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     Equality
   Adult Social Services    Finance
   Arm's Length Bodies    Fraud
   Children's Services     Housing
   Community Engagement    Libel
   Economic Development    Libraries and Museums
   Education    Wales
   Bevan Brittan's Local Government Training Programme


Access to Information

Veolia ES Nottinghamshire Ltd v Nottinghamshire CC; (1) Dowen (2) Audit Commission (Interested Parties) [2010] EWCA Civ 1214 (CA): this case concerned the disclosure of commercial confidential information under s.15(1) of the Audit Commission Act 1998.
D, a local elector, applied to the Council to exercise his right to inspect under s.15(1)and take copies of all books, deeds, contracts, bills, vouchers and receipts relating to waste management in the Council’s area, including the schedules to the contract made between V and the Council and V’s monthly invoices for work done under the contract. V applied for an injunction to prevent the council disclosing the documents, claiming that they did not fall within s.15(1), and also that they had been supplied to the council on a confidential basis. The High Court judge held that D was entitled to inspect and make copies of the contract documents as they were related to the council’s accounts to be audited, and that that right overrode any express confidentiality obligations in the contract. V appealed, arguing additionally that s.15(1) had to be read down so as to exclude confidential information protected by the ECHR 1950 and/or the Public Procurement Directive 2004/18, and that the public inspection provisions of the 1998 Act only permitted use of the disclosed information for the purposes of an audit under the Act.
The Court of Appeal held, allowing the appeal in part, that the disputed documents were "relating to" the Council's "accounts to be audited" and so D was entitled to inspect them and make copies under s.15(1). Regarding the issue of confidentiality, ECHR Protocol 1 art.1, and possibly also art.8, provided sufficient reason to read down s.15(1) so as to make an exception for confidential information, subject to the public interest justification test. Any protection provided by the Public Procurement Directive 2004/18 would involve a similar balancing exercise. As to whether D could put the disputed documents to a use outside the purposes of the audit, he could not - access did not mean use for any purpose. However, the court would not spell out any implied statutory restriction on the use of information obtained under s.15(1) as there were many ways in which an interested person might seek to deploy such information and the lawfulness of such conduct should be decided on the facts of each case in private law where a claimant sought to restrain the use of the information, rather than in the abstract by reference to a general implied formula. (29 October 2010)

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

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Adult Social Services

DH: Contracting for support to Local Involvement Networks in 2011-2012 - supporting the possible transition to Local HealthWatch: the NHS White Paper ‘Equity and excellence: Liberating the NHS’ sets out the Government’s vision for transforming health and social care. It includes proposals to create local HealthWatch organisations that would retain existing LINks’ responsibilities and have additional functions. The statutory framework for HealthWatch is likely to be included in the forthcoming Health Bill and the aim is that local HealthWatch will be in place by 2012. Local authorities will have a vital role in ensuring local HealthWatch organisations are supported and successful, but in the meantime they still have a responsibility to commission support to LINks during 2011/12, as set out in the Local Government and Public Involvement in Health Act 2007. This letter from Paul Streets, Director of Public and Patient Engagement and Experience, sets out some points which local authorities may wish to consider in relation to contracting support in 2011-2012. (27 October 2010)

DH: The Personal Care at Home Act 2010 and charging for re-ablement (LAC (DH) (2010) 6): this circular advises local authorities of the legal position on charging for re-ablement and the development of re-ablement services with the £70m allocation via the NHS in 2010/11 in support of post hospital discharge. It also confirms that the Personal Care at Home Act will not be implemented. The circular cancels LAC(2010)1  with effect from 1 October 2011, and LASSL(2010)1 with immediate effect. (28 October 2010)

Audit Commission: Financial management of personal budgets - challenges and opportunities for councils: this report, which is aimed at finance staff and staff in adult social services, examines personal budgets in adult social care and considers the financial management and governance implications for councils. It reviews the approaches to transition from providing services to providing personal budgets, the choices for allocating money, and how councils can plan for the financial implications. It also considers changes in social care commissioning and the governance arrangements needed for personal budgets. (28 October 2010)

