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:  

   Adult Social Services    Governance
   Asset Management    Highways
   Children's Services     Maladministration
   Civil Contingencies     Standards
   Delivery of Services    Structural Change
   Education    Wales
   Bevan Brittan's Local Government Training Programme


Adult Social Services

CQC: Overview of adult social care: this report provides an overview and commentary on trends in the regulated adult social care market over recent years. It is based on CQC's responsibilities under the Care Standards Act 2000, which came to an end on 1 October 2010. It has been compiled using data on council commissioning patterns, national minimum standards and registration data. It finds that adult social care services have improved significantly since 2008 but further growth in the market is required to meet future needs. The data shows that this year, 83% of care homes, home care services, nursing agencies and shared lives schemes were rated good or excellent compared to 69% in 2008. (9 November 2010)
CQC has published two technical reports alongside this overview report:

DH: A vision for adult social care - capable communities and active citizens: sets out a new agenda for adult social care based on a power shift from the state to the citizen. It is stated to be the first step towards the White Paper that the Government intends to publish next year, setting out a long-term solution to the funding and delivery of care and support. The Vision commits the Government to:

  • break down barriers between health and social care funding to incentivise preventative action;
  • extend the greater rollout of personal budgets to give people and their carers more control and purchasing power; and
  • use direct payments to carers and better community-based provision to improve access to respite care.
Councils should provide personal budgets for everyone who is eligible by April 2013 and social care should help develop the Big Society, with more local preventative activity to support people's independence. Information about care and support is available for all local people, regardless of whether or not they fund their own care.

 (16 November 2010)

DH: Transparency in outcomes: a framework for adult social care: seeks views on a new strategic approach to quality and outcomes in adult social care.  The consultation envisages an enabling framework based on three interdependent themes: outcomes, quality and transparency - it places outcomes at the heart of social care, improves quality in services, and empowers citizens to hold their councils to account for the services they provide. The consultation closes on 9 February 2010. (16 November 2010)

See also the DH's circular LAC (DH) (2010) 7 on The Vision for Adult Social Care and supporting documents that informs local authorities of the Government's new Vision for Adult Social Care and its consultation on Transparency in outcomes: a framework for adult social care. (18 November 2010) 

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

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Asset Management

ResPublica: To buy, to bid, to build - Community rights for an asset owning democracy: this thinktank report highlights ten simple strategies for enabling individuals and local groups to purchase the under-performing state assets the Government plans to sell off, and transform these into revitalised, community-owned enterprises. It backs a radical extension of the former right-to-buy policy to cover community assets and services, including leisure centres, roads and ports. Under the plans, local community groups would be given a right to buy state assets, and even keep profits from running them. It urges the Government to privatise vast swathes of the public sector including libraries, schools, hospitals and even prisons and police stations, and transfer them to community ownership. (15 November 2010)

CABE: Community-led spaces - a guide for local authorities and community groups: new guidance for local authorities and community groups on the transfer of parks and green spaces. It contains advice on putting together a business case for transfer, governance, finance and communications, with checklists for both local authorities and community groups throughout, and eight case studies. (17 November 2010)

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

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Children's Services

DfE: Government moves to free up children's centres: announces proposed reforms to early education that will free up children's centres so that they focus on families that will benefit the most from their services. The reforms include:

  • by 2013, putting into legislation the commitment for the most disadvantaged two-year-olds to receive 15 hours of free early education per week;
  • removing the requirement for children’s centres in the 30 per cent most disadvantaged areas to provide 40 hours of full day care a week; children's centres in those areas should instead build their services around the free entitlement for two- to four-year-olds and local authorities should continue to tailor services to meet local demand; and
  • removing the requirement for Sure Start children’s Centres in the most deprived areas to hire someone with both Qualified Teacher and Early Years Professional status.

Alonside this, the DfE has announced that it is to cease funding workforce development activity through the Children’s Workforce Development Council (CWDC). CWDC will cease to be a Non-Departmental Public Body and its functions will brought into the Department. (16 November 2010)

DfE: The adoption challenge: letter from the Children's Minister to all local authorities regarding the latest adoption statistics, which show significant variation in performance at local level. The Minister is calling on Directors of Children's Services and lead members to do everything possible to increase the number of children appropriately placed for adoption and to improve the speed with which decisions are made. (18 November 2010)

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

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Civil Contingencies

DEFRA: New funding for local flood rescue teams: announces a total of £2m funding for rescue services in England and Wales to help equip and train local flood rescue teams. (18 November 2010)

