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 
   Anti Social Behaviour     Licensing 
   Children's Services    Meetings 
   Economic Development    Negligence
   Education    Pensions
   Efficiency    Police Authorities
   Finance    Private Finance Initiative
   Fire Authorities     Procurement
   Bevan Brittan's Local Government Training Programme


Access to Information

ICO: Freedom of information regulatory action policy: this new policy document sets out the measures that public authorities will face if they routinely fail to meet the requirements of the Freedom of Information Act (FOIA) or the Environmental Information Regulations 2004 (EIR). It states that organisations will face action from the ICO if they regularly fail to issue a response on time, refuse to disclose information without specifying an exemption, or if they fail to respond to a request altogether. The ICO will be making more use of regulatory powers including Enforcement Notices, Undertakings and Practice Recommendations to improve compliance. Where there is evidence that a public authority is regularly or seriously failing to meet its obligations, the ICO will not hesitate to take regulatory action, particularly where organisations fail to respond to requests in a timely manner. The ICO has identified timeliness as a key target for action, in recognition that a quarter of FOIA complaints to the ICO relate, at least in part, to the time taken for public bodies to respond to requests. (21 July 2010)

Local Land Charges (Amendment) Rules 2010 (SI 2010/1812): these Rules amend SI 1977/985 by removing from Sch.3 (fees) the £22 fixed fee charged for personal searches of councils' local land charges register. The amendment is made to ensure compliance with the Environmental Information Regulations which say that examination of environmental information on site should be free of charge (27 July 2010)

DEFRA: Charging for environmental information under the Environmental Information Regulations 2004: aims to help public authorities determine whether and how they can charge for environmental information under the EIR 2004. It considers what a reasonable charge is and what can be counted in establishing what is reasonable. It explains how charging arrangements should operate. The guidance also sets out the circumstances in which access to information must be free of charge. (27 July 2010)
DEFRA has also revised parts of its detailed EIR guidance (2005) with updated Chapter 6 Handling requests for environmental information and Chapter 9 Records management and offences.

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: Moving beyond the ASBO: the Home Secretary has called for changes in how anti-social behaviour is tackled, including more local control and more freedom for police to decide how to deal with each case. (28 July 2010)

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

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Children's Services

Ofsted: Supporting young people - an evaluation of recent reforms to youth support services in 11 local areas: examines the progress made by local authorities and various youth support services to work together for young people. The report finds that  limited progress has been made in involving voluntary, community and private groups in providing youth services, and that the focus on providing services for ‘at risk’ young people risked undermining the youth activities available to all young people. (20 July 2010)

DfE: Reform of children's trusts: announces that the Government intends to amend the legislation on children's trusts by removing schools and colleges from the duty to co-operate in s.10 of the Children Act 2004, and revoke the regulations underpinning the Children and Young People’s Plan and withdraw the statutory guidance on Children’s Trusts. These changes will be introduced this Autumn. The Government also intends to remove the requirement on local authorities to set up Children’s Trust Boards, at a later stage. (22 July 2010)

Number 10: PM launches National Citizen Service pilots: announces plans for National Citizen Service pilots that are expected to provide about 10,000 places for 16 year olds to take part in activities which could include outdoor challenges and helping the local community. National Citizen Service is a key part of the Big Society agenda: it aims to give teenagers the chance to learn new skills that will help them to make a positive contribution to their community. (23 July 2010)

DfE: Early intervention - Key to giving disadvantaged children the opportunities they deserve: announces the establishment of an independent commission into early intervention, which aims to ensure that children at greatest risk of multiple disadvantage get the best start in life. The Commission will be chaired by Graham Allen MP. It will report by the end of January 2011 on the issue of best practice and provide an interim report on funding. A final report on funding will be produced by May 2011. (28 July 2010)

Ofsted: Inspection of children's homes: seeks views on proposals for a revised framework for the inspection of children’s homes that will assure the quality of services for the children and young people who live in children’s homes, and support their continuing improvement. The consultation closes on 31 October 2010. (30 July 2010)

