Authority Update

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in thetwo weeksup to16 July 2010. Items are set out by subject, with a link to where the full document can be found on the internet.


Claire Booth

Claire Booth

Professional Support Lawyer

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    Health and Social Care  
   Adult Social Services    Highways
   Democracy    Members
   Deregulation    Performance
   Economic Development    Regulatory Services
   Education    Social Enterprise
   Efficiency    Wales
   Governance     Waste Services 
   Bevan Brittan's Local Government Training Programme


Access to Information

MoJ: Call for evidence on the data protection legislative framework: the MoJ is asking for views on how the European Data Protection Directive 95/46 and the Data Protection Act 1998 are working, the impact of data protection on individuals and business, and whether the current powers and penalties of the Information Commissioner could be strengthened. This comes ahead of the negotiations on a new EU data protection instrument. This is not a formal consultation but an evidence gathering exercise. Submissions must be made by 6 October 2010. (6 July 2010)

MoJ: Plans to reform defamation law announced: announces that the Government intends to publish a draft Defamation Bill in early 2011, with a view to introducing a Bill as soon after that as parliamentary time allows. The draft Bill will reform the law on defamation by ensuring that a right and a fair balance is struck between freedom of expression and the protection of reputation. (9 July 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

LG Improvement and Development: Ageing well: the Ageing Well programme is part of the Government’s desire to shift power from Westminster to local people and their communities. The programme will encourage local authorities to take the lead and to work in partnership with other local organisations, and so help develop imaginative approaches to the issues faced in their particular community. An essential aspect of the programme is helping local authorities to improve efficiency while maintaining quality services. It provides local authorities with ready access to a wealth of evidenced good practice, peer challenge, support and leading edge innovation. (13 July 2010)

DH: Direct payments for health care - information for pilot sites: personal healthcare budgets allow local NHS trusts to put individuals in control of how, where and from whom they receive their healthcare, in partnership with the local NHS, and direct payments allow PCTs to pay the personal budget directly into the patient’s bank account either as a monthly sum or as a one off payment for a piece of equipment.  This guidance on the National Health Service (Direct Payments) Regulations 2010, which govern direct payments in healthcare, gives advice to help the pilots meet the regulatory requirements. Although aimed at PCTs, it may also be of interest to local authorities and providers.
The DH has also announced £4m funding to support the personal health budget pilot sites in setting up and running their pilot schemes.(15 July 2010)

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

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DCLG: Draft Structural Reform Plan: sets out the Department's five priority actions for making localism and the Big Society part of everyday life by: decentralising power as far as possible; meeting people's housing aspirations; putting communities in charge of planning; increasing accountability; and letting people see how their money is being spent. It gives the timescale for the introduction of the reforms over the next 18 months, most of which will be contained in the proposed Localism Bill that will be published in November. (8 July 2010)

LGA: Who's in charge? - Decision miles: considers research that counted the number of “decision miles” needed to solve everyday problems facing local people and the councillors who represent them. It argues that taking decisions hundreds of miles from the people that they affect cannot be the right way to ensure that people’s voices are heard, as it adds layers of bureaucracy and cost, puts processes before people and removes the influence people, and their elected representatives have over decisions. (8 July 2010)

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

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DCLG: Eric Pickles unveils radical plan for town halls to help cut red tape: the Communities Secretary has launched plans to banish nonsense red tape and repeal unnecessary laws. He has invited all council staff and sector experts to suggest DCLG sponsored statutory guidance, secondary legislation or regulations they think should be removed so that councils can get on with their job. This follows the commitment in the Coalition Programme to give the public the opportunity to challenge the worst regulations and to introducing a 'one-in, one-out' rule whereby no new regulation is brought in without another regulation being cut by a greater amount; and 'sunset clauses' will ensure that regulation is regularly reviewed. DCLG has issued a list of secondary legislation being considered for revocation. (7 July 2010)

