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    Highways
   Adult Social Services    Housing
   Anti Social Behaviour    Judicial Review
   Children's Services    Localism Bill
   Civil Contingencies    Procurement
   Community Engagement    Regulatory Services
   Education    Transport
   Equality    Vetting and Barring
   Finance    Wales

 

Access to Information

DCLG: Code of recommended practice for local authorities on data transparency: seeks views on a draft Code, issued under s.2 of the Local Government, Planning and Land Act 1980, that lays down the core principles of data transparency which all local authorities should embrace as part of the new era of accountability.  The draft Code includes the minimum data sets that should be released by local authorities:

  • expenditure over £500, (including costs, supplier and transaction information);
  • grants and payments under contract to the voluntary community and social enterprise sector;
  • names, budgets and responsibilities of staff paid over £58,200 (equivalent to the lowest Senior Civil Service pay band);
  • an organisational chart;
  • councillor allowances and expenses;
  • copies of contracts and tenders to businesses and to the voluntary community and social enterprise sector;
  • policies, performance, audits and key indicators on the authorities' fiscal and financial position; and
  • data of democratic running of the local authority including the constitution, election results, committee minutes, decision-making processes and records of decisions.

The consultation closes on 14 March 2011. (7 February 2011)
Also, the Decentralisation Minister Greg Clark has written to all council leaders about supporting the voluntary sector and small firms. He states that the Government expects them to publish all grants and payments, as well as copies of contracts and tenders, they make to the voluntary, community and social enterprise sector. (4 February 2011)

DCLG: Code of Recommended Practice on Local Authority Publicity: this revised Code has been laid before Parliament for approval. It applies in relation to all decisions by local authorities relating to paid advertising and leaflet campaigns, publication of free newspapers and news sheets and maintenance of websites, including the hosting of material which is created by third parties. Local authority publicity must be based on seven principles, that it: be lawful, cost-effective, objective, even-handed and appropriate;have regard to equality and diversity; and be issued with care during periods of heightened sensitivity. (11 February 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

DH: No health without mental health - a cross-Government mental health outcomes strategy for people of all ages: this strategy sets out six shared objectives to improve the mental health and well-being of the nation, and to improve outcomes for people with mental health problems through high quality services. It will enable more decisions about people's mental health to be taken locally, and stresses the interconnections between mental health, housing, employment, and the criminal justice system. The DH has also published a number of supporting documents, including details of how to deliver better mental health outcomes. (2 February 2011)

DH: Reaching Out to Carers Innovation Fund: the DH has launched a £1.39m fund for voluntary sector organisations in England to help identify and support carers, particularly those who have taken on the role for the first time and those who may not realise they are a carer. There is a list of the 79 projects that will be funded. (7 February 2011)

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: More effective responses to anti-social behaviour: seeks views on proposals for a number of new measures to better protect communities from the serious harm caused by criminal and antisocial behaviour. The proposals include:

  • repealing the ASBO and other court orders and replacing them with two new tools that bring together restrictions on future behaviour and support to address underlying problems;
  • ensuring there are powerful incentives on perpetrators to stop behaving anti-socially;
  • bringing together many of the existing tools for dealing with place-specific anti-social behaviour;
  • making the informal and out-of-court tools for dealing with anti-social behaviour more rehabilitative and restorative; and
  • introducing a "Community Trigger" requiring local agencies to take action if several people in the same neighbourhood have complained, or the behaviour in question has been reported to the authorities by an individual three times, and no action has been taken. Local authorities would have a duty to inform the complainants within 14 days what they planned to do; Police and Crime Commissioners would then be able to 'call in' the authority for an explanation if they felt the response was inadequate.

