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:  

   Access to Information    Highways
   Adult Social Services    Housing
   Children's Services    Police Authorities
   Equality and Discrimination    Powers and Duties
   Finance    Regulatory Services
   Health and Social Care    Traffic and Transport
   Bevan Brittan's Local Government Training Programme 

 

Access to Information

MoJ: Public sector data sharing protocol: this guidance aims to provide all public sector bodies with information and practical help when they start new projects which may involve the sharing of personal data. The annexes include a flow chart and Legal Guidance on Data Sharing with a summary of the legal framework that governs public bodies' rights and their responsibilities regarding data sharing. (29 June 2011)

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

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Adult Social Services

TG (by her litigation friend Ganfield) v North Somerset DC (Unreported) (Admin Ct): TG, who was profoundly mentally-disabled, applied for judicial review of the local authority's decision to reduce her direct payments and to replace them with services arranged directly by the local authority. The direct payments were formally received by trusts set up on TG's behalf. The local authority advised TG that her weekly direct payments were to be reduced by 33 per cent and paid to interim brokers, pending further investigations into concerns surrounding the suitability of the trustees, who were her parents and the litigation friends, to manage the direct payment funds, and a full review of her assessed needs. It later also informed TG that the reduced direct payments were to be replaced by services directly arranged by the local authority with the appointment of specific private service care providers. TG claimed that the local authority had breached its obligations under s.47 of the National Health Service and Community Care Act 1990 by reducing her direct payments without any reassessment of her needs, had failed to comply with its duties under s.49A of the Disability Discrimination Act 1995 to promote equality, and had failed to consult with TG's parents or carers under s.4(7) of the Mental Capacity Act 2005.
The court held, dismissing her application, that the local authority was entitled to terminate the direct payments as it had very serious concerns over the conduct of TG's litigation friends, and was under no obligation either to ensure that the same amount of money be paid to the interim broker, or to consult before fixing a different amount. It had taken care to maintain existing provisions subject to further change once a full review had been completed, and had not breached any of its procedural obligations in reaching its decision. It had continued the nature and level of TG's support following successive reviews of her needs and there was no basis, on the facts, for any suggestion that the local authority had failed to meet its obligation under s.49A. It was not appropriate to consult her parents given that their conduct in relation to the management of direct payment funds had been called into question. Although the carers' advice had not been distinctly sought, that did not amount to a violation of s.4(7). (1 July 2011)
The judgment is available on the Lawtel database (password required).

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

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Children's Services

Children's Workforce Development Council: Social Work Improvement Fund 2010 / 2011 - Report on 151 visits to local authorities: this report outlines the findings from visits to local authorities across England as part of a project to enable change and improvement within Children's Social Services. The study aimed to help the CWDC better understand how local authorities are dealing with the challenges they are facing. It was produced as part of the delivery of the Social Work Improvement Fund, which supports local authorities to reduce pressure on front-line social workers and build capacity for reform. (28 June 2011)

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

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Equality and Discrimination

Draft Equality Act 2010 (Specific Duties) Regulations 2011: section 153 of the Equality Act gives the Government a power to impose specific duties on certain public bodies to enable them to perform the Public Sector Equality Duty more effectively. These draft regulations have been laid before Parliament. Once in force, they will require public authorities in Great Britain to publish equality objectives, at least every four years, by April 2012, and also information to demonstrate their compliance with the Equality Duty, at least annually. There is also an Explanatory Memorandum. Note that these apply only to English authorities - specific duties in Wales came into force on 6 April 2011 (see SI 2011/1064) while specific duties that will apply to Scottish public bodies are still being decided. (28 June 2011)