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

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Economic Development

Regenerate Pennine Lancashire: Local enterprise works: the Local Enterprise Growth Initiative (LEGI) scheme has helped boost enterprise in deprived areas. This paper sets out the achievements of Pennine Lancashire’s “No Limits” LEGI and 19 other LEGI areas in Britain. It argues that any new approach to building a more resilient and competitive economy will need to encourage enterprise at all levels of society. (21 July 2010)

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

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Academies Act 2010: this Act has received Royal Assent. The sections on transitional provisions and pre-commencement applications came into on 27 July 2010; the remaining provisions come into force on a day (or days) to be appointed. The Act enables all maintained schools to apply to the Secretary of State to become an Academy. It is the Secretary of State’s current intention to approve all schools which have been judged ‘outstanding’ by Ofsted unless there are good reasons not to. It simplifies the process of applying to become an Academy and removes the requirement for local authorities to be consulted.  (27 July 2010).
DfE has published a list of the 153 "outstanding" schools that have applied for academy status.
Bevan Brittan is holding a seminar on the Academies Act on 9 September 2010 - see our Local Government Training Programme for details.

Children, Schools and Families Act 2010 (Commencement No. 1) Order 2010 (SI 2010/1817 (C.93): brings various provisions of the 2010 Act into force on various dates, including s.5 that enables a governing body of a maintained school to form an Academy Trust, in force 19 July 2010. (14 July 210)

DfE: Government cuts more red tape to simplify college funding: reports that the Government is simplifying the funding processes for 16-19 education. The new measures remove the need for local authorities to set up sub-regional groups and regional planning groups; instead, FE colleges, sixth form colleges and other training providers will be paid direct by the Young People’s Learning Agency, thus freeing up local authorities to focus on their strategic role. (20 July 2010)

DBIS: A simplified further education and skills funding system and methodology: this consultation examines ways in which the funding system and methodology for post-19 FE and skills can be simplified to ensure greater transparency for learners and employers and reduce burdens on FE colleges and training organisations, aiding them to deliver high quality FE and skills training.The consultation closes on 14 October 2010. (22 July 2010)

DfE: Consultation on school funding 2011-12 - Introducing a pupil premium: the Government is considering introducing a pupil premium that will provide additional funding for more disadvantaged pupils to ensure they benefit from the same opportunities as pupils from richer families. The proposed pupil premium will provide additional per pupil funding on top of the existing funding provided to schools, and schools will be free to spend the additional funding as they choose to raise the achievement of disadvantaged pupils.  This paper seeks views on  the operation of the pupil premium and the distribution of the Dedicated Schools Grant to local authorities for 2011-12. It also looks at the overall funding methodology and options for how elements of the pupil premium should operate. The consultation closes on 18 October 2010. (26 July 2010)

A v Essex CC; National Autistic Society (Intervener) [2010] UKSC 33 (Sup Ct): A suffered from autism and severe learning difficulties. He appealed against the Court of Appeal's dismissal of his claim that the local authority had breached his right to education under ECHR Protocol 1 art.2. When A was aged 12, A's parents had withdrawn him from his special needs school as the school could not cope with his behaviour. The authority could not provide a home tutor and there was an 18 month delay in finding a residential placement and in A taking up that placement. A contended that he had been deprived of even the minimum education to which he was entitled during that period. 
The Supreme Court held, dismissing his appeal, that the ECHR did not impose on contracting states a positive obligation to provide education that catered for the special needs of the small, if significant, portion of the population which could not profit from mainstream education. The obligation under Protocol 1 art.2 was limited to regulating education in such a way as to give access without discrimination to the state's education system. Failure to satisfy the educational requirements of domestic law would not automatically constitute an infringement of Protocol 1 art.2. A had not arguably been denied the very essence of his right to education. The local authority had done its utmost to have him properly appraised and thereafter to arrange residential care. Although the interim measures were arguably open to criticism, that was not the question, and their shortcomings were not a denial of A's right to education. (14 July 2010)

DfE: Response to public comments on the Coalition Agreement on schools: sets out the work that the DfE is doing regarding the schools agenda, in light of public comments on the proposals set out in The Coalition: Our Programme for Government. (30 July 2010)

