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    Efficiency
   Audit    Elections
   Charging    Equality and Discrimination
   Children's Services    Finance
   Community Engagement    Human Rights
   Delivery of Services    Law Reform
   Development Control    Localism Bill
   Economic Development    Overview and Scrutiny
   Education    Standards
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

DH: Working for personalised care: a framework for supporting personal assistants working in adult social care: this framework sets out an approach to enable support for an evolving personal assistant (PA) workforce and their employers over the coming years. It aims to make it easier for people with disabilities to employ PAs to help them to live as full a life as possible. It includes a national toolkit with standard job description, templates for contracts and other legal aspects of employment, and an induction framework so all PAs have the same basic introduction to the role based on the Common Induction Standards developed by Skills for Care. (27 July 2011)

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

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DCLG: Armchair auditors should act on their rights to inspect Town Hall books: DCLG has launched an online search engine that enables local taxpayers to find out how they can inspect their council's detailed financial spending and ledgers under the Accounts and Audit (England) Regulations 2011. The regulations require every council to make its accounts available to the public for 20 days a year, including every invoice, payment and receipt registered in the council's ledgers. (22 July 2011)
The search engine is on the direct.gov. website; it is also available as a spreadsheet.

DCLG: Audit Commission to outsource audit practice next year: announces that, following the consultation on the local audit procedure after the abolition of the Audit Commission, the Government has decided that all of the Commission's in-house local public audit work will be outsourced to the private sector in the next financial year. The Commission will be running two outsourcing processes in parallel, one for principal local public bodies and another for the smaller bodies which fall under the limited assurance regime, following which private sector auditors will be appointed to all local public bodies. The contracts will start from 2012-13 and are expected to run for three or five years.  (28 July 2011)

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

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Local Government Ombudsman: Hull Council criticised for wrongly charging care homes for waste disposal: the LGO has issued a report on its investigation into a complaint that for many years the Council had wrongly charged care homes for disposing of waste. The Council changed its policy in April 2008 but refused to refund charges it had made before then. In one year the complainant said that the home he managed was wrongly charged almost £2,000. The LGO found that the regulations did not allow councils to charge care homes for disposing of waste (although there can be a charge for collecting waste) and that this was clear from a Government Circular issued in 1992. She concluded that the Council should refund the charges it had made to Mr N and to other care homes before April 2008 as it had no lawful power to make them. (14 July 2011)

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

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Children's Services

DfE: Children's homes data pack: this data pack is intended to help local authorities and residential care providers build a better picture of how children’s homes are being used. All local authorities now have a legal duty to commission sufficient good quality accommodation for looked after children. Local authorities and children’s homes providers need to work closely together to provide effective and stable placements for these children. The data pack gives local authorities and residential home providers new information on children’s homes including: the number of placements children have; how long they stay in residential homes; how different local authorities use children’s homes; and the characteristics of children who are living in residential care homes. The information should help local authorities when considering carefully the needs of looked after children in their areas. (18 July 2011)

MoJ: Strategy for the secure estate for children and young people in England and Wales: seeks views on a proposed strategy for for the organisation of the secure estate for youth offenders the years 2011/12 to 2014/15. It covers: principles and priorities governing the secure estate; developing enhanced units to better meet the particular needs of young people; reorganising the estate in response to decreasing demand; the regime for young people in custody; and the longer-term future of the secure estate. It is aimed at individuals and organisations with an interest in the youth justice system and youth custody in particular, including local authority children’s services managers, children's charities and related third sector groups, and co-commissioners in health and education. The consultation closes on 11 October 2011. (19 July 2011)

DfE: Government sets out vision to support parents and families: announces that nine local authorities will be the first to trial payment by results (PbR) for children’s centres. They will test rewards for reaching the most vulnerable families, improving family health and wellbeing, and raising attainment of children at age five. PbR will be trialled at two levels: National - DfE to local authority; and Local - Local authority to individual children’s centre providers. 
The announcement forms part of the Government's vision for Families in the foundation years that sets out how it plans to change the services available to parents from pregnancy until their child reaches the age of five.
DfE has also published Supporting families in the foundation years which describes the system needed to make the Government's vision for parents, children and families in the foundation years a reality and explains the role of commissioners, leaders and practitioners across the range of services for families in these years. it also provides the Government's response to three recent reports: the report of the independent review on poverty and life chances by the Rt Hon Frank Field MP; the Graham Allen Review on early intervention: the next steps; and Dame Clare Tickell's report on the Early Years Foundation Stage. (18 July 2011)

