower profile than the need to take a decision in the wider public interest of child safeguarding. There was nothing irrational about a truncated investigation and nothing wrong about being less concerned about the principle of fairness to individuals than in other cases. However, it was not clear to what extent the inter-relation between the SoS's powers under s.497A and the contractual obligations of a local authority towards an employee who had to be removed from a position because of such a direction had been considered by Parliament. The judge recommended that central government, local government organisations and representatives of those who were employed in positions that might be affected by a s.497A direction had discussions to establish a protocol for dealing with this kind of situation if it arose in the future. The Employment Tribunal was the appropriate venue for determining the issue of the fairness or otherwise of S's summary dismissal by H LBC. (23 April 2010)

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

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European Parliament: Late payments in business transactions -  a step forward: announces that the European Parliament's Internal Market Committee has approved amendments to a planned EU Directive designed to tackle the problem of late payments. MEPs have withdrawn the proposal to impose a penalty of 5% of the invoice amount if the bill was not paid within 30 days, and instead have voted to increase the stautory interest rate payable if a payment was late to the reference rate plus nine percentage points. (29 April 2010)

LGA: Rough guide to European affairs – European Commission work programme 2010: highlights key issues for councils in the EC’s 2010/2011 annual work programme, published in March 2010, which sets out proposed EU legislation and policies. It includes a note of planned proposals on structural funding, waste and energy, procurement, and a quality framework for public services. (29 April 2010)

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

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DCLG: 2010-11 Grant determination notification to CEOs: this letter to local authority Chief Executives and Chief Finance Officers provides the 2010-11 allocations for Area Based Grant. It attaches the Grant Determination made under s.31 LGA 2003 which provides the legislative authority for the payments. For details of the amount for each funding stream for each council in 2010-11 and the monthly payments, see the spreadsheet Area Based Grant Allocations 2010-11 (including monthly payment schedule) (revised April 2010). This letter, the Grant Determination and the allocations in the Annex to the Determination, replace the version circulated on 31 March 2010. (9 April 2010) 

DCLG: FRS Circular 20/2010 - Capital grant funding: provides information on capital grant funding being awarded to Fire and Rescue Authorities in 2010 -11. (16 April 2010)

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

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IDeA: Joining the chain gang - preparing for the role of Civic Mayor: this workbook assists members in preparing for the role of civic mayor or the equivalent civic head of a council. It gives a broad outline of the key duties and responsibilities that the member will be taking on and provide some clear guidance about the benefits and pitfalls of the role. It is not aimed at directly-elected Executive Mayors, but at those appointed as Chairman under s.3 LGA 2000, who must act as a politically impartial chairman of the council, making sure that proper conduct takes place in the council chamber during meetings. The Civic Mayor also has a duty and privilege to support local initiatives aimed at providing benefit to the council area and its diverse communities, and has a ceremonial role. (12 April 2010) 

Audit Commission: Doncaster Metropolitan Borough Council - Corporate governance inspection: sets out the Commission's findings from its inspection that was carried out because of repeated evidence over more than 15 years that the council was not well run. The Commission found that the council was failing in its legal obligation to make arrangements to secure continuous improvement in the way in which it exercised its functions, having regard to a combination of economy, efficiency and effectiveness. The Commission has recommended that the Secretary of State use his powers under s.15 of the Local Government Act 1999  to issue a direction to intervene, and sets out steps that could be taken to improve the council's performance. The Communities Secretary John Denham has accepted the Audit Commission's report on Doncaster MBC and has said he will use his statutory powers to intervene. (19 April 2010)

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

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Health and Social Care

IDeA: A glass half-full – How an asset approach can improve community health and wellbeing: this guide offers a fresh perspective on how to reduce inequalities in community health and well-being. It proposes assessing and building on the strengths and resources in a community to increase resilience and social capital, and develop better ways of delivering health outcomes. Mounting evidence shows that when practitioners begin with what communities have – their assets – as opposed to what they don't have – their needs – a community's ability to address those needs increases. So too does its capacity to lever in external assistance. This publication offers local authorities, health practitioners and politicians an introduction to the asset model approach and principles and gives examples of how it is being used in England. It also outlines a set of coherent and structured tools that put asset model principles into practice. (23 April 2010)

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

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IDeA: Councillor's guide 2010/11: revised and updated guidance for newly elected members on the things they need to know at the start of their careers in public life. It:

  • discusses councillors’ roles and responsibilities as ward representatives;
  • explains how councils work and how they are funded;
  • examines the various checks and balances that regulate councils and councillors; and 
  • stresses the importance of community leadership.

