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     Highways
   Audit    Housing
   Children's Services    Localism Bill 
   Community Engagement    Procurement
   Education    Social Enterprises
   Efficiency     Structural Reorganisation
   Employment    Vetting and Barring
   Finance    Wales
   Bevan Brittan's Local Government Training Programme


Adult Social Services

Office for Disability Issues: Disabled people get right to control services: confirms the start of the Right to Control in the five Trailblazer authorities, with another two authorities starting on 1 March 2011. The Right to Control, introduced under the Welfare Reform Act 2009, gives disabled people more choice and control over the state funding they receive, allowing them to shape the support they receive, or use the money to buy their own services or equipment. Trailblazer partnerships between local authorities, Jobcentre Plus and disabled people’s organisations will work with disabled people to develop individual support plans, backed by £7m funding. Each plan will make effective use of all the funding available to an individual, to meet their goals. (13 December 2010)

DH: Implementing Fulfilling and Rewarding Lives - Statutory guidance for local authorities and NHS organisations to support implementation of the autism strategy: this guidance focuses on four important areas where health and social care can practically change the way they support adults with autism:

  • increasing understanding of autism amongst staff;
  • strengthening diagnosis and assessment of needs;
  • continuing to improve transition support; and 
  • ensuring adults with autism are included within local service planning.

(17 December 2010)

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

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Audit Commission: 2011/12 Proposed work programme and scales of fees: seeks views on the Commmission's proposed work programme and scales of fees for 2011/12, which may be the Commission's final year in its current form. It proposes significant reductions in audit fees of up to 20 per cent, which would save public bodies £11.8m. This is on top of rebates and the waiving of some inspection fees as already agreed for the current year, which total £12.8 m. The consultation closes on 7 January 2011.
The Commission has also issued the proposed scale of fees for each audited local government, housing and community safety body. (10 December 2010)

Audit Commission: Auditing the accounts 2009/10 - Quality and timeliness of local public bodies' financial reporting: summarises the timeliness of bodies' accounts and auditors' work on the financial statements of councils, police authorities, fire and rescue authorities and other local public bodies. Those bodies have a statutory duty to publish their accounts by 30 September, whether they have been audited or not. For the purposes of this report, the Audit Commission has taken 31 October as the date by which it considers all bodies should have been able to publish audited accounts. It congratulates seven councils, one police authority and three local government bodies for early publication, while auditors were unable to give opinions on the accounts by 31 October 2010 at seven councils (2 per cent of the total) and 11 local government bodies (12 per cent). The report also names two councils where the auditor gave a qualified opinion. All police authorities and fire and rescue authorities published their audited accounts by 31 October and none received a qualified audit opinion.(16 December 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: Review of the Office of the Children's Commissioner (England): presents the fnidings of Dr John Dunford's independent review of the office, role and functions of the Children’s Commissioner for England. The recommendations include changing the role through legislation by strengthening its remit, powers and independence. Dr Dunford concludes that there is a need for a Children’s Commissioner in today’s society but with a stronger role to promote children’s rights, in order for the Government to meet its commitment to implement the United Nations Convention on the Rights of the Child. Ministers have accepted his recommendations in principle and will consult in due course on legislative changes. (6 December 2010)

DfE: Government announces £800 million to support families: announces funding for respite care services for families with disabled children. Funding provided for short breaks will be delivered to local authorities through the Early Intervention Grant over the next four years. The figures includes the previously announced recycled Child Trust Fund money of at least £20m each year. The announcement follows the publication of an evaluation of the Government's Short Break pathfinder programme. (11 December 2010)

Draft Breaks for Carers of Disabled Children Regulations 2010: the Children and Young Persons Act 2008 inserts provisions into the Children Act 1989 imposing a duty on local authorities to provide breaks from caring to assist parents and others who provide care for disabled children. These regulations, which will come into force on 1 April 2011, prescribe how local authorities should carry out this duty. They prescribe the matters to which local authorities must have regard when performing their duty, the range of breaks which must form part of an overall service, and the way in which local parents must be informed of that service. (11 December 2010)