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

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Economic Development

DCLG: Eric Pickles puts stop to flawed Regional Strategies: announces that an Order has been laid in Parliament that revokes Regional Strategies and their housebuilding targets with immediate effect. In their place, the Government is to introduce new incentives for local people so they support the construction of new homes in the right places and receive direct rewards from the proceeds of growth to improve their local area. The Communities Secretary also pledged that direct and substantial benefits for councils who support construction would be the centrepiece of this restoration of local power.
There is also guidance for local authorities that sets out some ‘questions and answer’ advice on immediate issues that may arise from this announcement. (6 July 2010)

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

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DfE: Overhaul of England's school building programme: the Education Secretary has set out a complete overhaul of capital investment in England’s schools. The BSF programme is to be brought to an end - 715 schools will no longer be rebuilt or refurbished through BSF and 123 academy projects in development which have not reached financial close will be reviewed on a case-by-case basis. 14 cases, prioritised locally as 'sample' projects (the first taken forward in the area) will be reviewed on a case-by-case basis in recognition of local need as, although financial close has not been reached, very significant work has been undertaken to the point of appointing a preferred bidder at 'close of dialogue'. There will be a comprehensive review of all capital investment in schools, early years, colleges and sixth forms, led by Sebastian James, Group Operations Director of DSG International plc, that will guide future spending decisions over the next Spending Review period (2011-12 to 2014-15). It will look at how best to meet parental demand, make current design and procurement cost-effective and efficient, and overhaul how capital is allocated and targeted.
The DfE has issued a table showing the impact of the announcement for all BSF projects. (5 July 2010, revised 12 July 2010)
Bevan Brittan LLP has produced an Authority Alert: Capital investment cuts – the legal options that considers the legal issues that may arise from wider cuts to capital schemes, the impact of requirements or decisions to suspend, rescope or terminate any such projects and actions that authorities should consider taking.

LGA: Local freedom or central control?: sets out the LGA's proposals for a new role for councils, as local commissioners of education provision in their areas. It proposes a series of principles to explain why the education system cannot be run from the centre, including:

  • there needs to be a body to oversee how resources are managed across an area;
  • improving the standards of education offered to children cannot just be left to competition between providers; and 
  • education cannot be provided in isolation from other services that children and young people need.

 (7 July 2010)

Audit Commission: Against the odds  - Re-engaging young people in education, employment or training: presents the findings of study into the financial, personal and social cost of teenagers who are NEET - not in education, employment or training. The study found that the problem may be worse than the annual 'snapshot' survey shows, but that a new approach can make scarce resources work harder for those at greatest risk. Alongside the report, the Commission has also published:

(7 July 2010)

DfE: The schools system - draft Structural Reform Plan:  this SRP sets out the timescale for the DfE's proposed reforms of the schools system over the next 18 months. It includes:

  • the timetable for the academies and free schools programme;
  • a new pupil premium for disadvantaged pupils del and eligibility criteria published November 2010, to be introduced in Sept 2011;  and
  • proposals to reduce bureaucracy on schools by removing guidance and policies.

 (8 July 2010)

Academies Bill: this Bill has now completed its passage through the Lords and passed to the Commons. It is scheduled to have its 2nd Reading on 19 July 2010. (13 July 2010)
Bevan Brittan LLP have produced an Academies Issues Paper for local authorities that discusses key issues which should be addressed by any council which may have a school seeking to follow the fast track process.

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

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LGA: Place-based budgets - the future governance of local public services: this report proposes a shift in accountability which would make local public services genuinely local both in the way funding is allocated, and decisions about services are made and accounted for. Building on experience of what works and what doesn't, particularly Total Place, it sets out a model for place-based budgeting. It calls for a once-in-a-generation programme of change to strip out the plethora of funding streams, accountability regimes, ring-fenced budgets, quangos and funding bodies, that could release savings of up to £100bn over five years. (6 July 2010)