Ofsted: Arrangements for the inspection of local authority children's services: seeks views on proposals for the arrangements for inspections that will focus on the effectiveness of local authority and partners’ services for children who may be at risk of harm, including the effectiveness of early identification and early help, and on services for children in care. It proposes that inspection will look at all stages of a child’s experience from early intervention right through to when a child is referred to the children’s social care services and on to their exit from the child protection system. Direct observation of services in action, including interactions with children and families, will be a key part of the new system. Inspection will also consider whether the quality of early help could have prevented the child from entering the child protection system in the first place and the impact of the failure to provide such help might have had on the child. The new inspection arrangements will come into effect from May 2012. The consultation closes on 30 September 2011. (27 July 2011)

DfE: Individual budgets for families with disabled children: the Individual Budgets for Familes with Disabled Children pilot programme was commissioned to test whether the Individual Budget concept and approach worked in practice, and to what extent the approach was cost-effective. This report gives a detailed assessment of the progress made by the pilot sites over the original two-year programme. The report focuses on the means by which the pilots were set-up and delivered, and the resource and infrastructure requirements associated with the budget approach. (29 July 2011)

R (O) v Hammersmith & Fulham LBC [2011] EWCA Civ 925 (CA): O, aged 13, appealed against the judge's refusal to quash the local authority's decision not to send him to the residential school that his parents had chosen. O suffered from severe autism and ADHD. It was accepted that O was a "child in need" so that the local authority had a duty under s.20 Children Act 1989 to provide accommodation for him. O's parents considered that his needs could only be met if he lived in one place wherre he could be both cared for and educated, and they identified a school in Dorset as being a suitable establishment. The local authority decided that O should attend a local school and live in a small residential home near his family home. O contended that this decision breached his right to family life under Art.8 ECHR, and also that s.1(1) of the Children Act 1989 required the court to have O's welfare as its paramount consideration in determining the issues .
The court held, dismissing O's appeal, that there had been no breach of Art.8 ECHR. Where a local authority simply chose one way of meeting a child's needs rather than another, it could not be said to have interfered with the exercise by the child or the parents of their right to respect for their private or family life. The difference of opinion between the local authority and O's parents as to what was required to meet O's needs resulted from a different weighting of the various factors that had to be considered. The local authority's proposal was another way of meeting O's needs, and neither that proposal nor his parents' proposal could be rejected as misguided, impractical or inappropriate. While the interests of O were far from irrelevant, these were judicial review proceedings in which the court was determining a question relating to the activities of the local authority, not a question with respect to the upbringing of a child, and so s.1(1) did not apply. (28 July 2011)

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

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Community Engagement

DCLG: One year on - Snapshot of activity in vanguard areas: the Decentralisation Minister has reported back to the House of Commons on the achievements of the Big Society vanguards, in which local communities take forward innovative local projects which embrace Big Society principles. This document gives details of some exemplar community initiatives in three of the four vanguard areas: Eden Valley in Cumbria, Windsor & Maidenhead and Sutton. (18 July 2011)

DCLG: Our vision for safe and active communities - Government progress update: provides an update on the Government's progress in achieving Baroness Newlove's challenges to action set out in "Our vision for safe and active communities". That paper, published in March 2011, called for neighbourhoods to be seen as equal partners in resolving crime, anti social behaviour and disorder. In the update, the Champion for Active Safer Communities highlights where she is focusing her energies. She identifies her top three priorities to help people make a difference to their neighbourhoods: the availability of easy to access online information; a new drive for public sector volunteering; and the tackling of binge and underage drinking. (27 July 2011)

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

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Delivery of Services

Cabinet Office: £10million to kick start Big Society public services: announces the launch of the new Investment and Contract Readiness Fund to help charities and social enterprises take advantage of the opportunities arising from the Open Public Services White Paper and new types of social finance. The £10m programme will run for three years from April 2012. (25 July 2011)

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

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Development Control

DCLG: Draft National Planning Policy Framework – Consultation: seeks views on the draft National Planning Policy Framework (NPPF) that consolidates existing planning policies and guidance notes into one document. It sets out the Government’s key economic, social and environmental objectives and the planning policies to deliver them. At its heart is a presumption in favour of sustainable development, which it states is a “golden thread running through both plan making and decision taking”: local planning authorities should plan positively for new development, and approve all individual proposals wherever possible. The NPPF also sets out ten core land-use planning principles that should underpin both plan-making and development management and should be taken into account by all those engaged in the planning system. The NPPF will have the same legal status as current Government policy documents and local authorities should take the finalised NPPF into account when preparing their local and neighbourhood plans and policy. The consultation closes on 17 October 2011. (25 July 2011)

