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 Services    Executive Arrangements
   Children's Services    Housing
   Council Tax    Procurement
   Equality and Discrimination    Wales


Adult Social Services

Office of Fair Trading: Evaluating the impact of the 2005 OFT study into care homes for older people: independent evaluation by GHK Consulting of the OFT's 2005 market study into care homes for older people. The research finds that there have been improvements in the provision of information to consumers. It estimates the quantifiable benefits to consumers from the market study to be in the region of £6m - 10m per year, with further evidence of other, non-quantifiable, benefits including on information provided to consumers. However, there is room for improvement with only 60%of care homes providing information to residents on complaints procedures. The evaluation also highlights the need to increase consumer awareness of relevant information, such as inspection reports, contracts and other sources of information when deciding on a care home. (6 May 2011)

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

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Children's Services

Ofsted: Children's services assessment for 2011: this document provides guidance for local authorities on Ofsted’s children’s services assessment for 2011. It outlines the arrangements for the annual assessment this autumn and highlights the changes that have been made following the evaluation of the 2010 process. (27 April 2011)

R (TG) v Lambeth LBC; Shelter (Intervener) [2011] EWCA Civ 526 (CA): TG appealed against the High Court decision that he was not a "former relevant child" of the Council within the meaning of s.23C(1) of the Children Act 1989 for the purposes of leaving care support. The Council had provided accommodation for TG for about seven months when he was aged 16 - 17. The accommodation was ostensibly provided by the Council as a local housing authority pursuant to its interim duty under s.188 of the Housing Act 1996, but it conceded that "in all probability" the accommodation should have been provided by it as a children's services authority under s.20 of the 1989 Act rather than by it as a housing authority. The issue on appeal was whether the accommodation should be treated or deemed to have been provided under s.20.
The court held, allowing the appeal, that the phrase "a child in need" in the 1989 Act was a term of art which triggered duties that were the responsibility of Children's Services. Having concluded that TG was a child in need, the social worker should have referred him to Children's Services. By providing TG with accommodation under s.188 of the 1996 Act, and failing to refer him to Children's Services, the Council had failed to follow the relevant statutory guidance. The crucial issue was whether the accommodation provided under s.188 of the 1996 Act should be treated as having been provided under s.20 for the purposes of determining whether the local authority looked after him within the meaning of the 1989 Act. The judge had erred in holding that TG had to show that Children's Services acted in the ordinary course and that peripheral attention of a social worker in a different team was insufficient: she was the "eyes and ears" of Children's Services and her actions should properly be imputed to the department.
The court noted that the serious absence of coordination between the Council's Housing and Children's Services departments was positively unlawful. Evidence suggested that a number of vulnerable children were suffering from a failure of coordination between local authorities' departments; it recommended that local authorities take urgent steps to remedy any such failures. (6 May 2011)

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

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Council Tax

DCLG: Residents go compare - Who pays for local government: the Government has published new figures showing the average council tax per head for 2011-12, together with a council tax 'heat map' that shows how each resident in different parts of the country contributes in council tax, and how much they conversely receive in central government grant. This press release summarises the figures and provides links. (13 April 2011) 

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

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Equality and Discrimination

Government Equalities Office: Equality Act 2010 - Public Sector Equality Duty what do I need to know? A quick start guide for public sector organisations: this short guide is intended to help public sector organisations understand the Public Sector Equality Duty, which came into force on 5 April 2011. It replaces previous guidance published on 12 January 2011. (3 May 2011)

Equality Act 2010 (Guidance on the Definition of Disability) Appointed Day Order 2011
(SI 2011/1159)
: this Order appoints 1 May 2011 as the day for the coming into force of the Guidance on matters to be taken into account in determining questions relating to the definition of disability. The guidance provides practical guidance on matters to be taken into account when considering whether a person is a disabled person for the purposes of the 2010 Act. It replaces the 2008 guidance issued under the Disability Discrimination Act 1995. (26 April 2011)

Equality Act 2010 (Specification of Relevant Welsh Authorities) Order 2011 (SI 2011/1063 (W.154)): this Order, which came into force on 4 April 2011, amends the list of authorities specified in Part 2 of Sch.19 to the Equality Act 2010 that are subject to the public sector equality duty. These authorities are also subject to specific equality duties imposed under the Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011/1064 (W.155)). (3 April 2011)