CAFCASS: The law about children - care: this web page provides an overview of the legal framework for public law cases brought under Part IV of the Children Act 1989. It summarises the range of orders that a local authority can seek in respect of a child in their area. (15 December 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: Guidance on community action during severe weather - the Big Society in action: this guidance challenges misconceptions about health and safety laws getting in the way of action and volunteering. It also contains contacts for useful charities such as the Red Cross for vulnerable people, tips on how to volunteer, and calls on councils and other local organisations to avoid bureaucracy getting in the way of community action. It also includes examples of local initiatives that are helping communities tackle the adverse weather conditions. (6 December 2010)

MoJ: Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders: in July 2010 MoJ set out a commitment to introduce a 'rehabilitation revolution' and conduct a review of sentencing policy. This consultation sets out the resulting proposals which aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework. It includes plans for local authorities to run payment-by-results programmes to help reduce crime, making councils share both the financial risk of young people entering custody, and the financial rewards if fewer young people require a custodial sentence. The MoJ will pilot at least six new rehabilitation programmes, delivered on a payment by results basis. Providers will be paid to reduce reoffending, funded in the long run by the savings to the taxpayer that this new approach is expected to generate. The consultation closes on 4 March 2011. (7 December 2010)

DCLG: Sustainable Communities Act - an invitation to inspire the Big Society : asks councils to consult their communities on how they would like to improve their local area, take whatever action they deem appropriate, and request the Government remove any bureaucratic barrier which is stopping them.
DCLG has set up an online Barrierbusting portal where community organisations and individuals can submit a request under the under the Sustainable Communities Act 2007 for removing red tape that they consider is hindering innovative ideas for community action. Everyone who submits a query will be given an individual number to track the progress of their request and the contact details of a named person they can talk to from a dedicated team of "barrier busters" - senior civil servants in the Government who will help find ways to let local people take control. (15 December 2010)

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

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QCDA: Access arrangements – useful information for local authorities: this web page provides links to information for local authorities on national curriculum access arrangements in 2011, including all the essential guidance. (15 December 2010)

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

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DCLG: Data burdens: seeks views on a draft single list of the minimum data that central Government needs from local authorities. The aim is to reduce bureaucratic burdens by streamlining how data is collected, reducing the size of some collections, and by councils themselves making data available to citizens, thereby reducing the need for central government to be involved. The finalised list will apply from April 2011. Comments must be submitted by 4 February 2011. (17 December 2010)

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

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Cabinet Office: Two-tier code withdrawn: announces that the Code of Practice on Workforce Matters in Public Sector Service Contracts (the "Two Tier Code"), which regulates the employment benefits of new staff recruited by contracted providers of outsourced public services, has been withdrawn with immediate effect. New Principles of Good Employment Practice will replace the code as a more flexible guide Francis Maude states that the decision will remove a significant barrier to smaller organisations that want to deliver public service contracts. SMEs, charities, social enterprises, voluntary groups and staff owned mutual providers of public services will all benefit from greater freedom to manage their business without central government interference; however, this change will have no impact on the TUPE terms under which public service staff transfer to new organisations.
Note that this change does not apply to the local government two tier code, the Code of Practice on Workforce Matters in Local Authority Service Contracts, which remains in place and local authorities should continue to apply it as appropriate on outsourcing contracts.
The Cabinet Office has also issued a Supplier Information Note on the effect of this withdrawal.
(13 November 2010)

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

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DCLG: Letter from Fire Minister Bob Neill about the Comprehensive Spending Review and the Fire and Rescue Services: this letter to Chris Williamson MP sets out what the Government is doing to help fire authorities maintain their excellent standard of service following the CSR. The Minister states that he has secured capital funding to support the service in responding to challenging times and he is keen to work with the sector to ensure this investment supports the delivery of efficiencies and encourage change. He will be talking to the sector shortly to establish the best route to distribute and utilise this funding. He has also  commissioned a wide-ranging review of the fire and rescue service in England so that he can better assess options for the future direction of service provision. (6 December 2010)

DCLG: Local Government Finance Settlement: the Government has announced the Local Government Finance Settlement for 2011/12 & 2012/13. It states that it has limited the average spending power reduction across all councils to 4.4% in 2011-12 and ensured that no council faces a reduction of more than 8.9% in spending power in 2011-12 or 2012-13. Other elements of the Settlement:

  • a transitional grant of £85m for 2011-12 and £14m in 2012-13 to help councils manage issues related to the ending of the Working Neighbourhoods Fund, a three year fund that was always scheduled to end in March 2011;
  • £650m to fund a one year freeze on council tax;
  • £2.4bn funding being rolled into the formula grant to support adult social care services. 

