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    Health and Social Care
   Children's Services    Leisure and Recreation
   Coroners    Localism Bill
   Economic Development    Police Authorities
   Equality and Human Rights    Regulatory Services


Adult Social Services

Law Commission:  Adult social care: this report makes recommendations for the reform of adult social care with a single, clear, modern statute and code of practice. The proposed reforms would give older people, disabled people, those with mental health problems and carers clear legal rights to care and support services and would also impose duties on local councils across England and Wales on providing services. The Law Commission's proposals include:
  • individual well-being to be the basis for all decisions made and actions carried out under the new regime, with statutory principles setting out a checklist of factors that must be considered before making a decision about a person;
  • giving carers new legal rights to services;
  • placing duties on councils and the NHS to work together;
  • a single, streamlined assessment and eligibility framework;
  • placing duties and powers on local authorities to protect service users from abuse and neglect; and
  • giving adult safeguarding boards a statutory footing.

The Government has stated that it will introduce legislation in 2012 to implement the accepted recommendations. There is also a summary of the report. (11 May 2011)

DH: Statement of Government policy on adult safeguarding: sets out the Government’s policy on safeguarding vulnerable adults. It includes a statement of principles for use by Local Authority Social Services and housing, health, the police and other agencies for both developing and assessing the effectiveness of their local safeguarding arrangements. It also describes, in broad terms, the outcomes for adult safeguarding, for both individuals and agencies and outlines the next steps.
The Care Services Minister has also announced plans to strengthen the protection of vulnerable adults by making it a legal requirement for all local authorities to have a Safeguarding Adults Board. (16 May 2011)

Commission on Funding of Care and Support: Public engagement exploring care and support funding options - report of findings: this research study prepared for the Dilnot Commission looked into the views of the general public and specific groups of people around how care and support should be funded in the future. It found that while the majority of people believe that both the Government and the individual have a responsibility to contribute to long-term care costs, they want clarity on exactly what they will be expected to pay, along with simple ways to support them in planning for this. The main concern was that whatever the final settlement, it must be sustainable to allow them to plan ahead. (18 May 2011)

Draft Contracting Out (Local Authorities Social Services Functions) (England) Order 2011: this Order, which is scheduled to come into force on 1 August 2011, permits specified social services functions to be contracted out to third parties by councils participating in two government funded pilot programmes - adult social work practice pilot schemes and right to control pilot schemes. (11 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

DfE: The Munro Review of Child Protection: Final report - A child-centred system: this report finds that local areas should have more freedom to design their own child protection services and that a ‘one-size-fits-all approach’ to child protection is preventing local areas from focusing on the needs of the child. The report contains 15 recommendations to help shift the child protection system from one that is over-bureaucratised and concerned with compliance to one that keeps a focus on whether children are being effectively helped and protected. In particular, Professor Munro states that:

  • local services that work with children and families should be freed from unhelpful government targets, national IT systems and nationally prescribed ways of working; instead, they should be free to re-design services that are informed by research and feedback from children and families, and that pay more attention to the impact on children’s safety and welfare;
  • each local authority should designate a Principal Child and Family Social Worker to report the views and experiences of the front line to all levels of management.  At national level, a Chief Social Worker would be established to advise the Government on social work practice;
  • there should be a duty on all local services to coordinate an early offer of help to families who do not meet the criteria for social care services, to address problems before they escalate to child protection issues; and
  • Ofsted inspections of children’s services should add more weight to feedback from children and families, directly observe social workers’ interaction with children and families, as they do when inspecting schools, and pay more attention to whether children have benefited from the help given. 