 The consultation closes on 3 May 2011. (7 February 2011)

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

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Children's Services

Munro Review of Child Protection: Interim report - The child’s journey: this is the second report of Prof. Eileen Munro's independent child protection review, following on from Part 1: A System’s Analysis, which discussed the problems in the child protection system and how they have arisen. This second phase of the review looks at how to refocus on the child’s journey from needing to receiving the right help. It examines the areas of the child protection system where reform needs to take place, finding that currently the amount of prescription and bureaucracy in the system has meant social workers are not able to do the jobs they came into the profession to do. The report highlights the importance of having multi-agency services based in the community to help keep children safe and support their wellbeing, identify the children and families most in need and give them help as early as possible. Prof. Munro will present her final report and recommendations to Government in April 2011. (1 February 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: Communicating with the public - The Ten Step Cycle: informal guidance for practitioners to help their Local Resilience Forums (LRFs) implement the Communicating with the Public duty, as laid down in the Civil Contingencies Act 2004. The guidance provides a clear and comprehensive set of directions for establishing local warning and informing arrangements based on the Community Risk Register. It focuses on key activities for the work, including establishing a public advice and warning sub-group, selection of lead responders, audience identification, stakeholder consultation, exercising, and review. Each activity is explained and, where appropriate, examples of how an LRF have undertaken it are given. (8 February 2011)

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

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Community Engagement

DCLG: Communities to be given right to reclaim land: announces a new "Community Right to Reclaim Land" that will help communities to improve their local area by using disused publicly owned land and buildings for new development. By the end of May 2011, regulations will be laid to enable the little-used power under the Local Government, Planning and Land Act 1980 to become a part of the Community Right to Reclaim Land. The regulations will also significantly expand the number of public bodies that can be approached with a request to sell their assets. This new Community Right will complement the proposed new Community Right to Build, which will offer communities the chance to give the green light to new developments without the need for specific planning applications. (2 February 2011)
DCLG is also calling on Government departments to make more information about their surplus land available. To kick-start this drive towards greater transparency and set an example for what the public sector can do, it has published a detailed list of all the land and property assets owned by the HCA, so communities can see where land and property is located and its status.

DCLG: Proposals to introduce a Community Right to Buy - assets of community value: seeks views on provisions in the Localism Bill that aim to assist community organisations to purchase assets of community value. Under the proposal, local groups would have a legal right to nominate any vital community asset to be assessed for recording on a 'most wanted' list by the local council. The asset could then be listed for five years. In that time, the owner of a listed asset would have to tell the council if they intended to sell, which would trigger a window of opportunity or 'community countdown', giving people time to prepare their business plan and raise the funds they need to make a credible bid before it goes on the open market. The paper discusses the detail of how the scheme should be delivered, which will be set out in regulations, and also what type of support and guidance should be provided. The consultation closes on 3 May 2011. (4 February 2011)

DCLG: Proposals to introduce a Community Right to Challenge: seeks views on the provisions in the Localism Bill to introduce a Community Right to Challenge that would give community or voluntary sector groups, as well as parish councils and council employees, new powers to challenge and take over a local service. Under the proposed new law, councils would have to respond to this challenge and consider the positive impact the proposal could have on the community. If the proposal was turned down the council must publish the reasons for this. The paper discusses the detail of how the Right will work in practice, which will be set out in regulations, and also what type of support and guidance should be provided. The consultation closes on 3 May 2011. (4 February 2011)

DCLG: New boost for community ownership as Government releases central hold on local assets: announces that the Government is ending 'clawback rights' that stopped community and voluntary groups selling or changing the use of community land or buildings that were funded by specific historic government grant programmes. The restrictions meant that original grant funding was clawed back if one of these local assets were sold or their original purpose changed, even if the government scheme had long since ended. Ministers were worried that this forces community owned assets to stay stagnant and potentially unused when the land or building could be serving the community. The removal of these 'clawback rights' means that communities will now be free to use their assets as security to obtain loans to sustain or expand their activities. If an asset is too expensive or no longer fit for purpose they will be able to sell it and move to more appropriate premises that better meets the needs of local people. (8 February 2011)

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

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Education

Jones v Neath Port Talbot CBC [2011] EWCA Civ 92 (CA): J, a deputy head teacher, appealed against the EAT's decision that the Council was not potentially directly liable for her unfair dismissal from an infants school. The school had closed and beomce part of a new primary school. J applied unsuccessfully for a post at the new school and the Council dismissed her on the grounds of redundancy without having been notified by the governing body, G, that it should do so. The Council contended that under art.3 of the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (SI 2006/1073), G was treated as the employer whenever it was exercising its employment powers. G contended that it could not be liable as it had ceased to exist. The Council accepted that it was potentially indirectly liable for J's unfair dismissal. J contended that where a local education authority had sought to exercise powers in a manner usurping the powers of the governing body, it should be directly liable in its own right.
The court held, allowing J's appeal, that the conclusion that the act of dismissal was G's, as it could have prevented the effect of the notice of dismissal but had acted on the assumption that the dismissal was effective, was not open to the court in the absence of relevant evidence. Factual assumptions regarding the role of G in J's dismissal were to be resisted as those were matters which had to be resolved on the evidence. The facts of this case were exceptional; there would remain only one respondent as G had been abolished. (8 February 2011)