DfE: Diploma costs and funding at Key Stage 4: sets out the findings from research to develop a more detailed understanding of Diploma funding models, consortia delivery costs (including a specific focus upon transport costs and practice), the scope for efficiencies, and the likely system costs out to 2013. The research was also intended to assist the DCSF in coming to a view on the funding requirement for Diplomas in 2010-11. (30 July 2010)

Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 2 (Amendment) and Transitional Provision) Order 2010 (SI 2010/1891 (C.99)): this Order amends Sch.5 to SI 2010/303 (C.25) so as to revoke the commencement of ss.246, 247, 248, 249(1) & (2) and 250 of the 2009 Act that were due to come into force on 1 September 2010. Those sections relate to: governing bodies' duties to report significant incidents and to cooperate on promoting good behaviour; the change of name of pupil referral units to “short stay schools”; and school's careers education programmes.  (26 July 2010)
Several other amending regulations have been made as a consequence of the delay in these sections coming into force:

School Governance (Transition from an Interim Executive Board) (England) Regulations 2010 (SI 2010/1918): these regulations, which come into force on 1 September 2010, concern the means by which a governing body of a maintained school makes the transition from an Interim Executive Board to a normally-constituted governing body. They revoke and replace SI 2004/530 so as to keep pace with changes made by the Education and Inspections Act 2006 concerning the intervention powers of local authorities and the Secretary of State. They also replace the existing duty on local authorities to put in place a shadow governing body with a power. This means that local authorities can determine in each individual case whether or not it is appropriate to put in place a shadow governing body or move straight to establishing a normally-constituted governing body. (30 July 2010)

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

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LG Improvement & Development: RIEPs: A summary of key achievements – two years on: summarises the collective achievements of the nine Regional Improvement and Efficiency Partnerships (RIEPs) in their first two years. RIEPs enabled local authorities to deliver £321m of efficiencies by the end of March 2010, and will deliver up to £950m savings by March 2011. (June 2010)

LG Group: Leading the way by working together: this annual report from the nine RIEPs shows that local government is ready to take more responsibility for its own improvement by working together at local, regional and national levels. It celebrates the achievements of the sector with a selection of recent case studies. (20 July 2010)

LG Group: The public service challenge - implementing the lessons from Total Place: this joint publication from the Local Government Group and the Municipal Journal highlights the lessons from the Total Place pilots. It serves to collate all the views of the Total Place participants in one source document. (19 July 2010) 

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

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DCLG: Local government finance formula grant distribution: seeks views on the practicality and technical feasibility of options for grant distribution changes that could be introduced from the 2011-12 settlement onwards. The consultation closes on 6 October 2010. (28 July 2010)

DCLG: Local referendums to veto excessive council tax increases: the Coalition Programme for Government included a commitment to give residents a veto over excessive increases in their council tax bill. This paper sets out the basic principles underpinning the proposed scheme, and seeks views on the practicality and technical feasibility of the mechanisms for triggering and holding a referendum. Under the proposals, any council that set its council tax increase above a set ceiling, approved by Parliament each year, would trigger an automatic referendum of all registered electors in their area. Residents would be asked to choose between the proposed rise and a 'shadow budget', which the council must also prepare within the defined limit. A no vote would leave councils having to refund taxpayers or give a credit at the end of the tax year. The consultation closes on 10 September 2010. (30 July 2010)

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

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Fire Authorities

DCLG: Government ends regionalisation of fire services: announces that Fire Services will no longer have to work through Regional Management Boards. Also, the Government will no longer needlessly intervene where the National Framework is not strictly adhered to. It will now only intervene in extreme cases and will instead work with the sector to look at alternative ways to support fire and rescue services. Issues which will now also be left to local decisions include equality and diversity, and workforce development. (28 July 2010)

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

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Health and Social Care

SOLACE: Health, wealth and wellbeing: this collection of essays aims to contribute to the debate about some of the major challenges and opportunities facing local government and the public sector in improving health and wellbeing in times of reducing public sector finance. Produced jointly by SOLACE and LG Improvement & Development, it draws together a range of different  perspectives to promote better understanding about the impact of economic change on public health. The articles in the first half of the pamphlet argue for, and demonstrate the importance of, local government’s role in public health, while those in the second half focus on some practical projects and initiatives to mitigate the negative health effects of the recession on health and wellbeing. (20 July 2010)

