Case Law Update – Mental Health Act 1983
Oct 24 2024
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Read MoreThis 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 thetwo weeksup to2 July 2010. Items are set out by subject, with a link to where the full document can be found on the internet.
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:
R (Mwanza) v Greenwich LBC and Bromley LBC [2010] EWHC
1462 (Admin) (Admin Ct): M, a Zambian national, sought judicial
review of the local authorities' decisions not to provide him with
accommodation and financial support following his discharge from
the Mental Health Act 1983 s.3. M contended that the duty to
provide aftercare services under s.117 of the 1983 Act included an
obligation to house him; alternatively, if no duty were owed to him
under s.117, then the local authority owed a duty to
accommodate and support him under s.21 of the 1948 Act.
The court held that a local authority's responsibility to provide
aftercare services under s.117 of the Mental Health Act 1983 was
restricted to those services necessary to meet a need arising from
the former patient's mental disorder. The local authority had been
correct to find that there was no need for accommodation and
support as an aftercare service, as M's need for accommodation did
not stem from his mental condition. The duty to provide
accommodation under s.21 was conditional upon the applicant being
in need of care and attention which was not otherwise available to
him. In any event, because M's wife (and hence M) did not have
leave to remain in the UK, M's claim clearly fell within the scope
of Sch.3 to the Nationality, Immigration and Asylum Act 2002, so
that the local authority was forbidden from granting s.21
assistance unless support were necessary to avoid a breach of human
rights. (15 June 2010)
DH: The Mental Capacity Act (LAC (DH)(2010)3): the Mental Capacity Act 2005 requires a review of much existing policy and practice in relation to enabling people who lack capacity to be assisted to make decisions and access services. This circular covers 2010-11 resources for the implementation of the Act. (28 June 2010)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
TSA: Taking action against anti-social behaviour: this report sets out the findings of a survey on anti-social behaviour. It identifies which activities are priorities for housing, what work is currently being undertaken, the effectiveness of existing partnership arrangements and the main barriers within the housing sector to developing long-term solutions to anti-social behaviour. (22 June 2010)
If you wish to discuss any of the items noted in this section please contact Kane Kirkbride.
Ofsted: Guidance on inspecting and regulating childrens homes with accommodation for adults: seeks to clarify for providers Ofsted's policy on how it will inspect and regulate a children’s home that also provides care and accommodation for adults. (18 June 2010)
Improvement Network: Children and young people - tools: to support improvement in children's trusts, two new tools have been developed:
(25 June 2010)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson. ^back to the top
DCLG: Call to arms in battle against red tape: the Government has launched a new Your Freedom website that asks the public how they want the Government to redress the balance between the citizen and the state. It asks the public to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses. In addition, the Communities Secretary Eric Pickles will shortly be asking councillors and council staff to suggest how the amount of outmoded, outdated and obsolete secondary legislation can be reduced. (1 July 2010)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^back to the top
DCLG: Councils and businesses to rebalance local
economy: announces plans for Local Enterprise Partnerships
(LEPs) that will replace the current RDAs. Business Secretary
Vince Cable and Communities Secretary Eric Pickles have written to councils and business leaders,
asking them to consider forming new LEPs that can provide strategic
leadership in their local areas and create the right environment
for business success and economic growth. LEPs will tackle issues
including planning and housing, local transport and infrastructure,
employment, enterprise and supporting business start-ups.
Partnerships of local authorities and businesses interested in
forming LEPs should submit outline proposals by 6 September 2010.
Legislation to abolish RDAs was announced in the Queen’s Speech and
is expected to be introduced to Parliament in the autumn.