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

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Equality

Hajrula and Hamza v London Councils [2011] EWHC 151 (QB) (QBD): H applied for judicial review of LC's decision to cut its grants scheme funding to voluntary sector organisations in London. LC consulted on its plans to categorise the services funded by the grants as pan-London, sub-regional and local, and to limit its scheme to genuine cross-London services. H claimed that LC's consultation process was flawed as LC had considered services by service head rather than by individual service commissions or protected characteristics.
The court held that the process by which the categorisation had been carried out was flawed because LC had failed to have due regard to its Public Equality Duties under s.71 of the Race Relations Act 1976, s.76A of the Sex Discrimination Act 1976 and s.49A of the Disability Discrimination Act 1995. The judge quashed the categorisation of services for funding purposes, the decisions on timing and transitional arrangements, and consequent decisions to withdraw funding in individual cases, and he ordered that LC reconsider these matters on the basis of their statutory equality duties. (1 February 2011)
The judgment is not available on BAILII. If you would like a copy, please email Claire Booth.

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

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Finance

DCLG: Final local government settlement a fair deal for communities: announces the finalised Local Government Finance Settlement 2011/12. DCLG states that councils will only see an average 4.4 per cent reduction in revenue spending power and the grant has been adjusted so none will now face more than an 8.8 per cent fall. The press release summarises the key features of the settlement; full details are on the Local Government Finance website. (31 January 2011)

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

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Highways

DfT: Road network policy consultation: seeks views on proposals to devolve responsibility for the classification of local roads to local authorities, and to reduce the DfT’s role to guidance and appeals cases. Under the new system, councils will have control over road classification decisions in their area - including which roads should be used as primary routes - with no requirement to get approval from the DfT, which will only deal with contentious cases where there are serious disagreements about a council's decision. Local authorities will be required to send a formal record of any changes to its road network to DfT but reporting will be streamlined. The consultation also outlines existing policy on elements of the strategic road network, streamlines data reporting procedures, and considers ways in which satnav technology fits with existing arrangements. The consultation closes on 1 May 2011. (1 February 2011)

DCLG: Councils are free to avoid charges for Royal Wedding street parties: reports that the Transport Secretary Philip Hammond is writing to all English local authorities informing them that he is scrapping the DfT guidance on road closures, thus making it easier for communities to hold street paries to celebrate the Royal Wedding in April. The guidance, which was intended to cover all types of special event, was sometimes being misinterpreted by councils causing them to impose extra bureaucracy and costs on residents. This led to some communities being told they would need to employ traffic management companies to close off their road when holding even small street parties. (7 February 2011)

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

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Housing

DCLG: Implementing self-financing for council housing: Part 6 of the Localism Bill providees for a new system of council housing finance through the termination of the Housing Revenue Account subsidy system and the introduction of a self-financing system from April 2012 which will allow councils that operate a Housing Revenue Account to keep the rent received from their tenants. This policy document sets out the rationale, methodology and financial parameters for the reforms, and outlines the wider policy context, including those policies that will support the successful implementation of this devolved system. It aims to provide local authorities with the information they need to begin their detailed preparations for self-financing. (1 February 2011).
It is accompanied by:

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

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Judicial Review

R (Luton BC & Nottingham City Council) v Secretary of State for Education [2011] EWHC 217 (Admin) (Admin Ct): six local authorities applied to quash the SoS's decision to cancel capital funding for their Building Schools for the Future (BSF) projects. They contended that the SoS's decision was irrational or unlawful as he did not consider their cases and projects in a sufficiently case-specific way, had failed to consult with them, had breached their legitimate expectations, and had failed to discharge his statutory duties under the equality legislation.
 The court held that the SoS had reached his decision unlawfully and so would have to reconsider each of the claimants' BSF projects. The Outline Business Case (OBC) and other DfE material did not create a substantive legitimate expectation that any given BSF project would definitely proceed because it was in the nature of BSF that, short of a promissory note, a change of government might lead to a change of policy or spending priorities. The way in which the SoS abruptly stopped the projects in relation to which OBC approval had already been given, without any prior consultation with the claimants, was so unfair as to amount to an abuse of power: however pressing the economic problems, there was no "overriding public interest" which precluded any consultation or justified the lack of any consultation and so the decision making process was unlawful. The process was also unlawful because of the SoS's failure to discharge the relevant statutory equality duties: the judge was not satisfied that any regard was had to the relevant duties at all, let alone rigorous regard, and an Equality Impact Assessment, which was carried out after the decision had been made and announced, was too late to repair the omission. The SoS was required to reconsider his decision insofar as it affected the claimants and each of the projects in relation to which they have claimed, with an open mind, paying due regard to any representations they may make, and rigorously discharging his equality duties.(11 February 2011)
Bevan Brittan LLP acted for Sandwell MBC, one of the six claimants, in this case. We have issued an Alert, in which we comment on the implications of this decision for public bodies considering spending cuts: Local authorities succeed in BSF challenge.

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

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Localism Bill

DCLG: Localism Bill impact assessments: DCLG have published a set of Impact Assessments (IAs) for the Localism Bill, which provide a cost benefit analysis of the various provisions and also set out the policy background.
There are separate detailed IAs for each policy area, including:

There is also a general IA that has a table summarising the cost and benefit impacts of individual policies. (31 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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Procurement

European Commission: Green Paper on the modernisation of EU public procurement policy - Towards a more efficient European procurement market (COM(2011) 15): seeks views on how the EU procurement legislation could be updated to help public procurers cope with new challenges, such as the need for a more efficient use of public funds as well as taking into account social and environmental concerns. The consultation focuses on the modernisation of the rules, tools and methods for public procurement. The Commission is also currently undertaking a comprehensive ex-post evaluation to take stock of the efficiency and cost-effectiveness of the current European public procurement rules. The results of this evaluation and of the Green Paper consultation will be discussed at a high level conference on public procurement reform, planned for 30 June 2011 in Brussels. All work streams will then feed into any appropriate legislative proposals. The consultation closes on 18 April 2011. (27 January 2011)

Brent LBC and Harrow LBC v Risk Management Partners Ltd [2011] UKSC 7 (Sup Ct): the issue in this appeal was whether the Public Contracts Regulations 2006 applied to contracts of insurance that had been awarded to a mutual insurance company, LAML, which had been set up by a number of London Boroughs. The Boroughs contended that they did not have to comply with the 2006 Regulations as the contract was awarded to a company which fell within the so-called “Teckal exemption”. The Court of Appeal held that although arrangements between participating authorities could in principle come within the "Teckal exemption", here LAML could not be regarded as a department of each of the participating local authorities - it could not operate effectively unless its Board had considerable freedom to manage its insurance business.  The nature of its business, and the possibly differing interests of different authorities and affiliates, were antithetic to the necessary local authority control. 
The Supreme Court held, allowing H LBC's appeal, that the 2006 Regulations did not apply where a local authority intended to enter into a contract of insurance such as that with LAML. An insurance contract was just as eligible for the exemption as any other contract such as one for waste services. What mattered was whether the arrangement satisfied the control test laid down in Teckal. ECJ case law on the control test, particularly Coditel Brabant SA v Commune d'Uccle (Case C-324/07), stated that the test would be satisfied where control was exercised by the authorities collectively – it was not essential that it be exercised by each authority individually. Here, although it was true that, when it came to claims, the nature of the relationship between each participating member as insured and LAML was essentially one between independent third parties, collective control over strategic objectives and significant decisions was with the participating members at all times and so the Teckal control test was satisfied. On the facts, the function test was also satisfied and none of the issues or the answers gave rise to any questions requiring guidance from the ECJ. (9 February 2011)
Bevan Brittan has issued an Alert on this case, in which we look at the implications of the decision for local authorities that are contemplating setting up new entities to share the delivery of services: Mutual joy - Supreme Court clarifies procurement rules for local authority companies.