G (by his Litigation Friend) v St Gregory's Catholic Science College Head Teacher & Governors [2011] EWHC 1452 (Admin) (Admin Ct): this case concerned the lawfulness of a school's application of its uniform policy regarding pupils' hairstyles. G, who was of African-Caribbean ethnicity, had not cut his hair since birth and wore it in cornrows (or braids) in accordance with his family tradition. The school's uniform policy prohibited cornrows and so he was not permitted to attend school so long as he kept this hairstyle. He claimed that the prohibition on cornrows was discriminatory on sex and on race grounds as it meant he was unable to take up his place at the school. 
The court held, allowing the claim in part, that there had been indirect race discrimination. The wording of s.1(1A)(a) of the Race Relations Act 1976 regarding "a provision, criterion or practice which put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons" indicated that what was recognised was more than a disadvantage and required a high standard. There was evidence that there were some people of African-Caribbean ethnicity who regarded the cutting of their hair to be wrong and so they needed it to be kept in cornrows, so the judge was satisfied that there was a group who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows. Family and social customs could be a 'part of ethnicity' within the meaning of the Act , and that was the case here. Nor was this indirect discrimination justified. However, there was no sex discrimination. A rigid appearance policy at a school was clearly entirely reasonable provided it complied with equality law. The different application of the rules regarding cornrows in the school's policy did not mean that boys were treated less favourably than girls. While it was not uncommon for African-Caribbean males to wear cornrows, 'not unusual' did not equate to conventional and an appearance policy such as the one operated by the defendants was not discriminatory even though it applied different rules to girls than for boys. (17 June 2011)

R (Tiller) v East Sussex CC (Unreported) (Admin Ct): T, who was a disabled person and a tenant of the local authority living in sheltered accommodation, applied for judicial review of the local authority's decision to change the way in which support services were offered to tenants. The services provided as part of the sheltered housing scheme included a 24 hour on-site warden. The local authority, following consultation, decided to replace this service with non-resident staff who would be available on-site during normal weekday working hours, and an off-site service available outside of those hours via a community alarm service. T contended that the local authority had acted in breach of its statutory duty under s.49A of the Disability Discrimination Act 1995 Act when taking the decision to change the way in which support services were provided to tenants. 
The court held, dismissing T's application, that the decision had been preceded by an extremely detailed consultation process and after careful and proper consideration by the authority. A great deal of care had been taken to address issues relating to s.49A of the 1995 Act and, although neither the 1995 Act nor the s.49A duty had been mentioned in the documents, due regard had been paid. It was obvious that a remote service could not be as good as an on-site service, but in the circumstances the tenants' concerns had been adequately addressed. The judge noted that although the Act and the s.49A duty should not be mentioned in decisions by way of mantra, the lcoal authority's failure to mention them had left the decision open to challenge. (29 June 2011)
The judgment is available on the Lawtel database (password required).

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

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Finance

DCLG: New Burdens doctrine - guidance for government departments: the Government's New Burdens doctrine commits the Government to fully fund new powers and duties imposed on local authorities. This new guidance sets out the factors that government departments should take into account when considering the costs and savings to local authorities arising from changes to policies and programmes. It states that the Cabinet has agreed that all new burdens on local authorities must be properly assessed and fully funded by the relevant department. The guidance sets out the process that departments must follow when considering new burdens, and includes the definition of New Burdens, the responsibility on departments for handling them, and the process which should be followed in all cases. (20 June 2011)

London Councils: Resourcing London - a model for retained business rates: sets out a detailed model for how business rates across the capital could be collected and shared between local authorities, stimulating economic growth as well as supporting vital services. Under London Councils' scheme, the £5.5bn collected annually could be used to fund local services and also do more to incentivise economic development. The model offers each London borough both an individual borough reward and a share of a London wide growth reward for encouraging economic growth; pools the rates collected across the capital, before re-allocating funding to each council based on their residents’ needs; and ensures a stable system which would bring businesses and local authorities together in a much closer working relationship to help develop stronger communities. (22 June 2011)