(10 May 2011)

Ofsted: Conditions of registration for all regulated social care services and categories of registration for children’s homes and voluntary adoption agencies: this guidance sets out Ofsted’s approach to setting conditions of registration for children’s social care services under the Care Standards Act 2000 (Registration) (England) Regulations 2010. It replaces all previous Ofsted guidance on setting conditions of registration and categories of registration in social care. It covers children’s homes, residential family centres, adoption support agencies, voluntary adoption agencies and independent fostering agencies. (18 May 2011)

Ofsted: Children in service families - The quality and impact of partnership provision for children in service families: this report examines the quality of provision and outcomes for children and young people who are in families of service personnel living in England or abroad. In particular, it looks at the support provided by a sample of schools, local authorities and other agencies to enable children and their families to cope with the experience of geographical mobility and the deployment of family members who are serving within the Armed Forces. It finds that service children who face regular moves from home and school can suffer high levels of anxiety and stress, especially when their parents deploy to armed conflicts overseas. This problem is exacerbated because systems of transfer of children's records between schools are not always properly coordinated. (20 May 2011)

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

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MoJ: The draft charter for the current Coroner Service: seeks views on a proposed Charter for the current Coroner Service. The consultation is aimed at coroners, coroners' officers, voluntary organisations who deal with bereavement, local authorities, bereaved people and all those who have an interest in the Coroner Service. The Charter is intended to help those who come into contact with the current coroner system by setting out the service standards that bereaved people, witnesses and others should expect to receive. The Charter also sets out how people might complain if that public service is not delivered. The Charter applies to the coroner service as it currently operates under the Coroners Act 1988 and the Coroners Rules 1984. Comments are required by 5 September 2011. (19 May 2011)

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

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Economic Development

DCLG: Community Infrastructure Levy – an overview: the Community Infrastructure Levy (CIL) came into force in April 2010. It allows local authorities to raise funds from developers undertaking new building projects in their area. This can be used to fund a wide range of infrastructure that is needed as a result of development, e.g. new or safer road schemes, flood defences, schools, hospitals and other health and social care facilities, park improvements, green spaces and leisure centres. This updated document sets out the purpose of the CIL and how it is intended to operate. It explains the key features of the new charge, its rationale, purpose and how it will work in practice. (9 May 2011)
DCLG has also issued an invitation for local planning authorities that wish to become Community Infrastructure Levy Front Runners in Round 2 of this project. Applicant authorities must not only be committed to introducing the levy in their local area, but also keen to demonstrate what planning, and in particular the CIL, can achieve at the forefront of the Big Society. The closing date is 3 June 2011. (12 May 2011)

DBIS: LEP Start-up Fund: DBIS is inviting bids for funding from a new £5m Start Up Fund in 2011-12 that aims to help LEPs quickly put their core operational capacity in place and to become self sustaining. The fund is a one-off pot of money for such things as office rental and equipment, training, and engaging with the wider business community. Partnerships that already have these functions in place will not be able to bid for a share of the fund. The bids need to demonstrate that they can bring in other sources of funding as well, and that they have a plan to become self-sustainable. This web page contains links to guidance notes and the application form. The closing date for applications is 30 June 2011.
DBIS has also launched an online Toolbox which provides comprehensive information on economic development activity across government departments, and ideas for strong partnership/government working. (12 May 2011)

DBIS: High street review: announces that Mary Portas has been appointed to lead an independent review into the future of the high street, looking at what government, local authorities and businesses can do to promote the development of more prosperous and diverse high streets. It will also form part of the Government’s wider Growth Review which is examining how to remove the barriers to achieve strong, sustainable and balanced growth that is more evenly shared across the country and between industries. Mary Portas will present her report in Autumn 2011. (17 May 2011)

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

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DfE: 2012 Free Schools application window now open: announces that groups that want to open Free Schools in September 2012 can now submit their detailed plans to the DfE using the new more streamlined, efficient and competitive process. The DfE will also consider applications from people who want to set up age 16-19 Free Schools, schools that cater specifically for children with special educational needs and schools that offer alternative provision. The DfE has also updated the information on groups that applied under the first system. Details of how to apply are on the DfE website. (16 May 2011)

Ofsted: School governance - Learning from the best: this report aims to help all governing bodies to become excellent by showcasing examples of highly effective governance that is strengthening leadership and contributing to improved outcomes. It looks at the principles and practices that contribute to outstanding governance in 14 schools and reports what outstanding governing bodies, and the headteachers of the schools they serve, contribute towards their effectiveness. It includes case studies that reflect something of the character of the governing bodies and how they have approached aspects of their work. (18 May 2011)