 (26 April 2010)

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

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IDeA: Tackling worklessness - Targeting jobs and training through the procurement process: guidance on how to use procurement to generate jobs and training opportunities, while handling potentially conflicting objectives such as cost reductions, quality and timely delivery. (16 April 2010)

Welsh Assembly Government: Community benefits - Delivering maximum value for the Welsh pound: guidance on the different approaches that procurers can take to deliver added value by the inclusion of community benefits in their procurement activities. It shows how community benefits can be legitimately promoted within the policy and legal framework governing public procurement, with case studies and examples. There is also a flow chart. (26 April 2010) 

Apcoa Parking (UK) Ltd v Westminster City Council [2010] EWHC 943 (QB) (QBD): AP applied for an interim injunction to restrain W council from awarding any contract in respect of parking enforcement or street management services to any of the bidders in its public procurement process. W had abandoned a procurement of on-street parking services after AP alleged that W had behaved unlawfully in the course of the procurement process. W then subsequently started a new procurement process but AP alleged that it was effectively precluded from competing in that second procurement. AP brought proceedings to set aside W's decision to abandon the first process and to amend some decisions made in that first process. W submitted that there was no relevant issue ot be tried and that AP had failed to demonstrate why damages would not be an effective remedy.
The court held, dismissing AP's application, that there was no legal basis to overturn or quash W's decision to terminate the first procurement process and so there was no prospect of obtaining the injunctive relief sought. There was therefore no need to maintain the status quo and so the claim for interim relief fell. The balance of convenience lay clearly in favour of not imposing further delays on W or further obstruction to its procurement process in relation to those important services. (29 April 2010)

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

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School Funding (Wales) Regulations 2010 (SI 2010/824 (W.87)): these regulations, which come into force on 1 September 2010, provide for the funding of maintained schools in Wales for the financial years that commence on or after 1 April 2011. They revoke and replace existing SIs relating to the schools budget. (16 March 2010)

Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Subordinate Legislation) (Wales) Order 2010 (SI 2010/1142 (W.101)): this Order, which comes into force in Wales on 5 May 2010, reflects the integration within local authorities of children’s services departments and education departments by using the term local authority (rather than having the two terms, local education authority and children’s services authority to cover the same body) It replaces references in regulations and orders to "local education authorities" and "children’s services authorities" with references to "local authorities". (1 April 2010)

WAG: First Minister welcomes new law-making rights for Assembly: announces that four Legislative Competence Orders (LCOs) have received Royal Approval, conferring law-making powers on the National Assembly:

  • Transport LCO (SI 2010/1208): enables the Assembly to legislate in relation to the types of vehicles used to provide learner transport and the safety features that they should have;
  • Local Government LCO (SI 2010/1211): allows the National Assembly to legislate to strengthen the role of town and community councils, remove barriers and disincentives to people standing for election to community and unitary councils, improve relationships between tiers of local government and introduce a new system for councillor allowances;
  • Culture LCO (SI 2010/1212): gives the Assembly the power to implement the One Wales commitment to place a statutory obligation on local authorities to promote culture and encourage partnership to deliver high quality cultural experiences for their communities; and
  • Education LCO (SI 2010/1209): extends the field of legislative competence in relation to education and training to include the conduct and governance of maintained schools, securing collaboration between persons or bodies with functions relating to maintained schools and conferring authority on governing bodies to establish a body or other education body that can provide services to schools and Further Education Institutions or which would be able to exercise functions on behalf of local education authorities.

(13 April 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.

The full Local Government Training Programme is available on our website. Forthcoming seminars in 2010 include:

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

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