HM Treasury: The Chancellor launches the Spending Challenge: announces that George Osborne is asking the public to send in their very best ideas on how to get more for less from public services, and to tell the Government what they think about the ideas that are put forward. Ideas should be submitted to the Spending Challenge website during July and August. The ideas generated will inform the decisions taken on the allocation of money between Government departments over the next four years. The Spending Review, which will set out how much each Department will have to spend, will be published on 20 October 2010.  (9 July 2010)

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

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DCLG: Requirement to consult under the Local Government and Public Involvement in Health Act 2007: the Local Government Minister has written to district council leaders highlighting their freedom to take a light touch approach to consultations regarding proposed changes to their governance model from May 2011. It states that a small newspaper advert/article or press release on the council's website may be proportionate and right in these circumstances. The letter also confirms the Government's commitments: to allow councils to return to the committee system, should they wish to; on elected mayors: and to remove the necessity to elect a leader for four years. These commitments will be dealt with in the Localism Bill to be introduced later in this Parliamentary session. This may mean that any governance model that district councils adopt in May 2011 may be further changed within a year or so. (7 July 2010)

Local Government Boundary Commssion: Requests for related alterations following Community Governance Reviews: the Local Government Boundary Commission (LGBC) now has responsibility for alterations to ward or division boundaries following the completion of a Community Governance Review. This note advises local authorities that unless requests for such alterations have been made by 1 October 2010, the LGBC cannot guarantee that any order will be made in time for implementation in elections in May 2011. It also gives details of the supporting information that is required when making a request for related alterations. (15 July 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

DH: Equity and excellence - liberating the NHS: Health White Paper: this paper sets out the Government's plans to reform the NHS during this Parliament and for the long-term. It details how power will be devolved from Whitehall to patients and professionals. The proposals include:

  • groups of GPs ("consortia") will be given freedom and responsibility for commissioning care for their local communities;
  • local authorities to have strategic function of joining up the commissioning of local NHS services, social care and health improvement, with new statutory Health and Wellbeing Boards set up within local authorities or existing strategic partnerships, replacing the current Health Overview and Scrutiny Committees;
  • PCTs’ health improvement functions to be transferred to local authorities, with a ring-fenced public health budget managed by the Director of Public Health jointly appointed by local authorities and the Public Health Service. More details will follow in a Public Health White Paper, to be issued in late 2010 ;
  • SHAs and PCTs will be phased out;
  • Local HealthWatch will take over from Local Improvement Networks (LINKs), funded by and accountable to local authorities. They will provide advocacy and support for complaints, and help with access to and choices about services;
  • a Commission on the funding of long term care and support will be established, to report by July 2011. The Government will publish its vision for adult social care in November 2010, followed by White Paper in October 2011, with legislation in the 2011/2012 Parliamentary session establishing a sustainable legal and financial framework for adult social care.

The LGA has issued a briefing for councils detailing its position on the White Paper.
The DH's draft Structural Reform Plan sets out the timetable for the reforms over the next four years. Sir David Nicholson has written to the CEOs of all stakeholder bodies (including local authorities) setting out his plans to lead the implementation of the Health White Paper. His letter provides a framework within which SHAs can lead this process regionally, and sets out some initial actions that commissioners and providers need to take as part of their state of readiness for 2012. (12 July 2010)

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

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Snow Clearance Bill: this Private Member's Bill, introduced into the House of Commons by Peter Bone, has received its 1st Reading. The Bill provides immunity from prosecution or civil action for persons who have removed or attempted to remove snow from public places. The 2nd Reading is scheduled for 12 November 2010. (5 July 2010)

