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:  

   Children's Services    Health and Social Care
   Defamation    Performance
   Education    Police Authorities
   Employment    Procurement
   Equality and Discrimination    Regulatory Services
   Finance    Wales


Children's Services

DfE: Family and friends care - Statutory guidance for local authorities: this guidance is aimed at lead members for children’s services in local authorities, Directors of Children’s Services, managers of services for children in need and looked after children and social workers and other social care staff working with children in need. It sets out a framework for the provision of support to family and friends carers, focusing on the implementation of the duties in the Children Act 1989 in respect of children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them. The guidance is issued under s.7 of the Local Authority Social Services Act 1970 and s.10 of the Children Act 2004, and local authorities and health partners/agencies in England must have regard to it when exercising their children's services functions. (16 March 2011)

DfE: Adoption National Minimum Standards: sets out the National Minimum Standards (NMS) applicable to the provision of adoption services. Together with the Adoption Regulations, they form the basis of the regulatory framework under the Care Standards Act 2000 for the conduct of adoption agencies and adoption support agencies. The NMS for adoption are issued by the Secretary of State under s.23 and s.49 of the Care Standards Act 2000. They are designed to be applicable to the variety of different types of adoption agencies and adoption support agencies, and aim to enable, rather than prevent, individual agencies to develop their own particular ethos and approach based on evidence that this is the most appropriate way to meet the child’s needs. (16 March 2011)

DfE: Children's homes National Minimum Standards: sets out  the National Minimum Standards (NMS) applicable to providers of children’s homes. Together with the regulations such as the Children Homes Regulations 2001, they form the basis of the regulatory framework under the Care Standards Act 2000 for the conduct of children’s home providers. The NMS for children’s homes are issued by the Secretary of State under s.23 of the Care Standards Act 2000. The standards are designed to be applicable to the wide variety of different types of children’s homes. They aim to enable, rather than prevent, individual providers to develop their own particular ethos and approach based on evidence that this is the most appropriate way to meet the child’s needs. (16 March 2011)

DfE: Fostering services National Minimum Standards: sets out the National Minimum Standards (NMS) applicable to the provision of fostering services. Together with relevant regulations, they form the basis of the regulatory framework under the Care Standards Act 2000 (CSA) for the conduct of fostering services. The NMS for fostering services are issued by the Secretary of State under s.23 of the CSA 2000. They are designed to be applicable to the wide variety of different types of fostering service. They aim to enable, rather than prevent, individual providers to develop their own particular ethos and approach based on evidence that this is the most appropriate way to meet the child’s needs. (16 March 2011)

DfE: The Foster Carers' Charter: sets out clear principles on how foster carers should be treated, recognises their invaluable work and aims to encourage more people to sign up to be foster carers. By signing this Charter the fostering service, child’s local authority and foster carer agree to reflect the spirit and intentions of the Charter in their actions. The Charter is backed up by new slimmed-down fostering regulations and guidance (see above) which make clear to local authority fostering services what their statutory duties are and reduce unnecessary burdens placed on them. (18 March 2011)

DfE: Delivering intensive interventions for looked after children and those on the edge of care or custody and their families: this prospectus invites local authorities and their partners to bid for financial and other support to implement a range of intensive, cost effective and evidence-based interventions for looked after children and children on the edge of care or custody who have complex and challenging behaviours which can result in out of home placements or placement breakdown. Local authorities and their partners will be able to apply for between £50,000 - £200,000 p.a. to test out new ways of delivering these interventions, with the aim of making them more widely used. The prospectus sets out why local consortia should consider becoming involved in the programme, what is expected of them if they do, and how to apply for funding. (18 March 2011)

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

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MoJ: Draft Defamation Bill: the MoJ has published a draft Bill that aims to modernise libel law by striking a balance between protecting people's right to free speech while enabling people who have genuinely been defamed to protect their reputations. The draft Bill includes:

  • a new 'responsible public interest' defence which can be used by defendants in defamation cases;
  • a requirement for claimants to demonstrate substantial harm before they can sue;
  • reducing so-called “libel tourism” by making it tougher to bring overseas claims which have little connection to the UK in the English courts; and 
  • a single publication rule, meaning repeat claims for libel cannot be made every time a publication is accessed on the internet.