DH: Amendment to paragraph 119 of the Guidance on Direct Payments 2009: the 2009 guidance aims to assist local councils in making, managing and administering direct payments. This update notes changes made in the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) (Amendment) Regulations 2010 that extend direct payments to previously excluded groups. (29 October 2010)

DH: Fairer contributions guidance 2010 - calculating an individual's contribution to their personal budget: guidance for councils in England to use when determining what contribution, if any, a person receiving a personal budget should make towards it. It amends the 2009 guidance to reflect legislative changes in relation to charging for temporary residential accommodation. (2 November 2010)

DH: Bringing adult social care workers into the Big Society: the Health Secretary has set out plans to pilot Social Work Practices for adult social care. These are organisations led by social workers but independent of the local authority that discharge the local authority's statutory duties and responsibilities in relation to a specified group of adults. He also announced funding for re-ablement services in 2011/12, and launched plans for trailblazer sites for Health and Wellbeing Boards. (5 November 2010)

R (McDonald) v Kensington & Chelsea RLBC [2010] EWCA Civ 1109 (CA): M applied for judicial review of the local authority's decision to reduce funding for her care. M had limited mobility and suffered from a bladder condition which required her to urinate during the night. The local authority provided an interim care package including a night-time carer to help her access a commode. A needs assessment in July 2008 stated that M's need was for assistance to use the commode. In October 2008, the local authority decided that M's needs could be met by providing incontinence pads to use at night rather than a carer, and it decided to reduce the funding for her care accordingly. A subsequent care plan review concluded that providing pads was appropriate and stated that there would be no change to the services provided. M contended that the authority's decision was inconsistent with her assessed need for assistance at night to use the commode, and that the local authority's failure breached her rights under art.8 ECHR and was in breach of its duty under the Disability Discrimination Act 1995.
The court held, granting the application in part, that the local authority had been in breach of duty in deciding not to provide means to meet the assessed need of assistance to access the commode at night. However, the later review was to be read as including a reassessment of M's needs, which it expressed in a more general way, and so the local authority had been in breach of duty from the date of its decision to reduce M's funding until it carried out the care plan review but not after that point. There had been no breach of either human rights or DDA duties: taking into account resources and M's safety, independence and privacy, any policy or practice had been justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources. (13 October 2010)

R (Savva) v Kensington & Chelsea RLBC [2010] EWCA Civ 1209 (CA): S, who was disabled and had health problems, applied for judicial review of the local authority's decision to provide her with a personal budget of £170.45 pw under s.2 of the Chronically Sick and Disabled Persons Act 1970. When reaching that decision, the local authority had first produced indicative budget figures using a resource allocation system derived from a model suggested in DH guidelines. The judge quashed the decision on the basis of failure to give reasons but rejected S's argument that the method of calculation had been unlawful. S appealed, arguing that the local authority had not been entitled to use relative needs as the starting point for calculating her budget, because s.2 of the 1970 Act and reg.14 of the Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2009 required her eligible needs to be met in absolute terms.
The court held, dismissing S's appeal, that the use of the resource allocation system had been lawful as it was clear that the system had only been used as a starting point. The local authority had never lost sight of the fact that, once S's eligible needs had been assessed, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. The judge had been right that fairness required the provision of reasons: when a local authority converted an established right into a sum of money, the recipient was entitled to be told how the sum had been calculated. It was not sufficient that S had had an opportunity to seek an explanation after receiving the decision letter through meetings with her social worker or support broker - it was for the panel to provide the reasons in a document. (28 October 2010)

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

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Arm's Length Bodies

Public Bodies Bill: this Bill has been introduced into the House of Lords and received its 1st Reading. It enables the announced reforms to quangos to be implemented where legislation is needed. The Bill is an enabling bill, i.e. it will not itself make any changes to public bodies; instead, it: 

  • creates a legal framework that will enable Government departments to implement the majority of public bodies reforms that require legislation and that are not already covered in other departmental bills; 
  • creates legislative powers which give ministers the ability to abolish or merge bodies, modify a body's constitutional or funding arrangements, or transfer its functions elsewhere; and  
  • gives Secretaries of State the necessary powers to take forward changes to their bodies in secondary legislation when they are ready to do so.