Yetkin v Newham LBC [2010] EWCA Civ 776 (CA): Y claimed damages for personal injuries sustained when she was struck by a car while crossing a dual carriageway at a pedestrian crossing. Y had set off across the road before the lights had changed in her favour, and her view was restricted by shrubs planted along the central reservation that had grown tall and thick. The judge dismissed Y's claim against the motorist, finding  that the shrubs had seriously interfered with Y's view of the road and that they had contributed significantly to the accident. He stated that Gorringe v Calderdale MBC [2004] UKHL 15 imposed additional requirements on a claimant bringing a common law claim against a highway authority for creating a hazard on the highway and so decided that the local authority had not owed Y a duty of care.
The court held, allowing Y's appeal, that the judge had taken passages from Gorringe out of context and consequently misunderstood them. The House of Lords' decision had not intended to suggest that where a highway authority was alleged to have created a danger, the danger had to amount to an enticement, nor did it mean that a claimant had to show that he had been trapped into danger. Gorringe imposed no such additional requirements as the judge had thought existed. The local authority had owed a duty to all road users, whether careful or negligent, to use reasonable care in exercising its powers when it created and maintained the crossing. Planting shrubs in the reservation was a reasonable exercise of the authority's powers but to plant shrubs that grew so large as to obscure the view and then not to trim them was a negligent exercise of those powers. The local authority had owed a duty of care to Y and that duty had been breached. However, when a pedestrian decided to cross a three lane highway in this way he or she accepted a high degree of responsibility to ensure that it was safe to do so. Y was therefore 75% to blame for her misfortune as she took the decision to cross the three lane highway without waiting for the lights to change in her favour. (13 July 2010)

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

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DCLG: Time to stop the councillor pay hikes at time of public pay freeze: the Local Government Minister Grant Shapps is calling on councillors to freeze their allowances in line with public sector workers. (12 July 2010)

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

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New Local Government Network: Making sense of entitlement - improving public services without performance guarantees: this paper argues that the use of entitlements and guarantees to citizens replicates many of the problems of traditional performance targets and restricts the ability of services to focus on the needs of their local communities. It concludes that users would benefit and better outcomes could be achieved more efficiently if public services were subject to less central instruction, as long as the necessary safeguards of transparency, scrutiny and accountability to local citizens are in place. (16 June 2010)

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

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Regulatory Services

HSE: Letter from joint chairs of Health and Safety Executive Local Authority Enforcement Liaison Committee to Directors of Environmental Health / Chief Environmental Health Officers: provides an update on how councils can improve health and public protection by helping local businesses through the delivery of health and safety regulation. It includes details of what is expected from every council by March 2011. (14 July 2010)

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

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Social Enterprise

Public Services (Social Enterprise and Social Value) Bill: this Private Member's Bill, introduced into the House of Commons by Chris White, has received its 1st Reading. The Bill requires the Secretary of State and local authorities: to publish strategies in connection with promoting social enterprise; to enable communities to participate in the formulation and implementation of those strategies; and to require that public sector contracts include provisions relating to social outcomes and social value. The 2nd Reading is scheduled for 19 November 2010. (30 June 2010)

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

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National Assembly for Wales: Draft Local Government (Wales) Measure: this draft Measure has been introduced into the National Assembly. It makes changes intended to strengthen the structures and working of local government in Wales at all levels and to ensure that local councils reach out to and engage with all sectors of the communities they serve. It includes provisions:

  • enabling the review and improvement of the governance structures introduced through the Local Government Act 2000 so that they better suit the circumstances of local government in Wales;
  • developing and strengthening the role of community councils in Wales, including enabling them to deliver a wider range of services and actions locally as well as to increase the effectiveness of their representational role and their ability to work in partnership with other bodies;
  • enhancing the role of non-executive local authority councillors in the scrutiny of local services; and
  • allowing the Welsh Ministers to issue statutory guidance on collaboration between local authorities, and between them and other bodies.

  • The provisions are very wide-ranging: they partly copy the 2007 and 2009 Acts in England but with substantial alteration, and partly branch out in new directions. (12 July 2010)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

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Waste Services

DEFRA: Localism Bill to be used to end trial "pay as you throw" schemes: announces that the Government intends to introduce provisions to the Localism Bill, to be published this Autumn, that will amend the Climate Change Act 2008 so as to remove the powers that allow local authorities to pilot waste reduction schemes.  (16 July 2010)

If you wish to discuss any of the items noted in this section please contact Christopher Jarman

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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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