Authority Update

Legal intelligence for professionals in local government.

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

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update:  

Access to Information	Health and Social Care
Adult Social Services	Localism
Civil Contingencies	Parish Councils
Education	Procurement
Finance	Wales

Access to Information

Commons Communities and Local Government Committee:  Proposed Code of Recommended Practice on Local Authority Publicity: this report examines the Government's draft Code of Recommended Practice on Local Authority Publicity that was issued for consultation in September 2010. The revised Code is intended to give effect to the Coalition Agreement commitment “to impose tougher rules to stop unfair competition by local authority newspapers”. The Committee finds little hard evidence to support the commercial newspaper industry's view that council publications are competing unfairly with independent newspapers to any significant extent. It recommends that the Government: commission an independent inquiry to quantify the competitive impact of council newspapers on the independent press; review the publication rules that apply to statutory notices; and develop a separate Code of Practice to govern the use of lobbyists by local councils. (27 January 2011)

Chief Constable of South Yorkshire v Information Commissioner [2011] EWHC 44 (Admin): the Chief Constable appealed against a decision that time spent redacting exempt information from documents requested under the Freedom of Information Act 2000 by W was not to be included when estimating the costs of complying with the information request. The Information Tribunal held that the costs of "extracting the information" from a document, which were permitted to be included in a costs estimate by reg.4(3)(d), did not include identifying and redacting exempt information.
The court held, dismissing the appeal, that since reg.4(2) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 referred to all information that came within s.1(1) of the Act whether or not it was exempt from disclosure, there was no basis for asserting that time spent redacting exempt information was to be included in reg.4(3)(d) as well as time spent in extracting the requested information. That approach was consistent with the fact that, although a public authority was obliged to provide requested information if not exempt, it was not obliged to rely on an exemption. (21 January 2011)

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

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Adult Social Services

Amberley (UK) Ltd v West Sussex CC [2011] EWCA Civ 11 (CA): A ran a residential care home. It appealed against a decision that it had no unilateral right to charge the care fees for which it had invoiced the local authority. The residents' contracts included a term stating that the level of fees payable to A was subject to review as costs increased. The local authority became responsible for paying the fees for certain residents whose obligations to pay fees constituted "existing arrangements" within s.50(6) of the Health and Social Care Act 2001, and their liability had thus become the liability of the local authority. A demanded increased fees from the local authority to cover higher costs.
The court held, dismissing A's appeal, that although parties to a contract could agree that one party could unilaterally vary the terms to the detriment of the other, that was an unusual provision and clear words would be required to achieve that result. There was nothing in the contract terms giving A an express right to increase the fee unilaterally and then enforce the increase. In context, the fee review clause meant that the fees were subject to review, and the parties must have intended that A would carry out the review; however, if A wished to increase the fees, it had to obtain the resident's agreement so as to vary the contract. (20 January 2011)

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

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Civil Contingencies

Cabinet Office UK Resilience: Civil Contingencies Act Enhancement Programme - Phase 2: Consultation on revised chapters of Emergency Preparedness: seeks views on revisions to the statutory guidance that accompanies the Civil Contingencies Act 2004, and also a new chapter on "The fit with other legislation". The consultation closes on 14 March 2011. (17 January 2011)

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

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Education

Education Bill: this Bill has been introduced into Parliament and received its 1st Reading. The bill includes:

• power to teachers to search pupils for items banned under the school rules and issue same-day detentions;
• exclusion appeal panels to be replaced by review panels, which will review decisions but will not have the power to force a school to reinstate an excluded pupil;
• repeals the power for parents to make complaints about schools to the LGO;
• makes changes to the duties of local authorities in relation to school admissions;
• parents of disadvantaged two-year-olds will have a right to 15-hours free Early Years provision a week;
• expands the Academies programme to allow 16-19 and alternative provision academies;
• presumption that when local authorities set up new schools they will be Academies;
• abolishes five arm’s length bodies (General Teaching Council for England, the Training and Development Agency for Schools, the School Support Staff Negotiating Body, the Qualifications and Curriculum Development Agency and the Young People’s Learning Agency for England) and transfers any retained functions to the Secretary of State; and
•  school inspections to focus on four core areas: achievement, teaching, leadership and management, and behaviour and safety.