A separate consultation paper includes questions on a number of other areas such as the role of the internet, and new court procedures to speed up cases and to cut court costs associated with libel actions by encouraging early resolution of key issues. The Government will then consider whether these measures should be included when the Bill is put before Parliament. The consultation closes on 10 June 2011. (15 March 2011)

If you wish to discuss any of the items noted in this section please contact Wesley O'Brien

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Qualifications and Curriculum Development Agency: Guidance for local authorities on organising, undertaking and reporting on monitoring visits: local authorities have a statutory duty to carry out monitoring visits to maintained schools in their authority before, during and after the test period, to ensure that test security and confidentiality are maintained and that tests are administered in accordance with the requirements set out in the 2011 Key Stage 2 guidance. QCDA will also make monitoring visits to maintained schools and participating independent schools. Academies may decide to be included in their local authority’s monitoring visit arrangements. If they do not, they will be subject to monitoring through arrangements made by QCDA. This guide provides information to enable local authorities to carry out the monitoring visits to Key Stage 2 schools. (14 March 2011)

School Finance (England) (Amendment) Regulations 2011 (SI 2011/778): these regulations, which come into force on 10 April 2011, substitute a new Sch.2 para.30 to the 2011 Regulations (SI 2011/371) regarding expenditure on library services for primary and special schools, in order to rectify defective drafting in those Regulations. (18 March 2011)

Ofsted: Inspection 2012 - Proposals for inspection arrangements for maintained schools and academies from January 2012: seeks views on the proposed new school inspection framework under which schools will be judged on a smaller number of core aspects than before, but in greater depth. The changes will result in more streamlined inspections, with fewer judgements and grades, leading to sharper reports on the quality of education provided by schools and the most important aspects of their performance. Subject to the successful passage of the Education Bill, the new arrangements will commence in January 2012. The consultation closes on 20 May 2011. (21 March 2011)

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

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HM Treasury: Hutton Review of Fair Pay in the Public Sector - final report: sets out proposals for a new settlement for public service leadership. The report makes 12 recommendations, including:

  • senior public servants' pay should be more strongly linked to their performance through a system of 'earn back' pay, under which executives will have an element of their basic pay 'at risk', to be earned back each year through meeting pre-agreed objectives;
  • once earn-back pay has been implemented at the most senior levels, Government departments and other public service organisations should consider offering this pay structure to middle managers on an opt-in basis;
  • all executives' full pay should be disclosed, along with an explanation of how it relates to job weight and performance, and made available online; 
  • the multiple of chief executive to workforce median pay should be published each year, and any changes explained; 
  • the Government should not benchmark senior public servants' pay against that of the Prime Minister, and should not impose a fixed limit on pay multiples (e.g. 20:1); and
  • to embed fairness principles and ensure fair process in executive remuneration, all public service organisations should adopt the Revew's proposed Fair Pay Code. 

(15 March 2011)

DCLG: Open public services: this Ministerial Statement announces that the Code of Practice on Workforce Matters in Local Authority Service Contracts (the Two Tier Code) is withdrawn with immediate effect. This means that, following a TUPE transfer, there will be no requirement for employers to offer new recruits terms and conditions that are “no less favourable” than those on which their TUPE transferred colleagues are employed. The abolition will not be applied retrospectively so existing contracts and the employment terms that flow from them are not be affected by the withdrawal of the code. (23 March 2011)

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

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Equality and Discrimination

Government Equalities Office: Equality Act 2010 - The Public Sector Equality Duty: reducing bureaucracy - Policy review paper: the Public Sector Equality Duty consists of a general duty plus specific duties set out in secondary legislation that are designed to help public bodies with the better performance of the general duty. The Government is reconsidering the draft Specific Duties Regulations (issued in January 2011) in the light of the policy objective of ensuring that public bodies consider equality when carrying out their functions without imposing unnecessary burdens and bureaucracy. This paper seeks views on new draft Equality Act 2010 (Specific Duties) Regulations 2011 that are designed to deliver a clear focus on transparency, freeing up public bodies to take responsibility for their own performance in delivering equality improvements and to publish the right information so that the public can hold them to account. It considers that this approach will be better for equality because it will focus on the delivery of results, not the performance of bureaucratic processes. Comments are required by 21 April 2011. (17 March 2011)

Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 (SI 2011/857): this Order brings into force on 6 April 2011 the Equality Act 2010 Codes of Practice on Services, Public Functions and Associations, Employment and Equal Pay. These Codes were issued under s.14(1) of the Equality Act 2006 and are designed to ensure or facilitate compliance with provisions in the Equality Act 2010 that came into force on 1 October 2010. (17 March 2011)

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

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DCLG: Review could end council dependence on Whitehall grant: announces the first phase of a review of council resources that will consider ways to establish a new system for business rates and Government grant that protects the interests of taxpayers, rewards local growth and job creation, and delivers a more self-sufficient income for councils. The Review will consider the way in which local authorities are funded, with a view to giving local authorities greater financial autonomy and strengthening the incentives to support growth in the private sector and regeneration of local economies. It will look at ways to reduce the reliance of local government on central government funding, increase local accountability and ensure that the benefits of economic growth are reflected in the resources authorities have. The first phase of Review will conclude by July 2011, followed by the necessary steps to implement the concluded reforms. The second phase will commence in April 2011 and will focus on community budgets. It will be taken forward in parallel with the continued roll out of these Budgets. Detailed terms of reference will be published shortly. The terms of reference are given in the Communities Secretary's Written Ministerial Statement. (17 March 2011)