DCLG: Local authority capital expenditure and financing England - 2011-12 Individual local authority data forecast: DCLG has issued a series of spreadsheets that compile the forecast estimates of local authority capital expenditure and financing for the financial year April 2011 to March 2012. They include figures by service and category (e.g. housing, highways, recycling, education), where the financing is coming from (e.g. grants, lottery) and also prudential borrowing information. For each spreadsheet, it is possible to extract the figures for types of authorities (e.g. by region or tier) and for every individual authority. (28 June 2011)
DCLG has also published spreadsheets of Local authority revenue expenditure and financing England 2011-12 showing revenue account budgets estimates for each authority. (29 June 2011) 

DCLG: Community Budgets to be rolled out countrywide: announces that Community Budgets are to be rolled out across England, following the success of 16 pioneer areas that have put in place plans to support families with multiple problems. The Deputy Prime Minister has invited councils to sign up for support from voluntary and private sector experts in redesigning local services and using new and more effective ways to help such families, as well as deliver savings in local service costs. Around 50 more authorities will get Community Budgets this year and then at least a further 60 in 2012-13. In addition, four new Community Budgets pilots will be launched to explore how communities can have greater control over services through a single budget from Whitehall, as part the Government's review into local government finances. (29 June 2011)

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

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Health and Social Care

Update on the progress of HealthWatch: CQC reports that HealthWatch England and Local HealthWatch will now be established from October 2012. This will give Local HealthWatch the opportunity to play a full role in clinical commissioning groups and health and wellbeing boards when they are set up. Local authorities and Local HealthWatch will take formal responsibility for commissioning NHS complaints advocacy from April 2013. (20 June 2011)

DH: Government response to the NHS Future Forum report: this document sets out the Government's detailed response to the NHS Future Forum's report on proposals for modernising the NHS. It outlines changes that the Government intends to make in line with the Forum's recommendations, including changes to patient accountability and public involvement. (20 June 2011)
The DH has also published Briefing notes on amendments to the Health and Social Care Bill which describe the purpose and effect of the amendments, following the structure of the Government response. (27 June 2011)
Bevan Brittan has issued an alert "Reforming the reforms" in which we comment on the new amendments to the Health and Social Care Bill.

DH: Local health profiles 2011: this statistical release draws together information to present a picture of health in each local area. There are 351 Local Health Profiles – one for each Lower Tier, Upper Tier, Unitary and Metropolitan District Authority in England. They are intended to be a valuable tool for local government and health services in helping them to understand their community’s needs, so that they can work to improve people’s health and reduce health inequalities. (28 June 2011)

DH: £1 million boost for Health and Wellbeing Boards: the Health Secretary has spoken at the LGA Conference about the critical role that Health and Wellbeing Boards (HWBs) will play in bringing together councillors, clinical commissioning groups and local communities to ensure patients and the public experience more joined-up health and care services in the future. He has also announced funding to to support the development of HWBs, that will be used create a learning programme, develop an interactive online forum, and support councillors. (30 June 2011)

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

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Highways

Kent CC v Lawrence [2011] EWHC 1590 (QBD): the council appealed against the county court's decision that it was liable to L for £5,000 damages for personal injury and consequential losses following a tripping accident. L had tripped over a manhole cover that protruded above the pavement. The judge held that the council had breached its duty to maintain the highway under s.41 of the Highways Act 1980. He found that the extent of the protrusion was at least 15mm, although the evidence was limited as the council's highways inspector, when making a site visit, had not brought a measuring instrument but gauged the height of the protrusion by placing his mobile phone along the edge of the manhole cover. The issue was whether the metal surround of the manhole cover was sufficiently "dangerous" to amount to a breach of s.41.
The court held, allowing the appeal, that the protrusion was not such that "a reasonable person would regard it as presenting a real source of danger". The judge had not misunderstand the nature of the statutory duty or applied the wrong test; however, he had taken into account irrelevant considerations in coming to his decision. The court had to make a judgment on reasonableness with regard, at least in general terms, to financial and other practical constraints. There had to be a balance between public and private interests, and highways authorities simply could not achieve perfection and provide over the thousands of miles of pavement for which they were responsible a surface "which is entirely free from all irregularities or changes in level at all". (22 June 2011)