DH: Liberating the NHS: Increasing democratic legitimacy in health: this is the third in a series of specific consultations to be published in the coming weeks seeking the views of interested parties on the details of the Health White Paper's proposals. This paper sets out proposals on how patients, locally elected councillors, local authorities, public health experts and others will work side by side with GP consortia to make health services meet the needs of people in local areas and improve health outcomes. This partnership, led by local authorities, will mean services become more responsive, and developed in ways that fit around the people who use them. Patients and the public will also have a stronger voice through a new patient group, local HealthWatch - a 'citizen’s advice bureau' for health and social care. Local people from HealthWatch would also influence local plans ensuring they fit community needs. The consultation closes on 11 October 2010. (22 July 2010)

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

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Home Office: Rebalancing the Licensing Act. A consultation on empowering individuals, families and local communities to shape and determine local licensing: seeks views on plans to overhaul the current licensing regime, in order to give more power to local authorities and police. The proposals include:

  • allowing local authorities to consider the opinions of the wider community, not just those living close to premises;
  • doubling the fine to £20,000 for those found persistently selling alcohol to children;
  • charging a fee for late-night licences to pay for the cost of extra policing;
  • fully considering police and health concerns in assessing licence applications;
  • increasing licence fees so that local councils can cover costs linked to enforcement; and
  • introducing a ban on the sale of below cost alcohol.

The consultation closes on 8 September 2010. (28 July 2010)

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

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R (Friends of Hethel Ltd) v South Norfolk DC and Ecotricity [2010] EWCA Civ 894 (CA): FoH appealed against the court's refusal to quash the council's grant of planning permission to E for the erection of three wind turbines. The planning officer had recommended that permission be granted but the area planning committee voted  5-3 against the application. The Council's Constitution stated that any decision contrary to the  officer's recommendation must have a majority of at least two-thirds of the committee's members.  The application was referred to the planning committee which voted 8-7 in favour. FoH contended that the Constitution contravened the simple majority voting provisions in Sch.12 para.39(1) LGA 1972 but the judge held that the majority voting requirement was authorised by s.101 LGA 1972.
The Court of Appeal held, allowing the appeal and quashing the planning permission, that the arrangements delegating power to determine planning applications to the area committee were lawful in principle; however, they could not lawfully override Sch.12 para.39(1) and provide that a decision to grant or refuse planning permission should be decided by a two-thirds majority. (30 July 2010)

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

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Harvey v Plymouth City Council [2010] EWCA Civ 860 (CA): the local authority appealed against the judge's decision that it was liable for personal injuries sustained by H on its land. The land comprised an area of rough grass bounded by shrubs and trees with a chain link fence next to a sheer 5.5m drop down to a car parking area. The fence had been lowered to 14 inches above ground level in one place. H, aged 21, had gone onto the land one evening after he had been out drinking, and had fallen down the drop. He suffered serious injuries, including brain damage. He claimed that he was an implied licensee to whom the authority owed a duty of care under the Occupiers' Liability Act 1957. The judge held that H was the local authority's visitor in law and that the authority was in breach of its common law duty to him by not securely fencing the edge, as H's conduct could and should have been foreseen by the local authority and it should have taken steps to operate a system of inspection and maintenance of the chain fence to ensure visitors were not at risk of falling over the edge. He also found that H was 75% contributorily negligent.
The Court of Appeal held, allowing the appeal, that the judge's conclusion that at the time of the accident H was a "visitor" for the purposes of the 1957 Act, was wrong. The local authority's implied licence had not extended to what H was doing on its land and did not found liability under the Act. The duty under s.1(2) of the 1957 Act was to make premises reasonably safe for use for the purposes for which the visitor was invited or permitted by the occupier to be there and did not extend beyond the scope of activities for which the licence had been expressly or impliedly given. Even if H's conduct might have been foreseen by the local authority, foreseeability was not the relevant test. In deciding whether H was a licensee, the question was not whether his activity or similar activities might have been foreseen, but whether the local authority had impliedly consented to them. When a local authority licensed the public to use its land for recreational purposes, it was consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity could not be stretched to cover any form of activity, however reckless. (29 July 2010)