There is also a spreadsheet with details of the spending power reduction for each authority. For full details of the Settlement, see the Local Government Finance webpage. (13 December 2010)

DfT has published the local transport capital settlement for individual local authorities in England, with details of the allocation of more than £3bn over the next 4 years for local highways maintenance and over £1.3bn for small transport schemes.
The Home Office has published allocations of grant to police authorities in England and Wales for 2011-12 and given an indication of how it intends to allocate funding for the years 2012-13 to 2014-15.
DfE has announced the school funding settlement for 2011-12, including capital funding, details of the decisions resulting from the consultation on school funding and the introduction of the Pupil Premium, and academies funding.

DH: LASSL (DH) (2012) 2: Adults' personal social services: revenue grants and capital grant allocations for 2011-12 and 2012-13: this letter to local authorities confirms their adults’ Personal Social Services specific revenue and capital grant funding for the period 2011-13. The annexes contain details of individual funding stream allocation formulae (where available), and a brief description of each area. The letter should be read in conjunction with David Behan’s letter of 20 October 2010, which set out the different parts of the Spending Review settlement for social care. (13 December 2010)

DCLG: A Plain English guide to the Local Government Finance Settlement for 2011-12:  explains the different features of the settlement in more detail and includes general background details of the way local government is funded. (13 December 2010)

DCLG: Revenue support grant top-slice for improvement services to local authorities: Consultation - Summary of responses: sets out the Government's response to the Agust 2010 consultation on having a sole specified body which decides how best to use top-slice funding to deliver agreed objectives and key outcomes. The Government has decided to proceed with implementation of the proposals, with the LGID (IDeA) nominated as the sole specified body in 2011-12. This decision was effected by SI 2010/2568, which revokes the existing 1992 Regulations. The Government will consult on nominating the LGA as the sole specified body in place of LGID as and when their legal status enables them to receive top-slice funding. (13 December 2010)

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

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Valentine v Transport for London and Hounslow LBC [2010] EWCA Civ 1358 (CA): V brought a claim under the Fatal Accidents Act 1976 against the highway authority TfL and the local authority H after her husband died following an accident in which his motorbike skidded on an accumulation of surface grit on a sliver of tarmac at the edge of a highway. V claimed that TfL had breached its duty under s.41 of the Highways Act 1980 to maintain the highway and claimed that H had been negligent by failing to inspect or clean the road adequately and had caused or permitted the road to be dangerous. The judge struck out her claim against TfL on the basis that the s.41 duty did not extend to a duty to remove surface-lying material, and also struck out the claim against the local authority.
The court held, allowing V's appeal in part, that the duty under s.41 did not extend to a duty to remove all surface-lying material. The existence of a separate duty under s.150 of the 1980 Act to remove obstructions underlined the fact that s.41 did not embrace such an obligation, and the creation of a duty to prevent danger from snow and ice in s.41(1A) underlined the general rule that other material was not required to be removed. However, the claim against H would not be struck out: it was arguable that the cleaning of the road, with the exception of the sliver, had created a trap, which would be an alleged positive negligent act. Further, the case pleaded left it open for V to claim that the sweeper had pushed the grit onto the sliver, which would be a genuine case of a sin of commission. (7 December 2010)

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

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DCLG: The general consents under section 25 of the Local Government Act 1988 (Local authority assistance for privately let housing) 2010: these updated consents set out those situations (other than those prescribed in the primary legislation) where the Secretary of State's consent is not needed for local authorities to provide support for privately let housing accommodation. They revoke and replace the 2005 General Consents. (13 December 2010)

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

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Localism Bill

Localism Bill: this Bill has been introduced into the House of Commons and received its 1st Reading. The Bill contains a package of reforms that aim to devolve greater power and freedoms to councils and neighbourhoods, establish powerful new rights for communities, revolutionise the planning system, and give communities control over housing decisions.
We have issued an Authority Alert: The advent of localism in which we give our initial comments on the key measures contained in the Bill’s 207 clauses and 24 schedules.
The LGA has issued an On the Day Briefing that summarises and comments on the Bill's main provisions. (13 December 2010)

DCLG: Decentralisation and the Localism Bill - an essential guide: describes the six essential actions that central government will need to take to do things differently, in behaviour, expectation, and culture, which go alongside the changes in law proposed in the Bill. (13 December 2010)

Seminar on Decentralisation and the Localism Bill - 22 December 2010: Bevan Brittan is giving a seminar at our London office, in which Bethan Evans and Peter Keith-Lucas will provide a critical look at the Bill, identifying the principal changes and how they will impact on local authorities. The event is organised by LGG - please contact them to book a place.