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

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Executive Arrangements

Bevan Brittan: Hung councils and Strong Leaders - Once the count is completed: the strengthening of the position of Leader in the Local Government and Public Involvement in Health Act 2007 can give rise to real problems for councils where no party has an overall majority. In this Alert, we look at the challenges of electing a Leader where the May 2011 local elections result in a balanced council. (5 May 2011)

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

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AS v Camden LBC [2011] EWCA Civ 463 (CA): AS appealed against the decision that the Council had discharged its duty to house her pursuant to the homelessness provisions of Part 7 of the Housing Act 1996. AS was the carer for her father, who was not in good health. She lived with him and her sister in a 3 bedroomed private sector house. The Council offered them temporary accommodation in two separate flats in a building that had previously been used as a hostel, one to be occupied by AS and her sister, and the other by her father; the flats were some yards apart, but on the same floor. The Council notified AS that it considered that the flats were suitable accommodation for her and her household under s.193(5) of the 1986 Act. The issue on appeal concerned the type of accommodation which must be made available by a local housing authority to an applicant under Part 7 where one or more other persons normally resided with the applicant as members of his or her family. 
The court held, allowing the appeal, that on any ordinary use of language, the residents of two self-contained flats, however close are the flats to one another, who did not share any communal living areas, could not be said to be residing "with" each other or in occupation of one or other or both of the flats "together with" each other. The natural meaning of the language used in s.176 was that the policy was to be achieved by the provision of accommodation in which AS could reside "together with" those members of her family who normally resided with her, and not by the provision of two or more separate self-contained units of accommodation without any sharing of communal living areas. To strain the clear language of s.176 in order to enable housing authorities greater latitude in the management of their limited resources, by reducing the issue solely to one of suitability in the authority's view (subject to Wednesbury principles), would be wrong in principle, as a judicial modification of Parliament's policy. (20 April 2011)

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

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National Audit Office: Lessons from PFI and other projects: this report brings together findings from the NAO's five recent reports on PFI. It also draws on nine other NAO reports on non-PFI projects and the NAO’s wider experience of good practice across the public sector. It concludes that lessons from the large body of experience of using PFI can be applied to improve other forms of procurement and help Government achieve its aim of securing annual infrastructure delivery cost savings of £2bn - £3bon. Government should also do more to act as an ‘intelligent customer’ in the procurement and management of projects. The case for using private finance in public procurement needs to be challenged more, given the spending watchdog’s previous analysis that the cost of debt finance has increased since the credit crisis by 20% to 33%. Also, under the national accounting rules, privately financed projects will often still be off balance-sheet which may continue to act as an incentive to use PFI. The NAO concludes that, in the current climate, the use of private finance may not be as suitable for as many projects as it has been in the past. There has not been a systematic value for money evaluation of operational PFI projects by departments. There is, therefore, insufficient data to demonstrate whether the use of private finance has led to better or worse value for money than other forms of procurement. The NAO calls on the Treasury and departments to identify alternative methods for delivering infrastructure and related facilities services, building on the lessons learnt from PFI, to maximise value for money for government. (28 April 2011)

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

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Social Care Charges (Direct Payments) (Means Assessment and Determination of Reimbursement or Contribution) (Wales) Regulations 2011 (SI 2011/963 (W.137)): these regulations, which came into force in Wales on 11 April 2011, contain provisions regarding local authorities' determination of any contribution or reimbursement to be made by a person in receipt of direct payments under the Community Care, Services for Carers and Children’s Services (Direct Payments) (Wales) Regulations 2011. (29 March 2011)

Social Care Charges (Review of Charging Decisions) (Wales) Regulations 2011 (SI 2011/964 (W. 138)): these regulations, which came into force in Wales on 11 April 2011, provide for the review of charges imposed by local authorities on adult recipients of non-residential social care services under s.1 of the Social Care Charges (Wales) Measure 2010 and for the review of a local authority's determination regarding a reimbursement or contribution made under the Community Care, Services for Carers and Children’s Services (Direct Payments) (Wales) Regulations 2011. (29 March 2011)

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

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