DEFRA: The registration of new town or village greens: seeks views on proposals to reform the system for registering new town or village greens under s.15 of the Commons Act 2006. It follows the Government’s announcement in the Natural Environment White Paper to introduce a Local Green Spaces designation through the planning system. The consultation sets out plans to reform the registration system so as to achieve an improved regulatory balance between protecting high quality green space valued by local communities and enabling the right development to occur in the right place at the right time.  It also seeks to reduce the burden on local authorities which are responsible for implementing it, and on landowners who are affected by applications. There is no intention to review sites already registered.  The consultation closes on 17 October 2011. (25 July 2011)

DCLG: Planning Guarantee and information requirements: this letter to Chief Planning Officers alerts them to the proposed new Planning Guarantee that will establish clear time limits within which an application should be dealt with by both the local planning authority and, where cases go to appeal, the Planning Inspectorate. The Government also plans to amend its policy and guidance so as to reduce the amount of information that is submitted alongside planning applications. It will consult in the autumn on both these proposals. In the meantime, the Government is seeking comments ahead of the formal consultation on what information is helpful and necessary. The closing date for comments is 31 August 2011. (29 July 2011)

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

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Economic Development

DBIS: Government renews focus on cities: announces new support for cities to drive growth and prosperity. Greg Clark has been appointed Minister for Cities to champion the economic, social and environmental role of cities and to be the first point of contact in understanding the challenges and opportunities for cities in creating growth and prosperity across the country. The Deputy Prime Minister will chair a Ministerial Group that will seek to develop new ideas for cities and consider the impact of existing policies. Lord John Shipley will also act as an adviser to Government on cities policy, drawing on his extensive experience as the Leader of Newcastle City Council. The Group will start by focusing on the eight Core Cities and their surrounding areas (Bristol, Birmingham, Leeds, Liverpool, Manchester, Newcastle, Nottingham and Sheffield), with a view to expanding to a broader group and identifying issues relevant to a wide range of cities. (19 July 2011)

DBIS: Local authority (district/unitary) areas covered by LEPs: spreadsheet listing the local authorities covered by each of the 37 Local Enterprise Partnerships. It also indicates any overlaps between adjacent LEPs. There is also a map of the LEPs. (21 July 2011) 

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

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DfE: Implementation of the 2010-11 review of education capital (the James Review): the Government has accepted the recommendations of the James Review on schools capital funding. This consultation seeks views on the most appropriate model for allocating and prioritising capital, as well as the suggested centralised approach for procurement and project management. The consultation closes on 11 October 2011. DfE will be consulting fully in the autumn on revising school premises regulations and guidance. (19 July 2011)

DfE: Priority School Building Programme: the Education Secretary has launched a new   Priority School Building Programme, described as a “privately financed school building programme”, to address schools in the “worst condition”. Further details of the programme will emerge in the coming weeks. Individual schools, academies and local authorities are all able to apply for funding. Applications should be made between 3 and 14 October 2011. Interested parties can register on the site from 25 July. Applications will be prioritised for funding over the next five years, so any local authority looking to receive funding within that timescale should make an application this year. Applicants will be notified in December 2011 as to whether they have been successful, with the first procurements commencing in early 2012.
The Education Secretary has also announced an extra £500m capital funding this financial year for those local authorities where rising pupil numbers is putting severe pressure on school capacity. Details of how allocations will be made will be provided over the summer and finalised in the autumn. (19 July 2011)
Bevan Brittan has issued an alert Government announces schools capital spending proposals that highlights a number of issues that local authorities will need to consider particularly carefully, both when considering any response in relation to the consultation document and also when planning schools’ capital provision in the future. 

DfE: A consultation on school funding reform - Proposals for a fairer system: this is the second stage of the DfE's consultation on reform of the funding system. It follows the earlier consultation in April on the high level principles of school funding reform. This consultation seeks views on proposals to reform the system so that it is simpler and more transparent. The proposals include introducing a new national formula so that money is allocated more consistently across the country, expanding the eligibility criteria of the Pupil Premium, and funding high need pupils and early education. The consultation closes on 11 October 2011. (19 July 2011)

DfE: Consultation on the basis for the decision on the appropriate amount of Academies Funding Transfer for 2011-12 and 2012-13: the Education Secretary has agreed to reconsider the appropriate reduction to local authority funding to be made to reflect the transfer of central services from local authorities to academies and Free Schools. This paper seeks views on the appropriate level and the proposed basis for calculation for the Local Authority Central Services Equivalent Grant (LACSEG) transfer in 2011-12 and 2012-13. The consultation runs for only four weeks - comments must be submitted by 16 August 2011. (19 July 2011)

