22/04/2011
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 |
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Audit |
Equality |
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Charging |
Fire Authorities |
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Children's Services |
Governance |
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Community
Engagement |
Wales |
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