 (26 January 2011)

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

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Finance

DCLG: Capitalisation: Communities Minister Andrew Stunell has written to all local authority leaders about capitalisation for 2011-12. He writes that full guidance will be issued to authorities earlier than in previous years, for clarity and in order to support local authorities who wish to deliver efficiency savings early through organisational restructuring. The letter states that "it is sensible for authorities to consider drawing on their reserves to address short term costs and pressures, and to help them manage transformational change, where it is appropriate to do so. That will include managing the costs of internal restructuring"; and "the Treasury does not require reserves to be earmarked for PFI purposes, nor that any such arrangement be retained over the life of the contract". (28 January 2011)

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

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Health and Social Care

Health and Social Care Bill: this Bill has been introduced into Parliament and received its 1st Reading. The Bill provides the legal framework for the Government's NHS reforms that were first announced in the July 2010 White Paper "Equity and Excellence: Liberating the NHS". It contains a number of provisions relevant to local authorities, including:

• local authorities must establish Health and Wellbeing Boards which will have responsibility for encouraging integration of health and social care commissioning, and to encourage s.75 arrangements;
• local authorities will no longer be required to have Health Overview and Scrutiny Committees, but will continue to have oversight and scrutiny powers, which they may discharge how they see fit;
• Local Healthwatch bodies to replace LINks, based in local authority areas and funded by local authorities;
•  local authorities have a duty to make arrangements for the provision of independent advocacy services for complaints relating to the provision of health services;
• new duties on local authorities and commissioning consortia regarding joint health and well-being strategies and joint strategic needs assessment; and
• responsibility for public health goes to local authorities, subject to a degree of central supervision.
• The Bill's progress through Parliament can be tracked on the Parliamentary Bills website, which also contains links to the full text of the Bill, the Explanatory Notes and other related documents. (19 January 2011)

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

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Localism

Localism Bill: the Bill has had its 2nd Reading in the House of Commons and has now passed to Committee. The debate is reported in Hansard. (17 January 2011)
The LGA has published a Briefing on the 2nd Reading debate, giving their views on clauses which they fully welcome; clauses which they have questions about; clauses which require further work; and clauses which should be deleted.

DCLG: A plain English guide to the Localism Bill: gives an overview of the Bill and describes its main measures relating to: new freedoms and flexibilities; new rights and powers for communities and individuals; reform of the planning system; and housing reforms. (17 January 2011)

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

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Parish Councils

Commission for Rural Communities: Continuing effective engagement for town and parish councils: this suite of good practice guidance materials covers: guidance and case studies for new local councils; case studies on principal local authorities delegating services to local councils; guidance on double-taxation for local councils; and advice for smaller local councils. (24 January 2011)

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

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Procurement

European Commission: Consultation on the modernisation of EU public procurement policy – Towards a more efficient European procurement market: seeks views on how the EU public procurement legislation could be updated to help public procurers cope with the combined challenges of the need for the most efficient use of public money and the growing demand that public purchasing contributes to the achievement of overall societal goals. It focuses on focus on the modernisation of the rules, tools and methods for public procurement to deliver better on these goals. The consultation closes on 18 April 2011. (27 January 2011)

Mears Ltd v Leeds City Council [2011] EWHC 40 (QB) (QBD): this case concerned the Council's ALMO's procurement of capital improvement and refurbishment works for social housing in the Leeds area. M was informed that it was unsuccessful; during the course of the feedback and the surrounding communications, it emerged that the local authority had drawn up model answers to be used by its officers in the tendering process. M claimed that the Council had breached the Public Contracts Regulatons, and sought an interim order suspending the procurement and an order that the local authority re-run the procurement either in full or in part.
The court held, ordering limited disclosure, that to the extent that the model answers did not contain any new criteria or weightings but performed the task of seeking to ensure fair and consistent assessment of the tenders within stated criteria and weightings, the Council was entitled to keep the model answers confidential from the tenderers, but the mere fact that they were confidential did not prevent them from being disclosed.  The model answers were evidently part of the guidance given by the local authority to evaluating the tenders; however, any confidentiality should be preserved at the instant stage and as such it was only appropriate that the answers be provided to M's legal representatives for inspection and then if appropriate to an individual of M who had not been involved in the procurement. (19 January 2011)

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

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Wales

National Assembly for Wales Legislation Committee No.2: Report on the Proposed Housing (Wales) Measure - Stage 1 Committee Report: examines the draft Housing (Wales) Measure that proposes to give Welsh Ministers the power to suspend the right to buy and right to acquire council or housing association-owned homes for a maximum 10 year period in areas of housing pressure. The Measure will also give Welsh Ministers enhanced regulatory and intervention powers relating to Registered Social Landlords. The Legislation Committee broadly supports the draft Measure, and makes some recommendations for changes, particularly in the area of consultation, and adding timescales to ensure any applications by tenants to implement the right to buy are not stayed indefinitely whilst local authorities are applying for a suspension. (18 January 2011)

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

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