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

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Equality and Human Rights

Equality and Human Rights Commission: Human rights at home - Guidance for social housing providers: this guidance explains how human rights law can help Britain's social housing providers deliver the best possible service to tenants. It gives practical advice on how the Human Rights Act 1998 relates to issues including allocation of housing, the terms of tenancy agreements, repairs and maintenance, and anti-social behaviour. It shows that respecting the Human Rights Act makes business sense for social housing providers, as it will help them to avoid complaints that could lead to expensive legal proceedings from tenants or criticism from the relevant regulators that could damage their reputation. (19 May 2011)

R (W) v Birmingham City Council [2011] EWHC 1147 (Admin) (Admin Ct): W and three other severely disabled residents applied to quash the Council's decision to change its Adult Social Care policy so that as from 1 April 2011 it would only fund individual budgets to meet those needs which were assessed to be "critical", instead of the current eligibility criteria of "substantial" or "critical". W contended that in making the decision the Council had failed to have due regard to the disability equality duty under s.49A of the Disability Discrimination Act 1995. Prior to making the decision, the Council had carried out an Equality Impact Needs Assessment and conducted a number of consultations with the public and various organisations.
The court held, allowing the claim, that the Council's decisions regarding its new Adult Social Care policy were unlawful and could not stand. The Council had failed at the relevant meetings to focus on the questions which were required to be asked when considering whether the impact on the disabled of the move to "critical only" was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere. It was difficult to see how "due regard" could be paid to the matters identified in s.49A without some attempt at assessing the practical impact on those whose needs in a particular respect fell into the "substantial" band but not into the "critical" band. The decision to consult "on broad options" required the Council to consider a subsidiary question as to whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with "substantial" needs, and in order to have "due regard" it needed to consider whether the answer to that subsidiary question was consistent with its duty under s.49A. Throughout the process the Council was considering how to address the needs of the disabled so in that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s.49A duty; however, that was not the same thing as doing what s.49A sought to ensure, namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality. Conspicuously absent from the material before Cabinet was any express statement that Cabinet must consider whether s.49A required it to take the course of recommending to full council that further spending resources be allocated to the Directorate, in particular because of the potential severity of the impact of the proposed move to "critical only". In addition, the consultation process had not complied with what the law required. Just as the decision making process failed to address the right questions, the same was true of the consultation process. There were additional features of the consultation process which were troubling and there remained considerable scope for confusion on the part of those to whom the consultation had been addressed, particularly that consultees did not have the opportunity to assert that the true sum involved in retaining "substantial" as the criterion for eligibility was a sum which could be properly found by making savings elsewhere. (20 May 2011)

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

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DCLG: Ten ways to tackle council fraud and recover £2bn a year: DCLG has published a new ten point counter-fraud blueprint for tackling criminals and dishonest people who are costing the country billions of pounds in fraudulent local government claims. Compiled by the National Fraud Authority, the recommendations include:

  • using credit rating agencies to stop tax evasion and benefit fraud;
  • staff background checks to prevent fraudsters and organised criminals infiltrating key posts; and
  • following best practice to drive down housing tenancy and single person discount fraud, as set out in a new Housing Tenancy Fraud Guide.  

(11 May 2011)

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

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Health and Social Care

LGA: Integration this time? Liberating the NHS and the role of local government: this report summarises findings from an historical overview of arrangements and experiences of joint working between local government and the NHS since the NHS was founded in 1948. This overview generated 10 ‘principles of integration’ which are then used as a framework for analysing the relevant provisions of the Government’s current proposals. The results prove a good fit between the principles and proposals. It also examines some of the risks to the successful application of the emerging framework which arise from the implementation of the wider arrangements for commissioning and accountability in the NHS. (10 May 2011)

Centre for Public Scrutiny: Peeling the onion - Learning, tips and tools from the Health Inequalities Scrutiny Programme: sets out the findings of research into the role of Scrutiny in helping places better understand health inequalities and the actions that they can take to tackle these issues. (10 May 2011)

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

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Leisure and Recreation

DCMS: £10m fund to protect playing fields: announces a £10m fund to protect and improve sports fields across the country, as part of the Places People Play legacy programme. Sport England will fund five £2m funding rounds over the next three years, investing sums of between £20,000 and £50,000 in schemes such as buying new playing field land, improving the condition of pitches through drainage or bringing disused sports fields back into use. Sport England will support community and voluntary groups and local authorities to protect all funded playing fields by executing a legal charge on the site for a minimum of 25 years. Applications for Round 1 of Protecting Playing Fields should be submitted online to Sport England by 6 July 2011. (11 May 2011)