The schedules include a list of a number of public bodies which were part of the review process and which would need legislation to make any reforms to them in the future, including bodies for which there are no plans to reform. This is to ensure that, if the Government wishes to make changes to these bodies in the future following further review processes, the necessary legal framework will already be in place.  The 2nd reading is scheduled for 9 November 2010. (28 October 2010) 

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

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Children's Services

DfE:  Peter Connelly Serious Case Review reports published: the Government has published the two Serious Case Review (SCR) overview reports into the tragic death of Peter Connelly in Haringey, in order to highlight genuine lessons to be learned, enable the identification of everyone's roles and shared responsibilities, and improve transparency in the child protection system. The overview reports are published in full, apart from the redaction of information and anonymisation to protect the privacy and welfare of vulnerable children and their families. (26 October 2010)

Care Leavers (England) Regulations 2010 (SI 2010/2571): these regulations, which come into force on 1 April 2011, provide for advice, assistance and support from local authorities to children and young people aged 16 and over who are no longer “looked after” children. The Regulations set out how local authorities must carry out an assessment of the needs of these young people, and prepare a pathway plan; they also prescribe the functions of the appointed personal advisers. They revoke, and in part replace with amendment, the Children (Leaving Care) (England) Regulations 2001. (25 October 2010).

DfE: The Children Act 1989 Guidance and Regulations - Volume 3: Planning transition to adulthood for care leavers: revised statutory guidance to local authorities on the Care Leavers (England) Regulations 2010. It aims to ensure that care leavers are given the same level of care and support that their peers would expect from a reasonable parent and that they are provided with the opportunities and chances needed to help them move successfully to adulthood. (28 October 2010)

Ofsted: Framework for the inspection of local authority private fostering services: sets out the statutory basis for inspection and summarises the main features of these inspections carried out under the Education and Inspections Act 2006. (25 October 2010)

DfE: More freedom and flexibility - a new approach for Children’s Trust Boards, children and young people’s plans, and the ‘duty to cooperate’: summarises the Government's proposed changes to Children's Trust Boards, the CYPP and the duty to co-operate. The changes will be set out in the forthcoming Education Bill. (3 November 2010)
The DfE has also published Q&As on the new approach to Children's Trust Boards.

Ofsted: Improving outcomes for children and young people through partnership in Children's Trusts: sets out the findings of a small-scale survey of six local authorities that evaluated the impact of Children’s Trusts on improving the lives of children and young people, particularly those whose circumstances made them potentially vulnerable. It finds that strong partnership working across agencies, led by highly effective leaders with commitment and drive, can bring real change and improvement for children and young people in their area. The report identifies best practice and provides detailed case studies of effective partnership work within the six Children’s Trusts. (3 November 2010)

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

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Community Engagement

DCLG: Voluntary sector at the heart of public service reform: reports on a No.11 Downing Street summit between Ministers and voluntary sector leaders that discussed plans for a Green Paper on creating a level playing field for charities, voluntary groups and social enterprises to bid for public service contracts. The Decentralisation Minister confirmed that the Localism Bill will devolve power from the centre, empowering people and organisations to challenge the way local services are being delivered and to offer a better, more cost effective alternative. Ministers also stated that social enterprises will be able to access the £1.4bn Regional Growth Fund. (3 November 2010)

Office for Civil Society: Better together - Preparing for local spending cuts to the voluntary, community and social enterprise sector: highlights examples of how local authorities can successfully work with charities, voluntary groups and social enterprises to manage the impact of public spending cuts. The case studies provide examples of actions which have supported a collaborative and strategic approach to current and future reductions in local government spending. They aim to help local authorities when making funding decisions. (3 November 2010) 
The Minister for Civil Society has also announced a new £100m fund to help charities, voluntary groups and social enterprises that are most vulnerable to public spending cuts. The Transition Fund will be opened at the end of November 2010 and will be managed by BIG Fund. (5 November 2010)