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

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Regulatory Services

LBRO: Priority regulatory outcomes - A new approach to refreshing the National Enforcement Priorities for Local Authority Regulatory Services: seeks views on a proposal to replace the existing National Enforcement Priorities for England with broader priority regulatory outcomes. The five draft national enforcement priorities cover issues of concern to local citizens and businesses, including the quality and safety of the local environment, quality of life issues such as housing, noise and anti social behaviour, and the hygiene and safety of local retail outlets. They reflect the Government's intention to create the conditions to enable effective and accountable local delivery, while local authorities use their understanding of their communities to deliver the outcomes. The consultation closes on 6 May 2011. (8 February 2011)

Protection of Freedoms Bill: this Bill has been introduced into the House of Commons and received its 1st Reading. Provisions of particular interest to local authorities include:

  • further regulation of CCTV systems and other surveillance camera technology operated by the police and local authorities, with a statutory code of practice and the appointment of a surveillance camera commissioner with responsibility for reviewing and reporting on the operation of the Code;
  • amendments to local authorities' RIPA powers so as to require them to obtain judicial approval for the use of covert investigatory techniques;
  • prohibition on wheel clamping, with a new criminal offence to immobilise, move or prevent the movement of a vehicle without lawful authority. Parking providers and other landowners may seek to recover unpaid parking charges from the registered keeper of a vehicle;
  • extending the FOI regime to cover companies wholly owned by two or more public authorities;
  • reform of the Vetting and Barring Scheme and criminal records regime (see below); and 
  • a right to data, with an obligation on public authorities to proactively release datasets in a reusable format.

(11 February 2011)

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

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Transport

DfT: Investment in local major transport schemes – update: this written statement announces that 10 local authority capital transport schemes have been approved for funding under the new decision process that was published in October 2010.
The DfT has also published details of the 23 schemes that have moved from the Pre-Qualification Pool to the Development Pool. The promoters of all schemes in the Development Pool must submit their Best and Final Funding Bids by September 2011, and funding decisions will be made by the end of 2011. (4 February 2011)

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

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Vetting and Barring

Home Office: Vetting & Barring Scheme Remodelling Review – Report and recommendations: sets out the findings of a review of the Vetting and Barring Scheme (VBS) under the Safeguarding Vulnerable Groups Act 2006, following concerns that the Scheme was a disproportionate response to the risk posed by a small minority of people who wished to commit harm to vulnerable people. It concludes that employers have a critical role to play in ensuring safe recruiting practices but that this should be supported by a proportionate central barring scheme. It recommends a revised Scheme that retains the best features of the VBS, but will not require registration or monitoring and will only cover those who may have regular or close contact with vulnerable groups, defined as "regulated activity" in legislation. The proposed changes are set out in the Protection of Freedoms Bill, which has received its 1st Reading in the Commons. (11 February 2011)

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

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Wales

National Assembly for Wales Communities and Culture Committee: The accessibility of arts and cultural activities in Wales: this report examines whether the Welsh Government‘s existing investment in arts and cultural activities has been effective in achieving WAG‘s stated objective of widening accessibility to cultural experiences, and the impact of future funding decisions on that stated objective. It makes a number of recommendations, including that there should be new legislation to ensure that people across Wales have access to arts and culture in their local area, with a statutory duty placed on local authorities to support arts and cultural experiences. The Committee also wants to see less focus on purpose-built venues and more attention and investment in community-based projects to reach a wider audience, particularly those with disabilities or from minority groups. (3 February 2011)

National Assembly for Wales Constitutional Affairs Committee: Inquiry into the drafting of Welsh Government Measures - Lessons from the first three years: sets out the findings from the Committee's inquiry into the way in which the Welsh Government drafts Assembly Measures. It calls for an additional layer of scrutiny in order to improve the standard of legislation going through the National Assembly for Wales, with a new "White Paper" stage in advance of publishing a proposed Measure, in which the Assembly sets out very clearly why the new law is needed and why the policy it seeks to achieve cannot be achieved through other action. (3 February 2011)

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

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