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

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Audit Commission: Local government pensions in England - An information paper: this research paper has been drafted to inform Lord Hutton's inquiry into public sector pensions. The report looks at whether the Local Government Pension Scheme (LGPS) benefits are affordable in the long run. It acknowledges that recent reforms will address some of the underlying issues, but warns that these reforms alone will not guarantee long term sustainability. It offers several ways to get the LGPS on track, but warns that the more radical suggestions may be costly in the short term. It suggests some actions that could be taken to put the LGPS on a better financial footing. (29 July 2010)

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

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Police Authorities

Home Office: Valuing the police - policing in an age of austerity: this report considers the effect of budget cuts on policing, and in particular the impact on sustaining the number of police who are visible and available to the public. (20 July 2010)

Audit Commission: Sustaining value for money in the police service: this report finds that the police in England and Wales could save up to £1bn (12% of central government funding) without reducing police availability. The report outlines where savings can be made, the impact on the police and public, and the likely impact of any further cuts.  
The Audit Commission has also published three case studies that police authorities can use to compare their own practice with the transformational approaches used by some forces and authorities to sustain savings and protect priority services. (20 July 2010)

Home Office: Policing in the 21st century - reconnecting police and the people: seeks views on plans to to change the face of policing and re-establish the link between the police and the public, tackle organised crime and protect the UK's borders. It sets out how the police service in England and Wales will become more accountable to the public and responsive to local people, more focused at a national level and more effective at tackling crime, as well as providing better value for money. Key elements of the new strategy include:

  • police authorities to be abolished and replaced with directly elected Police and Crime Commissioners  who will hold forces to account, and in turn be directly accountable to the public. The first election will be in May 2012;
  • greater collaboration between police forces to increase public protection and drive savings;
  • a clear role for everyone, including members of the public, in cutting crime through beat meetings, neighbourhood watch schemes and voluntary groups.
  • Many of the proposals will feature in the Police Reform and Social Responsibility Bill, to be published in the Autumn. The consultation closes on 20 September 2010. (26 July 2010)

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

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Private Finance Initiative (PFI)

National Audit Office: Financing PFI projects in the credit crisis and the Treasury's response: this report concludes that by introducing an Infrastructure Finance Unit, the Treasury helped reactivate the market and prevent the stalling of many government projects. During 2009, the cost of finance built into the PFI programmes at that time was value for money, but there is no guarantee that it will remain that way. Now that the market is providing finance again, it recommends that a thorough project by project review of the forward programme to apply more exacting and narrower criteria than applied to projects at the height of the crisis. (27 July 2010)

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

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National Audit Office: Reducing the cost of procuring Fire and Recue service vehicles and specialist equipment: this report critically examines Firebuy, a specialist body established by DCLG to support procurement of kit by Fire and Rescue Services. The report finds that Firebuy has cost nearly twice as much to set up and run as the total savings it claims to have delivered. Without the power to make local Fire and Rescue Services use its national procurement contracts, Firebuy has had to rely on persuasion; progress has therefore been slow with only five out of the 14 framework contracts it has set up being used by more than half of Fire and Rescue Services to purchase equipment. The report concludes that Firebuy is expensive to run, with overheads between 5-10% higher than the industry norm. DCLG has not shown enough leadership, direction or oversight of Firebuy to ensure it achieved its original objectives, most of which were not monitored and many were not met. It recommends that DCLG quickly assess whether to continue with a nationally directed central procurement body and, if so, to change the way Firebuy operates, or to transfer its operations to another professional buying body or a Fire and Rescue Service. (23 July 2010)

OGC: A guide to buying through framework agreements: this guide provides an overview of the considerations for using framework agreements and how to buy from them. It focuses primarily on the process of calling off from an already established multi-user framework agreement, but many of the principles apply equally to single-user framework agreements. The guide has been written with the assumption that, unless otherwise stated, the full scope of the EU Procurement Rules apply. (30 July 2010)
OGC has also issued new Procurement Policy Notes on:

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

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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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