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

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Economic Development

DBIS: Local growth - realising every place's potential: this White Paper sets out the Government’s role in empowering locally driven growth, encouraging business investment and promoting economic development. It focuses on three key themes:

  • Shifting power to local communities and businesses: abolishing RDAs and establishing Local Enterprise Partnerships (LEPs);  
  • Increasing confidence to invest: through the fundamental reform and streamlining of the national planning framework, new Right-to-Build powers for communities, and Tax Increment Financing to enable councils to borrow against future additional business rates; and
  • Focused investment, by tackling barriers to growth that the market will not address itself: the new Regional Growth Fund is now open to bids from all places – the first round of bidding closes on 21 January 2011.

The first phase of 24 LEPs is now open for bids - more details are in the press release. (28 October 2010)
We have published an Alert that summarises the key issues and discusses their implications for local authorities: Authority Alert: A New Approach to Local Growth.

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

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Commission for Rural Communities: Small schools, big communities: this report highlights the importance of the extended services agenda for children and families living in rural areas. It also shows the crucial significance of schools to rural communities and their role in creating an inclusive or Big Society.  (27 October 2010)

Education (Publication of Proposals) (Sixth Form College Corporations) (England) Regulations 2010 (SI 2010/2609): these regulations, which come into force on 24 November 2010, prescribe the timing, manner and content of local authorities' proposals to the Secretary of State for the establishment or dissolution of sixth form college corporations. (2 November 2010)

DfE: Improving underperforming schools and the Academies programme: the Education Secretary Michael Gove has written to local authorities about their "central role" in identifying underperforming schools that would benefit from becoming academies. he also announces the ending of statutory requirements on local authorities to set and then police a whole range of externally imposed performance targets on schools and Early Years settings. In addition, the Schools White Paper will include new tougher performance standards that will apply from January 2011. (4 November 2010)

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

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Equality and Human Rights Commission: Draft Code of Practice on further and higher education: seeks views on draft guidance on  the application of the new statutory provisions in the Equality Act 2010 to further and higher education providers in relation to provision of education and access to benefits, facilities or services. The consultation closes on 31 December 2010. (1 October 2010)

DCLG: Councils free to raise £250m for underpaid workers: announces that the Government is issuing a total of £250m in directions for equal pay back-pay to 21 authorities for 2010-11. This will enable those councils to borrow against or sell assets in this financial year to settle their equal pay commitments. (27 October 2010)

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

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Revenue Support Grant (Specified Body) (England) Regulations 2010 (SI 2010/2568): these regulations, which come into force on 15 November 2010, amends the list of bodies specified in SI 1992/89 (as amended) for the purpose of receipt of Revenue Support Grant (RSG) by removing all previously specified bodies apart from the Improvement and Development Agency for Local Government (trading as Local Government Improvement and Development (LGID)). The effect is that LGID is the only body providing services for local authorities to whom RSG must be paid. (25 October 2010)

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

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Audit Commission: Protecting the public purse - fighting fraud against local government and local taxpayers: this report describes what has happened in the field of fraud detection and prevention since 2009 and set out the findings from the Commission's recent fraud survey. It identifies more fraud risks and also describes the action taken by some councils to tackle fraud, with links to tools to help councils improve their counter-fraud defences. The updated checklist gives organisations providing public services another opportunity to consider how effective they are at responding to the risk of fraud. (27 October 2010)