DfE: Qualifications for 14-16 year olds and performance tables: seeks views on proposals to implement Professor Wolf's recommendations in his Review of Vocational Education (March 2011) that the Department should distinguish clearly between those qualifications, both vocational and academic, which can contribute to performance indicators at Key Stage 4, and those which cannot. The DfE is proposing to replace the current league table system with one which gives young people the opportunity to do vocational qualifications that are comparable with the best academic qualifications in terms of content, assessment, and opportunities to progress. The intention is that rom 2014, only GCSEs and valued vocational qualifications that meet strict new criteria will be recognised in the school league tables. Schools will retain the freedom to offer any qualification approved for 14- to 16-year-olds and teachers will still be able to use their professional judgement to offer the qualifications which they believe are right for their pupils, but only the most rigorous will count in league tables. The consultation closes on 30 September 2011. (20 July 2011)

DfE: Dealing with allegations of abuse against teachers and other staff - Guidance for local authorities, headteachers, school staff, governing bodies and proprietors of independent schools: statutory guidance on how to manage cases of allegations that might indicate a person would pose a risk of harm if they continue to work in regular or close contact with children in their present position, or in any capacity. Employers have a duty of care to their employees. They should ensure they provide effective support for anyone facing an allegation and provide the employee with a named contact if they are suspended. The guidance relates to all adults working with children and young people, whether in a paid or voluntary position, including those who work with children on a temporary, supply or locum basis. (12 July 2011)

DfE: Preventing and tackling bullying - Advice for school leaders, staff and governing bodies: this guidance outlines the Government’s approach to bullying, legal obligations and the powers schools have to tackle bullying, and the principles which underpin the most effective anti-bullying strategies in schools. It also lists further resources through which school staff can access specialist information on the specific issues that they face. The guidance replaces previous advice "Safe to learn: embedding anti-bullying work in schools". (18 July 2011)

DfE: Screening, searching and confiscation - Advice for headteachers, staff and governing bodies: this non-statutory advice explains schools’ powers of screening and searching pupils so that school staff have the confidence to use them. In particular it explains the use of the power to search pupils without consent and the powers schools have to seize and then confiscate items found during a search. The advice replaces the previous guidance "Screening and searching of pupils for weapons: Guidance for school staff". (21 July 2011)

Charities Act 2006 (Changes in Exempt Charities) Order 2011 (SI 2011/1725): this Order, which comes into force on 1 August 2011, confers exempt charity status on the governing bodies of foundation, voluntary and foundation special schools, on foundation bodies and on other bodies connected with such schools, and on sixth form college corporations. It also makes related consequential amendments to primary and secondary legislation. (14 July 2011)

Charities Act 2006 (Principal Regulators of Exempt Charities) Regulations 2011 (SI 2011/1726): these regulations, which come into force on 1 August 2011, prescribe the Secretary of State for Education (in England) and the Welsh Ministers (in Wales) as the principal regulators of foundation and voluntary schools, sixth form colleges and academies. (14 July 2011)

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

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Efficiency HM Treasury: Making savings in operational PFI contracts: this guidance is the final version of the draft guidance which was published in January 2011 that aimed to assist public sector PFI contract managers to identify and implement savings measures that would reduce costs while maintaining frontline services. Since the draft guidance was issued, four pilot cost savings reviews of operational PFI projects have been carried out. This finalised guidance draws together the findings of those pilots and provides an updated plan to deliver £1.5bn savings across the 495 operational PFI projects in England. Public sector authorities should also factor these recommendations in to future project procurements, and as far as possible to projects in the procurement pipeline. It states that three main areas of savings in operational PFI contracts are: 
  • effective management of contracts, e.g. through reducing wasteful energy consumption and through the public sector sharing in savings on insurance; 
  • making efficient use of space, e.g. from subletting or mothballing surplus building space; and
  • reviewing soft service requirements, so that the public sector does not buy more than it needs when specifying facilities management such as window cleaning and frequency of decoration.

