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 Care    Education
   Audit    Equality
   Charging    Fire Authorities
   Children's Services    Governance
   Community Engagement    Wales
   Consultation

 

Adult Social Care

DH: Charging for residential accommodation guide (CRAG) 2011: guidance to local authorities on how to interpret and apply the National Assistance (Assessment of Resources) Regulations 1992 (as amended) when carrying out a financial assessment of a person for whom it is arranging residential care . (11 April 2011)

DH: Ordinary residence: guidance on the identification of the ordinary residence of people in need of community care services, England: revised guidance on how to decide where a person is ordinarily resident for the purposes of the National Assistance Act 1948 and certain other legislation. It includes the changes to the ordinary residence provisions introduced by the Health and Social Care Act 2008. The guide sets out how to identify where responsibility lies between local authorities with social services responsibilities for the funding and/or provision of care for people aged 18 and over who are assessed as needing social care services. (15 April 2011)

Buckinghamshire CC v Kingston upon Thames RLBC; SL (by her Litigation Friend the Official Solicitor), National Society for Epilepsy, and Secretary of State for Health (Interested Parties) [2011] EWCA Civ 457 (CA): SL suffered from epilepsy and had learning difficulties. She had a place in a care home in BCC's area that was funded by KRLBC. BCC appealed against the court's refusal to quash KRLBC's decision to move SL into supported housing in BCC's area. At her annual revieww, SL expressed the wish to move into supported housing, and she was transferred to a bungalow in BCC's area. The effect of the transfer was that SL became ordinarily resident in BCC's area and BCC became responsible under s.29 of the National Assistance Act 1948 for providing her with visiting care services. BCC argued that KRLBC had breached its duties to SL under s.47 of the NHS and Community Care Act 1990 as it had failed to consult BCC as part of the assessment.
The court held, dismissing the appeal, that although the financial burden of the placement would fall upon one local authority, the identity of the local authority on which the burden would fall was not to be a factor in the decision making process by another local authority. There was no legal basis upon which to establish a duty of fairness by KRLBC to BCC to consult when making a decision as to the placement of SL. It was fairness to the service user that had to be at the centre of decision making; fairness to BCC could arise only if performance of that duty required a duty to consult BCC, and there was no basis to create such a duty. If any duty was to be imposed it should be created and its scope defined by statute or in directions from the Secretary of State. (19 April 2011)

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

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Audit

DCLG: Localising audit - delivering value for money for the tax payer: announces that consultants FTI have been appointed to advise on the financial implications of the options for transferring the Audit Commission's in-house audit practice to the private sector, including the possibility of mutualisation. FTI have been appointed on a four week contract following a competitive tender process. They will examine the implications associated with each of the main options for transferring the audit practice into the private sector advising on the value for money considerations and risk. (18 April 2011)

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

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Charging

Djanogly v Westminster City Council [2011] EWCA Civ 432 (CA): D appealed against the High Court's refusal to quash provisions in an Order made by WCC that related to charges for roadside parking of motorcycles within the City of Westminster. The charging scheme was originally introduced under an Experimental Order; following consultation, a permanent Order was made under s.45 of the Road Traffic Regulation Act 1984. D contended that the Order was unlawful as the charging element did not have the aim or effect of achieving a traffic management benefit as required by s.122 of the 1984 Act, and that it was based on flawed figures as WCC consistently overstated the projected cost of the charging scheme and understated the projected revenue in reports which preceded and influenced the making of the Order. The High Court held that the Order was lawful.
The court held, dismissing D's appeal, that the Order had been lawfully made. WCC had not always been consistent about the objectives sought to be achieved by charging; however, if the charging scheme did in fact secure the benefits referred to in s.122, it could not be said to be outside WCC's powers. The questions to consider were: whether there was a basis for reliance on increasing demand; whether the "fairness" consideration was relevant under s.122; and whether it was permissible, when considering these points, to consider the history going back to the Experimental Order, or to focus exclusively on the making of the permanent Order. Looking at these matters, WCC had vires to make the Order. WCC's ultimate decision-maker was not materially misled by the information with which he was provided. The financial material in the reports was simply forecasting, which was assembled in good faith. Errors were either rectified or were not of a nature or quality with the potential to vitiate the permanent Order. (19 April 2011)