HM Treasury: Budget 2011 - The plan for growth: presents the Coalition Government's Budget for 2011 that is based on its economic policy objective to achieve strong, sustainable and balanced growth that is more evenly shared across the country and between industries. Announcements of interest to local authorities include:

  • 11 Enterprise Zones to be created across England with simplified planning rules, superfast broadband and tax breaks for businesses. Local areas are invited to bid for a further 10 EZs - for details, see the Enterprise Zone Prospectus;
  • all successful bids for the Regional Growth Fund will be announced shortly and the second round will be launched in April 2011;  
  • a powerful presumption in the planning system in favour of sustainable development and a wide-ranging package of deregulatory measures, including piloting new land auctions, starting with public sector land and streamlining planning applications, iwith a 12 month guarantee for processing all applications and appeals and a fast track for major infrastructure projects (see DCLG's document Planning and the Budget);
  • further one-year increase of Small Business Rate Relief (see DCLG's Business Rate Information Letter 2/2011);
  • £100m of funding for local authorities to repair potholes caused by the exceptionally cold winter, funded from within existing budgets (see the Transport Secretary's letter to local authorities); and
  • acceptance of Lord Hutton’s recommendations on reforms to public service pensions as a basis for consultation, recognising that the position of the uniformed services will require particularly careful consideration and setting out proposals in the autumn.

See also the LGA's Budget 2011 - On the day briefing and the DCLG press release Radical changes in housing and planning will drive local growth. (23 March 2011)

DCLG: 100 per cent council tax freeze protection delivered across the country: announces that every English local authority has taken up the Government's offer to fund the first ever council tax freeze. Every eligible English local authority will now receive grant equivalent to them having increased their council tax by 2.5 per cent, to be paid in ten equal instalments from April 2011. No further capping action is required in 2011-12. See also the letter to Chief Executives and the spreadsheet setting out the amount of grant payable to each local authority. (23 March 2011)

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

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Health and Social Care

DH:  Quality Accounts: a guide for Overview and Scrutiny Committees: Quality Accounts are annual reports to the public from providers of NHS healthcare services about the quality of services they provide. Healthcare providers publishing Quality Accounts have a legal duty to send their Quality Account to the OSC in the local authority area in which the provider has its registered office, inviting comments on the report from the OSC prior to publication. This gives OSCs the opportunity to review the information contained in the report and provide a statement on their view of what is reported. Providers must send their Quality Account to the appropriate OSC by 30 April each year. This mini-guide has been produced specifically for OSCs and draws on relevant information already published in the Quality Accounts toolkit. (16 March 2011)

DH:  More cohesive care promised as councils back Health and Wellbeing Boards: announces that 134 local authorities have signed up to join a network of early implementers for Health and Wellbeing Boards (HWBs) that will strip away divisions between the NHS and local authorities. The early implementers will create ‘shadow’ HWBs in their council. The ambition is that all local authorities have shadow HWBs in place by April 2012, and fully-fledged HWBs will be up and running in April 2013 at the same time as GP Consortia take on responsibility for the NHS budget. The HWBs will be a forum for those who buy services across the NHS, public health, social care and children’s services, and for elected representatives and representatives from HealthWatch to come together to talk about how they can work with each other to better the health and wellbeing of people in their area. West Sussex PCT Chief Executive John Wilderspin will join the DH to support local implementation of the HWBs. (16 March 2011)

DH: Public Health England: this letter from Anita Marsland, Transition Managing Director, Public Health England (PHE), provides an update on the progress in the development of PHE. It includes a list of members of the Transition Executive Team to support the creation of PHE and the transfer of public health functions to local authorities. (17 March 2011)

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

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DCLG: Councils to get final performance reward grant: announces that the Government will be paying the final instalment of the reward grant for Local Area Agreements made before June 2008. £150m will be shared between 81 local authorities for meeting past targets. The payments will be unringfenced so they can use it in the best way to protect frontline services. Full details are in Circular no. 31/1848 Performance reward grant determination 2010-11. (17 March 2011)

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

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Police Authorities

Home Office: The Government's vision for collaboration in policing: the Policing and Criminal Justice Minster Nick Herbert has given a speech to the Collaboration in Policing conference in Coventry in which he talks about the Government's vision for police reform and the steps they are taking to drive collaboration forward. The Police Reform and Social Responsibility Bill currently before Parliament includes powers for police authorities to enter into collaboration agreements. (22 March 2011)