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

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Housing

Coventry City Council v Vassall [2011] EWHC 1542 (Admin) (Admin Ct): the Council appealed against the magistrates' court's decision that V was not guilty of failing to give prompt notification of a change of circumstances that he knew would affect his entitlement to housing benefit and council tax benefit, contrary to s.112(1A) of the Social Security Administration Act 1992. V was in receipt of Jobseeker's Allowance (JSA), Housing Benefit and Council Tax Benefit (CTB), which he claimed at the job centre. He signed a declaration that he would inform the council of any changes in his circumstances which might affect his claim but the form gave no further details of how or where a change of circumstances had to be notified. He later told the job centre about a change in his circumstances and his JSA was terminated, but the staff there did not tell him that he needed separately to inform the Council's Housing Department of the change in respect of the other benefits, and he continued to receive them, resulting in him being overpaid £6,215.95 in Housing Benefit. The magistrates found that the case against V had not been proved beyond reasonable doubt and they acquitted him.
The court held, dismissing the Council's appeal, that the prosecution had failed to prove that, at relevant time, V knew that his move into full-time education would (rather than could) affect his entitlement to housing benefit, as required by s.112(1A)(c). The judge found that V was aware that his change of circumstance could affect his entitlement to benefits but he clearly did not know that it would. Having given notice to the job centre, he believed that he was continuing to receive housing benefit and CTB because he was entitled to them. A failure to notify was not necessarily the same thing as mere non-notification, and if Parliament had intended criminal liability in relation to this failure to have been strict, it could have used words to have made that clear, such as "knowingly or otherwise". Section 112(1A)(d) should be read as "he knowingly fails to give a prompt notification" of a relevant change of circumstance. On a review of principle supported by such authority as there was, s.112(1A)(d) was not intended as a strict requirement, and Parliament intended that a requirement for a mental element should be read in, although the prosecution did not have to go so far as to prove that the failure to notify was dishonest. (17 June 2011)

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

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Police Authorities

Home Office: Police reform to save billions: the Home Secretary Theresa May has outlined her plans to save £2.2bn p.a. across the police force. At the Reform summit on value for money in policing, she stated that savings will be made by introducing better procurement procedures, offering police forces more freedom to determine where money is best spent locally and demanding greater efficiency both on the frontline and in the back office. (29 June 2011)

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

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Powers and Duties

DCLG: Review of statutory duties placed on local government: DCLG has completed its review of local authorities' statutory duties that was undertaken earlier this year with a view to removing unnecessary, old and outdated duties. It has now published a summary of the review together with two spreadsheets setting out all the statutory duties that it has identified. These show that there are 221 duties "owned" by DCLG and 1,131 by other Government departments. DCLG has not yet said what it will do with this list, other than that the exercise has successfully enabled a clearer picture of the requirements on local authorities, and created a valuable record that had previously not existed. (30 June 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

DBIS: The future of the Local Better Regulation Office (LBRO) and extending the benefits of the Primary Authority scheme: seeks views on a new strategy for important elements of front line regulation with changes to the Local Better Regulation Office (LBRO) and to the Primary Authority scheme that it operates, in order to bring more consistent and targeted enforcement while reducing burdens for businesses and regulators alike. The consultation closes on 15 September 2011. (23 June 2011)

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

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Traffic and Transport

 DfT: The Blue Badge Scheme - local authority guidance (England): this non-statutory guidance provides local authorities with good practice advice on administering and enforcing the Blue Badge Scheme for disabled drivers. The guidance has been updated to reflect recent reforms to the Scheme; it replaces the previous guidance issued in 2008. (27 June 2011)

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

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Bevan Brittan's Local Government Training Programme

Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act.

Forthcoming seminars in 2011 include:

  • 13 September (Bristol) & 15 September (London): Procurement update
  • 21 September (London): Governance, service restructuring and social enterprise
  • 27 September (London) & 5 October (Birmingham): Outsourcing
  • 6 October (London): Education - where are we now?

Full details of our new Training Programme for 2011/12 will be distributed shortly - see our website.

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