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

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Children's Services

Ofsted: The voice of the child - learning lessons from Serious Case Reviews: this report provides an analysis of 67 Serious Case Reviews that Ofsted evaluated between 1 April and 30 September 2010. The report focuses on the importance of listening to the voice of the child. It provides an in-depth exploration of this key issue, drawing out practical implications and lessons for practitioners and LSCBs. (13 April 2011)

Audit Commission: Services for young people - Value for money self-assessment pack: this online tool helps those involved in commissioning or delivering services for young people review services in their area to better understand how well they deliver value for money and achieve the desired outcomes, so as to identify scope for improvement. It is intended to be a high-level diagnostic tool and can form the basis of scrutiny of services for young people. (19 April 2011) 

Ofsted: Conducting inspections of children's homes: this guidance is designed to assist Ofsted inspectors when conducting inspections of children’s homes. It applies to the inspection of all children’s homes, including secure children’s homes. It should be read in conjunction with the Framework for inspection and the Evaluation schedule and grade descriptors for inspections of children’s homes. (21 April 2011)

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

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Community Engagement

DCLG: Best value - new draft statutory guidance: seeks views on draft statutory guidance that sets out some reasonable expectations of the way best value authorities should work with voluntary and community groups when facing difficult funding decisions. The new guidance is issued under s.3 LGA 1999 and will replace the 2008 guidance on the duty to involve and the duty to prepare Sustainable Community Strategies, Creating Strong, Safe and Prosperous Communities. The consultation closes on 14 June 2011. (13 April 2011) 

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

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Consultation

Corporation of the Hall of Arts & Sciences v Albert Court Residents' Association [2011] EWCA Civ 430 (CA): the Corporation, which managed the Royal Albert Hall (RAH), appealed against the quashing of the Council’s decision granting its application for the variation of its premises licence under the Licensing Act 2003. ACRA was the residents' association for people living at Albert Court, which was very close to the RAH. The Council had sent circulars to local inhabitants inviting representations on the Corporation's application for variation but had not included ACRA or the individual residents of Albert Court. ACRA submitted representations late but the Council refused to consider them and granted the variation. The judge granted ACRA’s application for judicial review, holding  that, although the Council's refusal to consider late representations was lawful, the variation was unlawful because it had failed to fulfil ACRA's legitimate expectation that they would be notified of the Corporation’s application. 
The Court of Appeal held, allowing the appeal, that as the Council had not received any "relevant representations", within the meaning of s.35(5) of the Licensing Act 2003, by the due date, it had been under a duty to grant the variation and the Corporation had had an enforceable public law right to the grant. Once the conditions set out in s.35(1) were satisfied, it would go against the Corporation's entitlement for the variation to be undermined by the Council's failure to carry out a proper notification process. An otherwise legitimate expectation could not require a public authority to act contrary to statute. The Council's decision to exclude ACRA from its distribution of circulars was irrational but the remedy for that type of complaint was limited to an application for reconsideration under s.51 of the 2003 Act. The court could not subvert the statutory scheme by postponing the Corporation's application to give ACRA an opportunity to make timely representations. (13 April 2011)

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

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Education

DfE: A consultation on school funding reform - Rationale and principles: seeks views on the current "spend-plus" school funding system. It asks how changes could be made to result in a system that is fair, transparent and able to support a diverse range of school provision. This is the first part of a two-stage consultation process; taking into account these views, further proposals will be published for consultation later this year. The consultation closes on 25 May 2011. (13 April 2011)

DfE: Academies' pre-16 funding - Options for the 2012/13 academic year: this consultation runs alongside the one on school funding reform (above). It seeks views on options for changing Academy funding for academic year 2012/13 if school funding reforms are not to be in place for financial year 2012-13.  The DfE considers that the current method of replicating local authority formulae and calculating a grant in lieu of central services which a local authority would provide for a maintained school is too complex, lacks transparency, is prone to error and is administratively inefficient, particularly since the growth in Academy numbers.  The proposed option is to roll forward per pupil school budget share figures from the previous year. The consultation closes on 25 May 2011. (13 April 2011)

DfE: How to apply to open a Free School: updated guidance for teachers, charities and parents on the process for setting up new independent state schools, known as Free Schools. It includes details of the deadlines for applications to open Free Schools from September 2012, with links to forms and financial plan templates. (19 April 2011)