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

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OFT: Commissioning and competition in the public sector: the OFT has announced that it is conducting a study into commissioning and competition in the provision of public services, designed to help government buyers promote competition in markets in order to realise better value for money. The study's objective is to provide constructive and practical guidance to policymakers and commissioners of public services in local, central and devolved government on how to take due account of competition issues in the procurement of public services.  It is expected to report in March 2011. (10 December 2010)

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

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Social Enterprises

Cabinet Office: Modernising Commissioning - Increasing the role of charities, social enterprises, mutuals and cooperatives in public service delivery: this Green Paper takes forward commitments made in the Coalition Programme to support the creation and expansion of mutuals, co-operatives, charities and social enterprises, and enable these groups to have a much greater involvement in the running of public services. It seeks views on how the Government can create a level playing field for charities, voluntary groups and social enterprises that want to bid for public service contracts. Comments on the proposals will inform a Public Service Reform White Paper to be published early in 2011. The consultation closes on 5 January 2011. (7 December 2010)

Cabinet Office: Government, voluntary and community sector agree new Compact for working in partnership: announces a new agreement governing relations between the Government and civil society organisations in England. The new Renewed Compact is an agreement between the Coalition Government, its associated NDPBs, arm's length bodies and executive agencies, and civil society organisations (e.g. charities, social enterprises and voluntary and community groups) in England. The agreement aims to ensure that the Government and CSOs work effectively in partnership to achieve common goals and outcomes for the benefit of communities and citizens in England. It is backed by a set of accountability and transparency measures. (15 December 2010)

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

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Structural Reorganisation

Local Government Act 2010: this Act has received Royal Assent and came into force on 16 December 2010. It  gives effect to the Government's commitment in the Coalition Programme to put a stop to existing proposals for the restructuring of councils in Norfolk, Suffolk and Devon. It does this by preventing the implementation of any unitary proposals that remain outstanding under Part 1 of the Local Government and Public Improvement in Health Act 2007. (16 December 2010)

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

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Vetting and Barring

R (N) v A Local Authority (Unreported, 9 December 2010) (Admin Ct): N worked in a capacity which required the local authority to issue him with a licence to be in contact with children. In 2006 he was accused of serious sexual offences against a young child but the police dropped their investigation for want of evidence and no action was taken against him; he then failed to disclose two addresses where he had stayed while on bail. After the local authority received an anonymous allegation that N was a paedophile, it told N that his licence was withdrawn due to his failure to disclose the 2006 allegation and the addresses. N appealed against the decision to withdraw his licence and his appeal was discussed with the professionals from the strategy meeting who confirmed that the decision stood due to concerns relating to the risk that he posed to children.
The court held, allowing N's application for judicial review, that the authority's decision withdrawing the licence would be quashed on general public law principles as the decision making process was flawed. (9 December 2010)

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

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Welsh Language (Wales) Measure 2010: this draft Measure has been passed by the National Assembly and awaits Royal Approval. The Measure modernises the existing legal framework largely governed by the Welsh Language Act 1993 regarding the use of the Welsh language in the delivery of public services. The Measure:

  • confirms the official status of the Welsh language;
  • creates a new system of placing duties on bodies to provide services through the medium of Welsh;
  • creates a Welsh Language Commissioner, replacing the Welsh Language Board, whose functions include promoting and facilitating the use of the Welsh language and promoting equality between the Welsh and English languages; he also has power to protect individuals’ right to use Welsh and to investigate attempts to interfere with the freedom of Welsh language speakers to use the language with one another;
  • provides for the development of standards of conduct relating to the Welsh language which will gradually replace the existing system of Welsh language schemes;
  • establishes a Welsh Language Tribunal; and
  • creates a Welsh Language Partnership Council to advise Government on its strategy in relation to the Welsh language.
  • (7 December 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. For more information, please contact our Events team.

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