The Government has also launched the Regional Growth Fund, first
announced in the Budget, which will operate in 2011/2012 and
2012/2013 and will help areas most dependent on public sector
employment as the country makes the transition to private
sector-led growth and prosperity. Both private bodies and
public-private partnerships will be able to bid for funding by
demonstrating that their proposal will bring in private investment
and support sustainable increases in private sector jobs and growth
in their area. Full details of the Regional Growth Fund, including
who will be eligible to apply, and the criteria and process for
assessing bids, will be set out in the forthcoming White Paper on
local and regional growth. (29 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
DBIS: Colleges to bid for funding for building projects: announces that 150 Further Education colleges which have yet to benefit significantly from the capital programme will each receive a share of a new £30m Renewal Grant. A further £20m will be made available to colleges through an Enhanced Renewal Grant through which colleges will be able to bid on a project basis for up to £1m and will be expected to raise significant further private investment. The criteria for FE colleges wishing to submit a bid for a share of the funding include: condition of the college and its facilities; the benefits to learners; and adding to regeneration of local communities. (21 June 2010)
DfE: Further freedoms for schools and colleges: announces further moves to free up colleges and schools and remove bureaucracy from the education system:
(24 June 2010)
DfE: Guidance on management committees for Pupil Referral Units - Constitution and roles and responsibilities: guidance on the requirements in the Education (Pupil Referral Units) (Management Committees etc.) (England) Regulations 2007 regarding the constitution and roles and responsibilities of Pupil Referral Units' (PRU) management committees. From 13 November 2007 local authorities need to choose a constitutional model and formally adopt this by making an Instrument of Government for their PRUs. The guidance is mainly intended for local authority officers responsible for provision and for the clerks and chairs of management committees. (2 July 2010)
DfE: Internal exclusions guidance: internal exclusion is an internal process within the school and is used when the objective is to remove the pupil from class, not from the school site, for disciplinary reasons. It may be a formal process within the school but it is not a legal exclusion so exclusions legislation and the DfE's guidance on exclusion from school does not apply. This guidance on internal exclusion is aimed at all schools and offers advice and good practice that schools may find helpful. There is no requirement for schools to follow this guidanc; it should be used as a guide as to what internal exclusion should look like. (2 July 2010)
DfE: School discipline and pupil-behaviour policies: this guidance aims to help schools understand their overall legal powers and duties as regards establishing a school behaviour policy and disciplining pupils. It also provides more specific advice on certain key sanctions (detention and confiscation). It focuses particularly on provisions in the School Discipline chapter of the Education and Inspections Act 2006 , which came into force on 1 April 2007. The guidance replaces earlier guidance provided by the National Strategies on school behaviour and attendance policies. (2 July 2010)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson. ^back to the top
See also the LGA's
Budget - on the day briefing. (22 June 2010)
The Finance Bill was introduced into Parliament on 28
June. It enacts the key tax measures at the heart of the Emergency
Budget package. There will be a further Finance Bill in the autumn
that will introduce minor, technical measures announced by the
previous Government. That Bill will be published in draft later
this month, to allow thorough pre-legislative scrutiny.
HM Government: Public sector spending challenge: as part of the Spending Review set out in the Budget, the Government has launched a ‘Spending Challenge’ aimed at engaging the country in thinking about public services and how they are provided. The Prime Minister and Deputy Prime Minister have written to public sector workers asking for their ideas on how the Government can do more for less. The first phase of the challenge aims to harness the expertise of those working on the front line, including NHS workers, police officers and civil servants. They say that all serious ideas will be considered by the Cabinet Office and Treasury and passed to departments to consider how they might be implemented. People can submit their ideas to the Spending Challenge website and a summary of the submissions will be published later this year. The public sector phase of the Spending Challenge will end on 9 July and the process will then be opened up to the general public. (24 June 2010)
CIPFA: After the manifesto - delivering the plan: this publication sets out the actions that CIPFA believes the Government needs to take to build an effective strategy for restoring order and balance to public finances. It urges the Government to act early to prepare the ground for the longer term strategy, which must create simple, well-designed and lasting structures for public service delivery. It also argues that what needs to happen now is for the Government to deliver a complete picture of its plans to fully inform debate within Parliament, the public and the markets. (25 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
HM Treasury: Chancellor announces John Hutton to chair commission on public service pensions: announces that John Hutton has agreed to chair the independent Public Service Pensions Commission, which will undertake a fundamental structural review of public service pension provision by Budget 2011. The Commission will produce an interim report in September 2010 ahead of the Spending Review. (20 June 2010)
HM Treasury: Hutton Review of fair pay in the public sector: announces that the Government has commissioned economist and commentator Will Hutton to conduct an independent review of fair pay in the public sector. The Review will investigate pay scales across the public sector, and make recommendations on how to ensure that no public sector manger can earn more than 20 times the lowest paid person in the organisation. The Review will produce an interim report in the autumn, with a final report to the Prime Minister and the Chancellor in March 2011. (21 June 2010)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont. ^back to the top
R (Harris) v Haringey LBC; Grainger Seven Sisters Ltd and
Northumberland and Durham Property Trust Ltd (Interested Parties);
Equality and Human Rights Commission (Intervener) [2010] EWCA Civ
703 (CA): H applied to quash the council’s decision to grant
permission for the development of a site that was in an area
predominantly made up of local independent traders with a mix of
Turkish, Cypriot, Colombian and Afro-Caribbean influences. The
site also incorporated an indoor market, and 64 per cent of
the stallholders were from Latin America or were Spanish speaking.
During the consultation process, a number of individuals expressed
concern at the increase to business rents that would have been
charged following the redevelopment. The council itself estimated
they would have risen threefold. There were also concerns about the
cost of the residential part of the development.