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

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OFT: Commissioning and competition in the public sector: this study forms part of the OFT's wider work in public markets. Drawing on case study research and engagement with a range of public and private sector parties involved in public services delivery, it identifies four competition themes and works up more detailed, constructive guidance so that commissioners and procurers are better equipped to leverage competition to create open and contestable public services markets that incentivise suppliers to increase efficiency, improve quality of service provision and innovate. The report argues that having an open, transparent and competitive tender process is not enough on its own to ensure that public services markets are open and contestable, both over the short-term and long-term. Achieving effective competition in public services must also involve: reducing barriers to entry and exit, encouraging a diverse supplier base and ensuring suppliers have the right incentives to make efficiency savings, raise quality and innovate. (15 March 2011)

Countryliner Ltd v Surrey CC (Unreported, CA): C, a bus operator, appealed against the striking out of its claim against the Council regarding a public tender for the provision of bus services. As part of the tender process, the Council required tenderers to supply evidence of their respective capabilities to implement the services, including relevant planning permissions. C submitted a tender naming one of its sites as the relevant bus depot but it did not have planning permission to operate a bus depot from that site and so could not provide evidence of relevant permission. The Council rejected C's tender. C claimed that the Council was in breach of the Public Contracts Regulations 2006 as it had not made the significance of the requirement for evidence of planning permission clear in its invitation material. The judge determined that C's claim disclosed no reasonable grounds for bringing the claim. C appealed, contending that it was not right to use the existence of a planning dispute concerning the relevant bus depot site as a reason for refusing its tender in light of the fact that it had been using that site as a bus depot for a number of years. 
The Court of Appeal held, dismissing the appeal, that there was little point in letting the case proceed where the judge had decided that there was, on the evidence, no reason to let it go to trial. The local authority's invitation documents were clear on their terms: there had to be documentary evidence demonstrating the relevant permission. It was not enough to say that because C had operated a bus depot for a number of years that there was a "planning dispute" - it could not provide the relevant evidence. (8 March 2011)

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

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Regulatory Services

DBIS: Sunsetting regulations - guidance: new domestic legislation that imposes a regulatory burden on businesses or civil society organisations is now required to include a review clause and a sunset clause to help ensure that the effect of regulation is reviewed on a regular basis, and that regulation is removed where it is no longer needed, where it is ineffective, or where it imposes disproportionate burdens. The inclusion of a sunset clause in a new regulation means that the regulation will expire automatically on a certain date unless positive action is taken to renew it. Sunset clauses should ordinarily take effect seven years after commencement unless some other time period is appropriate in a particular case. This guidance sets out the objectives for the new policy, the standards that will be applied across government, what departments will have to do differently, and how the new system will work with existing requirements. (23 March 2011)

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

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R (Brynmawr Foundation School Governors) v Welsh Ministers and Blaenau Gwent CBC [2011] EWHC 519 (Admin) (Admin Ct): the governors of an 11-18 co-educational foundation school applied for judicial review of the Welsh Ministers' decision to enter into an arrangement with the Council pursuant to s.83 of the Government of Wales Act 2006 (GOWA) under which the Council would exercise the function of consulting upon and making proposals about the provision of sixth form education at the school. The Council wanted to close all sixth forms in its area and replace them with a single institution. It submitted its proposal to the Welsh Assembly Government and published an informal consultation document listing three proposals. A report was produced which stated that the Government would have to delegate its powers under s.113A of the Learning and Skills Act 2000 (LSA) by virtue of s.83 GOWA before the Council could remove the school's sixth form. The Council wrote to the National Assembly for Wales asking if it recommended delegating its powers to it in respect of the reorganisation of sixth forms and also requested an assurance that the options put forward would be legally possible before the Assembly agreed to delegation. It was not until after formal consultation commenced that that assurance was given. The governors contended that the Ministers' arrangement was illegal and that the consultation process was predetermined.
The court held, dismissing the application, that  s.83(1)(b) GOWA empowered the Welsh Ministers to make arrangements for any "relevant authority" to exercise "any functions of the Welsh Ministers". The functions conferred on the Ministers by s.113A LSA were functions about which the Ministers could make arrangements with any local authority and they were not expressly excluded from the s.83 powers. The Council's decision to revert to an earlier proposal because the one proposed by the governors, which it had endorsed, was deemed by the Ministers not to comply with policy did not show predetermination. The consultation paper clearly raised and dealt with the governors' proposal, and also made it clear that the consultees could propose alternatives, which it would, and did, consider. They had not been denied any meaningful opportunity to express their views on that proposal. The Council was rguably entitled by virtue of the broad power to promote economic and social well-being in the Local Government Act 2000 to raise the issue of the school even if that could not at that stage be part of the formal statutory consultation period and its decision to launch consultations before responding to the assurance letter did not invalidate that which occurred thereafter. (9 March 2011)

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

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