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

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Manchester City Council v Pinnock [2010] UKSC 45 (Sup Ct): the issue in this case was whether, before making an order for possession of a person's home pursuant to a claim made by a local authority or other public authority, the court should be able to consider the proportionality of evicting that person from his home under art.8 ECHR and, in the process of doing so, resolve any relevant factual disputes between the parties; and if so, whether the demoted tenancy regime under the Housing Act 1996 was compatible with the ECHR.
P was a secure tenant; the local authority obtained a demotion order following serious allegations against P's partner and children. The authority then sought possession on the basis of further alleged anti-social behaviour by P's sons. P stated that a possession order would violate his rights under art.8 ECHR. The county court granted a possession order and the CA upheld it, considering that the courts' role did not extend to considering whether art.8 had been complied with.
The Supreme Court held, dismissing P's appeal, that if UK law was to be compatible with art.8, where a court was asked to make an order for possession of a person's home at the suit of a local authority, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant factual dispute. It was unsafe only to consider proportionality in exceptional cases: the question was always whether the eviction was a proportionate means of achieving a legitimate aim. Where the court was asked to make a possession order against a demoted tenant, it was required by art.8 to consider proportionality, so s.143D(2)  of the Housing Act 1996 had to be read as not excluding its power to do so. It was open to a demoted tenant to challenge the local authority's decision on the ground that it was disproportionate under art.8, and case law required the court considering such a challenge to have the power to assess any relevant facts. Accordingly, the court's traditional review powers should be expanded to permit it to carry out that exercise. On the facts, it had been proportionate to make the order against P. (3 November 2010)

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

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McLaughlin v Lambeth LBC [2010] EWHC 2726 (QBD): the local authority and K, its Chief Internal Auditor, applied for an order striking out M's claims alleging libel. M was the headteacher and governor of a primary school within the local authority's area. M and other governors of the school alleged that three emails sent by K, as an officer of the local authority, contained defamatory complaints about the claimants' running of the school. The local authority and K contended that the claim was an abuse of the court's purpose as its purpose was to get round the rule in Derbyshire CC v Times Newspapers Ltd [1993] AC 534 which prevented a governmental body from suing for libel; also a governing body of a school, as a public authority, was a body without art.8 rights and so could not sue for such a breach of rights. They also contended that M's claim had been brought not for the dominant purpose of vindicating their reputations but for the collateral purpose of putting pressure on the local authority as a tactical ploy to assist the school in a long-running dispute as to the carrying out of its statutory functions in respect of the school.
The court held, refusing the application, that the effect of the Derbyshire decision was that everything turned on the choice of the right claimant, if there was an individual claimant, referred to and defamed. There was no principle precluding individuals from suing in cases where what was impugned was their conduct in the carriage of the business of a governmental body. The meanings pleaded in this case were not so clearly confined in their impact to M's individual official activities so as to make it suitable for determining the issue of law as to the precise scope of the principle, and the court was not prepared to say that the meanings did not significantly engage the claimants' private lives. A claim should not be struck out except where it was clearly and obviously right to do so, and so it was not appropriate to strike out M's claim on the basis that it was an attempt to circumvent the Derbyshire principle. It was not possible to conclude that there was no real or substantial tort, or that the pursuit of the action was a disproportionate exercise, or an abuse of the process of the court, and the application to strike out M's claim had to fail. (2 November 2010)

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

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Libraries and Museums

MLA: Strategic Commissioning programme to end: reports on action that the MLA is taking following DCMS's announcement that it will not fund a new round of the £1.8m Strategic Commissioning programme, which links museums and schools, after the programme ends in March 2011. (1 November 2010)

If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi.

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Education and Inspections Act 2006 (Commencement No. 6) (Wales) Order 2010 (SI 2010/2543 (W.212) (C.122)): this Order brings a number of provisions of the Education and Inspections Act 2006 relating to school discipline, behaviour and exclusion into force in Wales on 31 October 2010. (18 October 2010)

Child Minding and Day Care (Inspection and Information for Local Authorities) (Wales) Regulations 2010 (SI 2010/2575 (W.215)): these regulations, which come into force in Wales on 1 April 2011, set out both the arrangements for inspections of those providing child minding and day care and also the information which the Welsh Ministers must provide to a local authority when certain steps are taken. (22 October 2010)

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

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Bevan Brittan's Local Government Training Programme

Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act.

Forthcoming seminars in 2010 include: 

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

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