The court held, granting the application, that the council, when
granting permission, had not met its duties under s. 71 of the Race
Relations Act 1976 which required the council, in taking its
decision, to have due regard to the need to eliminate unlawful
racial discrimination, and to promote quality of opportunity and
good relations between persons of different racial groups. The
council's policies might have been admirable in terms of proposing
assistance for ethnic minority communities, but they did not
address specifically the requirements imposed upon the local
authority by s.71(1): not only was there no reference to s.71 in
the report to the committee, or in the deliberations of the
committee, but the required duty in s.71 to have "due regard" for
the need to "promote equality of opportunity and good relations
between persons of different racial groups" was not demonstrated in
the decision making process. (22 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
DCLG: Leading a lean and efficient fire service: transcript of a speech given by the Fire Minister Bob Neill at the Fire and Rescue 2010 Conference, in which he talks about the Government's vision for fire and rescue services. He discusses: the economic challenge; the Government's vision; challenges facing the fire & rescue service; changes to the delivery of services; and review of the FiReControl project. (29 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
Museums, Libraries and Archives Council (MLA): Community engagement in public libraries - an evaluation as part of the Big Lottery Fund's Community Libraries programme: this report highlights emerging themes and lessons for public libraries, particularly around their role in civic engagement in local communities through volunteering, and their ability to work in partnership with voluntary and community based organisations, as well as local authorities. (1 July 2010)
MLA: Culture Minister launches support programme for libraries: announces a new support programme led by the MLA and the LGA. They will work together to support councils as they adapt to the current economic challenge, helping them to deliver the key services valued by communities while driving down costs. The programme will initially undertake intensive, proactive work with around 10 library authorities. The best learning from those projects will then be shared throughout the wider public library network so that everyone can benefit from the work. (1 July 2010)
MLA: Library users' charter: the MLA has welcomed the publication by a grouping of library users of a public Charter for Library Users, describing it as "timely and significant". The Charter is intended to influence the development of better library services for people and communities. It calls for recognition that library users and the wider public are the first and principal stakeholders in the library service. This press release includes the wording of the proposed Charter. (1 July 2010)
If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi. ^back to the top
DCLG: Pickles strips away pointless Town Hall red tape
targets: announces that the Communities Secretary has
instructed the Audit Commission and five other local inspectorates
to stop Comprehensive Area Assessment reports. Ending the CAA
process will not affect the inspectorates' statutory powers to
carry out inspections at their discretion such as when councils are
failing. The SoS is aware that scrapping CAA will not
remove all red-tape burdens so he has asked Greg Clark, Minister
for Decentralisation, to lead on further reducing the Whitehall
burden across the board.
The Audit Commission's Chief Executive has issued a statement on CAA abolition. (25 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
Home Office: Central police target abolished: announces that the public confidence target and the policing pledge are to be scrapped with immediate effect. The Home Secretary is to examine the entire top-down model of accountability, replacing it with more local control. Each force should have a directly elected person setting the force budget, agreeing local strategic targets, handling issues of community safety, and appointing local chief constables. (29 June 2010)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^back to the top
J Varney & Sons Waste Management Ltd v Hertfordshire CC [2010] EWHC 1404 (QB) (QBD): V was one of the unsuccessful tenderers for the contracts for the operation of the local authority's 18 Household Waste Recycling Centres for the five year period from 2008 to 2013. V was the incumbent operator at three sites for 2003 - 2008; it tendered for the contracts to operate 17 of the sites, but was awarded none. The invitations to tender consisted of instructions for tendering, drafts of relevant documentation and the conditions of contract, the return schedules and various appendices to the new contract. The return schedules set out the standard of service expected and were used by the local authority to assess the bids as regards customer satisfaction. V claimed damages against the local authority for breach of its obligations under the Public Contracts Regulations 2006. It claimed that the local authority:
The court held, dismissing V's claim, that the local authority was not in breach of its obligations of transparency in respect of the return schedules. The schedules were not award criteria but rather, they contained sub-criteria of the stated award criterion of customer satisfaction. Local authorities did not owe a general duty to investigate "suspect" tenders that appeared abnormally low. There was nothing in V's suggestion that the local authority should have appreciated that some of the tenders were abnormally low, and the suggestion that it was in manifest error in failing to investigate them was wholly without merit. There was no unilateral amendment of the contracts by the local authority, but even if there had been, and that that was a breach of public procurement law, it did not follow that there would have to be a competition for the new award. There was no implied contract between V and the local authority: the Regulations created their own regime imposing duties on the local authority in relation to any tender submitted, and it was therefore unnecessary to imply a contract. Obiter, in the context of procuring public contracts the local authority had no discretion or "margin of appreciation" in relation to its compliance with its obligations of equal treatment and transparency, though it did have such a margin in relation to matters of judgment or assessment. (16 June 2010)
Montpellier Estates Ltd v Leeds City Council [2010] EWHC
1543 (QB) (QBD): M's claim concerned the local authority's
procurement of a development agreement for a concert arena and
related facilities. M owned one of four sites identified by the
local authority as potentially suitable. It submitted a bid and
also expressed its concerns to the local authority that the local
authority itself would bid; the local authority assured M that
the competition would be fair and open and that it had no intention
to bid. A few months later, the local authority told M that it had
decided to terminate the competition, and on the same day it
announced that it was going to develop a site that it and a
university owned. M contended that for at least a year the local
authority had been secretly planning a public development option,
and that it was in breach of statutory duty and the implied
contract between them. M also sought an injunction preventing the
local authority from entering into any contract for the development
of the arena. The authority argued that the parts of the
particulars of claim complaining about the introduction of the
public sector comparator and the way the process was terminated
should be struck out as they fell into the trap of failing to
distinguish the duties that existed in respect of the disclosure
and application of award criteria from the less onerous duty that
arose in relation to terminating a procurement procedure.