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

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Equality

R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) (Admin Ct): R and four others applied to quash the Council's decision to terminate funding for 13 voluntary advice agencies pending new commissioning arrangements coming into force in Summer 2011. R contended that the decision was unlawful as the Council had failed to have regard to its Public Sector Equalities Duty (PSED) when making the decision.
The court held, granting the application, that the original November 2010 decision was clearly defective as there was no evidence to suggest that the decision makers were aware of the duty and how it was engaged in these decisions at the time they took the decision. Although an Equality Impact Needs Assessment (EINA) had been carried out, the absence of reference to it showed that it formed no part of the councillors' material considerations even if they were aware that an EINA had been undertaken. By the time of the second decision (March 2011), each of the decision makers was aware of and had their attention drawn to the EINA and the need to take it into account. However, that decision was also defective as there were substantial defects in the EINA that had been prepared in November 2010; also, the duty was not merely to have regard to the EINA but to have due regard to the PSED and the particular needs as summarised by the judge. The judge agreed that the Council did not have a duty to fund these services and in a pressing financial climate difficult choices had to be made; however, the Council could only resist the challenge on this ground if they had complied with their PSED, which they had not done. None of the reasons set out in the report were reasons to stop funding in the interim, and in particular there was no need to stop funding in order to start the recommissioning process.
The judge set aside the decision only so far as it related to the three service providers with whom the claimants were concerned but he would not grant any relief other than the general declaration that would have a wider impact. This was to ensure that current funding continued until the first of either recommissioning of services was operative or a lawful decision to terminate funding before recommission was taken having regard to the PSED. 
(31 March 2011)

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

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Fire Authorities

DCLG: Fire Futures report - Government response: this is the Government's response to the strategic review of the Fire and Rescue Service that aimed to shape the future structure and direction of the Fire and Rescue Service in England. It outlines how the Government intends to take forward with the sector the public service reform agenda in the context of fire and rescue services at the local level and in terms of national resilience. It provides a statement of the principles that are central to the future of the delivery of fire and rescue servicesand sets out how local decision making and restoring a focus on local communities will be at the heart of Fire and Rescue Service policy. (13 April 2011)

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

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Governance

Centre for Public Scrutiny: Accountability works!: this paper discusses the future of accountability in the public sector and highlights the need for robust local accountability arrangements to go alongside a reduction in central regulation and inspection. It identifies the many different forms of accountability and introduces the concept of a ‘web of accountability’ which supports a more collaborative approach to delivering local services and is a vital counterpoint to new service delivery models such as Total Place. The CfPS will later be publishing an Accountability Charter, which will allow public and private sector organisations to sign up to demonstrate their commitment to being held to account, and a summary of the responses received to this initial document. (15 April 2011)

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

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Wales

Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 3) (Wales) Order 2011 (SI 2011/829 (W.124) (C.33)): this Order brings ss.49 & 50 of the 2009 Act, relating to the provision of education and training for children and young people subject to detention, into force on 1 April 2011. (16 March 2011)

Social Care Charges (Wales) Measure 2010 (Commencement) Order 2011 (SI 2011/849 (W.126) (C.34)): the Social Care Charges (Wales) Measure 2010 provides for charging by Welsh local authorities for non-residential social care services. it includes a power to an authority to charge for that service such amount as the authority considers reasonable. This Order brings the Measure into force on 18 March 2011. (17 March 2011)

Community Care, Services for Carers and Children’s Services (Direct Payments) (Wales) Regulations 2011 (SI 2011/831 (W.125)): these regulations, which came into force on 11 April 2011, provide for the making of direct payments to a person for the provision of: community care services under s.46 of the National Health Service and Community Care Act 1990, services under s.2 of the Carers and Disabled Children Act 2000, or services for children in need, their families and others under s.17 of the Children Act 1989. They revoke and replace SI 2004/1748 (W.185). (18 March 2011)

Social Care Charges (Means Assessment and Determination of Charges) (Wales) Regulations 2011 (SI 2011/962 (W.136)): these regulations, which came into force on 11 April 2011, set out requirements that a local authority must comply with when exercising its discretionary power under s.1 of the Social Care Charges (Wales) Measure 2010 to impose a reasonable charge upon adult recipients of non-residential social care services. (29 March 2011)

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

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