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

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Delivery of Services

Cabinet Office: New rights and support for staff mutuals – a Big Society plan for better public services: announces new ‘Rights to Provide’ across public services so that employers will be expected to accept suitable proposals from front line staff who want to take over and run their services as mutual organisations. Every Government Department will put in place a right for public sector workers to take over the running of their services, apart from areas such as defence and security . The new right will only apply if appropriate guarantees are met, mutual proposals will be expected to deliver savings to the taxpayer maintain or improve the quality of services. Where public procurement processes allow and savings are properly agreed, staff forming a mutual will be awarded a contract to continue providing services rather than going through the full tender process. There will also be new support for public service ‘spin-outs’ building on the Government’s Pathfinder programme, including over £10m to help the best fledgling mutuals reach investment readiness. (17 November 2010)

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

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DfE: Government announces end of complex school financial reporting tool: the Education Secretary has announced that he is abolishing the Financial Management Standard in Schools (FMSiS) with immediate effect. The DfE will now work with interested parties, including local authorities and schools, to develop a new, simpler way for schools to manage their budgets. It is hoped the replacement system will be introduced next year. (15 November 2010)

DfE: New leadership for children in need: the Education Secretary has announced plans to more than double the number of National Leaders of Education (NLEs), with the number of NLEs rising from 393 to 1000 by 2014. NLEs are serving headteachers who have achieved excellent results in their schools, in inspections, national tests and examinations. Alongside staff in their schools – which are identified as National Support Schools (NSSs) – NLEs use their knowledge and experience to provide additional leadership capacity to schools in challenging circumstances. Headteachers joining the programme will be expected to use their skills and experience to advise struggling schools and help them improve. The role of NLEs will also be strengthened and extended in the forthcoming White Paper, with new incentives for the most dramatic improvements in performance. (16 November 2010)

DfE: Academy model extended so that every school can benefit: announces an extension of the Academies programme so that  all schools that are ranked good with outstanding features by Ofsted will automatically be eligible for academy status. All other schools, primary or secondary, that wish to enjoy academy freedoms will also be eligible, providing they work in partnership with a high-performing school that will help drive improvement. In addition, for the first time, special schools will also have the opportunity to become academies. Special schools will be able to apply to convert in January 2011. (17 November 2010)

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

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Home Office: Political correctness won't lead to equality: the Minister for Women and Equality Theresa May has announced that the socio-economic duty under s.1 of the Equality Act 2010 will not be brought into force. The duty requires authorities, when making strategic decisions about how to exercise their functions, to have regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage. She also outlined a radical new approach to equalities that rejects political correctness and social engineering. The new approach will see the Government  encouraging greater transparency so that the public have the power to hold organiations to account; instead of trying to engineer equal outcomes for all, the Government will seek to create a level playing field where everyone has equal access to opportunity. (18 November 2010)

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

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DEFRA: Consultation on the governance arrangements for the National Parks and the Broads: the Coalition Agreement contained a commitment "to review the governance arrangements of National Parks in order to increase local accountability". This paper seeks views on the scope for improving the governance arrangements and accountability in the nine National Park Authorities (NPAs) in England and in the Broads Authority. Although the majority of the NPAs have broadly similar governance arrangements, it is felt that the most effective way to undertake the review is for each NPA to consult locally on potential changes which would work best for their areas, whilst at the same time reflecting the status of the Parks as national assets. This consultation does not therefore contain proposals for any particular structures or arrangements, but instead provides a remit for the review on which each NPA will base local consultation. The consultation closes on 1 February 2010. (9 November 2010)

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

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DCLG: Joint DfT/DCLG letter to local authorities on winter resilience: this letter to leaders of all local authorities emphasises the importance of working together to keep the transport network moving this winter. It advises authorities to implement the recommendations of David Quarmby's independent review (published October 2010) regarding utilisation of salt supplies. (12 November 2010)

Ali v Bradford MBC [2010] EWCA Civ 1282 (CA): this case considered the liability of a highway authority for breach of statutory duty under s.130 of the Highways Act 1980 and / or in nuisance for an accident suffered by a member of the public on a public footpath as a result of slipping on an accumulation of mud and debris. The judge, as a preliminary issue, ruled that the claimant's pleadings disclosed no cause of action.
The court held, dismissing A's appeal, that s.130 was concerned with the protection of the legal rights of the public at large to use the public highway, and was not about the safety of the condition of the highway. The section placed no express obligation on the highway authority to remove obstructions and there was no justification for the implication of such an obligation. To require highway authorities to carry out regular precautionary inspections of public footpaths to see that they were kept free from obstructions would have substantial economic implications for local authorities. For the courts to impose a liability through the law of nuisance would be to use a blunt instrument to interfere with a carefully regulated statutory scheme and would usurp the proper role of Parliament. (17 November 2010)