If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi

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Localism Bill

Localism Bill: the Bill has now completed its progress through the House of Commons, and has passed to the Lords. The 2nd Reading is scheduled for 7 June 2011. The latest version of the Bill is on the Parliament website, together with updated Explanatory Notes. (19 May 2011)
The LGA has produced a Briefing on the Bill's Commons Report stage that highlights its concerns with the Bill and parts it wants to see amended, particularly relating to the overly-prescriptive approach being taken by the Government, the complexities and bureaucracies around policies such as Neighbourhood Planning, elected mayors, referendums policy, and EU fines. (17 May 2011)

DCLG: Business Plan 2011-2015: this updated Business Plan sets out the DCLG's timetable for its programme of reforms, covering: decentralisation of power; community engagement, democracy and participation; transparency; housing; and planning. It also shows what actions have been completed, and includes new actions to reflect new policies including the Growth Review and the Social Mobility White Paper. (13 May 2011)

If you wish to discuss any of the items noted in this section please contact Bethan EvansOlwen Dutton or Peter Keith-Lucas

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Police Authorities

Home Office: Draft protocol for elected commsisioners: the Police Reform and Social Responsibility Bill, currently being debated in the House of Lords, gives Police and Crime Commissioners a number of statutory functions as part of their role to hold forces to account. These include setting the strategic direction and the budget, as well as holding the chief constable to account. This draft protocol sets out the Police and Crime Commissioners' legal duty to maintain an efficient and effective police force. It also sets out how they should provide the link between the police and the public, working to translate the legitimate desires of the public into action and their responsibilities for other areas, such as the delivery of community safety through bringing together community safety partnerships, and entering into agreements to deliver better value for money and better policing capabilities. (11 May 2011)

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

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Regulatory Services

DEFRA: Tough new licensing scheme for wild animals in circuses: announces the Government's response to the consultation on the welfare of wild animals in travelling circuses in England. Under the Performing Animals (Regulation) Act 1925, circuses that use animals have to register with a local authority. The Government proposes to introduce legislation under the Animal Welfare Act 2006 requiring any circuses in England that wish to have wild animals such as tigers, lions and elephants performing in them to demonstrate that they meet high animal welfare standards for each animal before they can be granted a licence to keep those animals. (13 May 2011)

DCLG: Freedom to fly - Pickles to cut red tape that stops the public from flying flags: the display of flags is controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783). Certain flags can be flown without consent, while others can be flown with deemed consent which can be discontinued or restricted in certain circumstances. The Secretary of State has now announced proposals to to extend the categories of flags that may be flown either without consent (in Sch.1 Class H) or with deemed consent (Sch.3 Class 7A) so as to make it easier for people to fly flags of their choice without facing costly restrictions and red tape. The moves are intended to boost England's local and national identities and strengthen community cohesion. (14 May 2011)

DEFRA: Guidance for local authorities on the licensing of movements of livestock: the Standing Movements Arrangements (SMA), made under the Disease Control Order 2003, contain rules about the movements of cattle, sheep, goats, pigs and deer in order to help to prevent the spread or outbreak of animal diseases. Local authorities act as a "one-stop shop" point of contact for those in the local farming community needing to apply for licences to move under the SMA . This guidance explains the different types of permitted movement under the SMA, either under a General Licence or an Individual Movement Licence (IML). (16 May 2011)

Cabinet Office: Unshackling good neighbours: this report from the independent Red Tape Task Force, led by Lord Hodgson of Astley Abbotts, examines the myriad of rules and regulations which put people off giving their time and money to good causes and stifles the volunteer and charity sector in the UK. It makes six key recommendations to the Government to help reduce bureaucracy and red tape, including the development of a ‘reasonableness’ test to protect volunteers from liability for the consequences of well-intentioned voluntary acts. It also highlights some of the myths which have sprung up, e.g. ‘rules’ that children should not play conkers without wearing protective goggles or that pancake races are a health and safety hazard. (17 May 2011)

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

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