The court held, refusing the authority's application for
summary judgment, that there was force in the authority's argument
that a public authority had a wide discretion to terminate a
procurement process; however, on the facts it would not be right to
strike out, or grant summary relief in respect of, parts of
M's particulars of claim. M's case was not directed solely to the
circumstances of termination but to the parallel process leading to
the formulation of the local authority's alternative plan, which
had been continuing, albeit undisclosed, during the procurement
process itself. An implied contract could arise in a procurement
context even where the Public Contract Regulations
2006 applied. (24 June 2010)
DCLG: Councils pledge to raise bar on procurement: reports that the Secretary of State has co-chaired a meeting with LGA Chairman Dame Margaret Eaton to discuss how to help councils improve value for money and protect frontline services. This marks the start of a major programme to be lead by the LGA that will help identify ways councils can deliver better value for money for taxpayers, e.g. by addressing the fragmentation of local government spending to secure further savings and encouraging more collaborative working. (25 June 2010)
If you wish to discuss any of the items noted in this section please contact Susie Smith. ^back to the top
IDeA: Setting up HR shared services: this guide, produced in partnership with the Institute for Employment Studies, examines some of the key issues councils should consider when introducing shared HR services. Through combined dispersed HR administrative activities, shared services can deliver cost and quality benefits for councils. Shared services can be delivered in-house, outsourced to an external provider, or executed in partnership with another organisation. Though likely to be a focus of government public sector saving, shared services need careful design and excellent implementation. This guide presents possible options, offers the big questions to ask – for councillors and senior managers – and provides some practical suggestions on where to start. (21 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
Local Government Bill: this Bill has received its 2nd Reading in the Lords, after the Examiners decided that it was not a hybrid Bill. The purpose of the Bill is to prevent the implementation of existing proposals to revoke the Exeter and Devon (Structural Changes) Order 2010 and the Norwich and Norfolk (Structural Changes) Order 2010; and to make provision consequential on that revocation: however, it may be unnecessary following the Administrative Court's ruling that the Orders should be quashed (see above). (30 June 2010)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas. ^back to the top
Health Protection (Part 2A Orders) (Wales) Regulations 2010 (SI 2010/1544 (W.142)): these regulations, which come into force in Wales on 26 July 2010, provide for local authority applications for orders under Part 2A of the Public Health (Control of Disease) Act 1984 relating to the protection of public health. (8 June 2010)
Health Protection (Local Authority Powers) (Wales) Regulations 2010 (SI 2010/1545 (W.143)): these regulations, which come into force in Wales on 26 July 2010, confer discretionary powers on local authorities (including powers to impose restrictions and requirements) for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination which presents or could present significant harm to human health. The regulations also place an obligation on third parties who have charge or control of premises in which a dead body is located to cooperate with a local authority in a particular circumstance. (8 June 2010)
Health Protection (Notification) (Wales) Regulations 2010 (SI 2010/1546 (W.144)): these regulations, which come into force in Wales on 26 July 2010, place obligations on various persons to disclose information to specified third parties for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination. (8 June 2010)
National Assembly: Proposed Rights of Children and Young Persons (Wales) Measure: this proposed Measure imposes a duty upon the Welsh Ministers and the First Minister to have due regard to the rights and obligations in the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols when making decisions of a strategic nature about how to exercise functions which are exercisable by them. This central duty is coupled with a duty to make a children’s scheme, setting out the Welsh Ministers' arrangements for complying with the due regard duty and for identifying those decisions which are decisions of a strategic nature about how to exercise functions. Legislation Committee No.5 is undertaking Stage 1 scrutiny on the general principles of the proposed Measure. The Committee must report by 22 October 2010. (14 June 2010)
If you wish to discuss any of the items noted in this section please contact Bethan Evans. ^back to the top
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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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