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

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R (Gallagher) v Basildon DC; Commission for Local Administration in England (Interested Party) [2010] EWHC 2824 (Admin) (Admin Ct): G, a traveller, applied to quash the local authority's decision not to follow the LGO's recommendation to pay her compensation. The LGO had found that a council report which contained personal information about G amounted to maladministration causing injustice, and it recommended that the local authority apologise and pay £300 compensation to G. The local authority sent an apology, but refused to accept the recommendation for compensation on the basis that it would not undo the worry and anxiety caused and because the repercussions feared by G had not materialised. G contended that the local authority was not accountable in the same way as central government and therefore could only reject the LGO's recommendations if it had cogent reasons for so doing.
The court held, granting G's application, that the Local Government and Housing Act 1989 gave the LGO power to make recommendations but did not make such recommendations specifically binding, or expressly require that local authorities should have "cogent reasons" for rejecting them - the only express sanction was local publicity leaving electors to determine whether the local authority had behaved acceptably. However, in this case the local authority's decision was unlawful as it had failed to take into account relevant considerations, had taken into account irrelevant considerations, or had given manifestly disproportionate weight to certain considerations. It had simply failed to ask itself the right question, namely given the nature of the maladministration and of the injustice caused, was a "botheration" payment fair and reasonable, given the amount recommended and the likely impact on local resources? (9 November 2010)

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

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DCLG: Freedom for councillors to champion their communities: outlines how the Government proposes to amend the law relating to bias and predetermination, to clarify that members can speak and vote on the issues on which they campaigned and were elected to represent their constituents.. The Communities Secretary has also stated that there will be new criminal sanctions for members who breach the new conduct regime. The measures will be included in the forthcoming Localism Bill. (14 November 2010)

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

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Structural Change

Local Government Boundary Commission:  On the right lines? A consultation on policy and procedures for principal area boundary reviews: seeks views on new procedures for local authority boundary changes from correcting minor anomalies to whole council mergers.The consultation proposes new procedures which are proportionate to the scale of boundary changes proposed. It also covers the Commission's approach to council mergers and how it expects proposals to be locally driven and based on sound business cases. The consultation closes on 31 December 2010. (18 November 2010)

Local Government Boundary Commssion: Striking the right balance - A consultation on policy and procedures for electoral reviews: seeks views on proposals to introduce a fast track approach to some electoral reviews. It also contains draft guidance on what local authorities can expect from the Commission if they wish to change the number of councillors. The consultation closes on 31 December 2010. (18 November 2010)

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

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National Assembly Communities and Culture Committee: Financial inclusion and the impact of financial education: this report examines the opportunities that people in Wales have to gain financial skills, confidence and knowledge, both to make informed decisions about using financial products and services, and to manage their money. It states that while there are financial education initiatives in place in Wales, the Welsh Government must do more to ensure that they are cohesive, effective and protected from cuts in a tight economic climate. It also highlights the importance of providing schoolchildren with adequate financial knowledge, recommending that the Welsh Government reviews the priority given to financial education in the PSE syllabus. The report recommends more engagement with the wider community and urges the Welsh Government to establish a central hub of information for agencies and communities to quickly identify potential partners to develop links and collaborative projects. (3 November 2010)

Carers Strategies (Wales) Measure 2010: this Measure has now received Royal Approval and comes into force on a date to be fixed by the Welsh Ministers by order. It enable the National Assembly to legislate to introduce a new requirement on the NHS and local authorities in Wales to work in partnership to prepare, publish and implement a joint strategy in relation to carers. (10 November 2010)

National Assembly Enterprise and Learning Committee: The role of social enterprises in the Welsh economy: this report calls for better utilisation of the social enterprise sector in Wales. The inquiry from the cross-party group found that the sector could provide innovative solutions to delivering services in a tight economic climate but is not being exploited by the Welsh Government. It recommends that Welsh Ministers bring social enterprise into the Department for the Economy and Transport, to give the sector more impetus. The Committee also questions the adequacy of financial and business support for social entrepreneurs, recommending that more accessible and comprehensive start-up and development support should be available. The report calls on the Welsh Government to do more to create an environment that encourages the identification and development of social entrepreneurs, such as factoring social entrepreneurship into schools’ and universities’ careers advice and work experience programmes. (18 November 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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