06/05/2011
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 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.
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.
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.
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.
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.
Housing
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.
Procurement
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.
Wales
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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