HMT states that this announcement is one of a number of ambitious steps to secure better value for money in PFI contracts and it will continue to look for innovative ways to improve the delivery of private finance in the public sector. (19 July 2011) 

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

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Parliamentary Voting System and Constituencies Act 2011 (Repeal of Alternative Vote Provisions) Order 2011 (SI 2011/1702): this Order, which came into force on 8 July 2011, repeals provisions in the 2011 Act that would have amended the Parliamentary Elections Rules in Sch.1 to the Representation of the People Act 1983 to enable the use of the alternative vote system. The repeal follows the May referendum on the voting system for parliamentary elections. (7 July 2011)

Cabinet Office: £11 million saved as electors database plan abandoned: announces that the Government is abandoning plans to set up the Co-ordinated Online Record of Electors (CORE) database. The CORE was intended to provide a single source of electoral registration information, principally to help political parties who are required to provide information on the current status of a potential donor’s entry in the electoral register. It was established by the Electoral Administration Act 2006, but the provisions were never commenced and the legislation will now be repealed. The database would have been administered by a new independent public body at an estimated cost of £11.4m to build and £2.7m p.a. to run. (18 July 2011)

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

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Equality and Discrimination

Home Office: Equality Strategy: this strategy sets out the Government’s commitment to tackling the barriers to equal opportunities and social mobility. It sets the framework for how equality will be a fundamental part of the Government’s programmes across the UK. (20 June 2011)
Bevan Brittan has published an article Specific Public Sector Equality Duties in which Joanna Smart summarises what the Equality Act 2010 (Specific Duties) Regulations 2011 include and what they will mean for relevant public authorities.

Barnsley MBC v Norton [2011] EWCA Civ 834 (CA): N was employed by the Council as a school caretaker. His terms of employment required him to occupy the caretaker's house for the purposes of his employment. He was sacked in November 2009 on the grounds of his misconduct and the Council then sought possession of the house so that they could accommodate a new caretaker. The county court granted the Council an order for possession. N's daughter S had been born with cerebral palsy and had developed epilepsy as a baby, and it was accepted that S suffered from a disability for the purposes of the Disability Discrimination Act 1995; she also now had a young baby. N appealed against the possession order on the grounds that the Council had breached its duty under s.49A of the 1995 Act to take account of S's disabilities when deciding to bring and continue the possession proceedings.
The court held, dismissing N's appeal, that the s.49A duty applied widely and was not something which had to be considered only when a public authority was exercising functions that bore on the rights of a disabled person under some specific legislation. The section was entirely general and applied to the carrying out of any function of any public authority. Given that S's position could be critically affected by an order for possession, the Council was under a duty to have due regard to the need to take steps to take account of her disability under s.49A(1)(d). The council had breached its duty by failing fail to address it before commencing the proceedings, or at any stage during the proceedings. However, it was not appropriate to set aside the possession order. Once it was decided that there was no valid defence to possession, and the need for the school's need for possession was compelling, there was no reason to delay a possession order. The judge was entitled to trust the authority to deal with the consequences of that order by carrying out its duties to S under the housing legislation. The Council's duty under s.149 of the Equality Act 2010 to have proper regard to S's disabilities would come into play when considering her need for suitable alternative accommodation under Part 7 of the Housing Act 1996. (21 July 2011)

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

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DCLG: Local Government Resource Review - Proposals for business rates retention: seeks views on the Government's proposals to allow the local retention of business rates by councils and to let them borrow against future rate income through Tax Increment Financing. The key proposals are: 

  • A baseline level with top ups and tariffs to create a fair starting point for all; 
  • An incentive so all councils can grow; 
  • A levy to recoup disproportionate gain: this could vary according to each individual council's own circumstances and would be used to manage significant unforeseen falls in a council's business rates income; 
  • A reset button to ensure stability, allowing the Government to adjust top ups and tariffs to balance out changes in local circumstance; 
  • No change for business: rate setting powers will remain under Central Government control and the revaluation process will stay unchanged. National discounts and rate relief will continue to be supported; and
  • Tax Increment Financing that will allow councils to pay for future infrastructure developments by allowing them to borrow against projected rate growth.

The detailed mechanism will be set out later this year, along with the necessary legislation. The consultation closes on 24 October 2011. (18 July 2011)
DCLG has also published Proposals for business rates retention - a Plain English guide that explains the Government's proposals to change the way local government is funded by introducing retention of business rates.

National Audit Office: Formula funding of local public services: this report considers three formula-based grants under which £152bn (one-fifth of all government spending) was allocated in 2011-12, namely Primary Care Trust Allocations, Dedicated Schools Grant and Formula Grant. The NAO hopes that the reviews will provide an opportunity to ensure formulae are designed to reflect clearly prioritised objectives, to promote transparency and accountability. It finds that each of the formulae is grounded in an assessment of relative needs, but other aspects of their design differ. All of the examined funding arrangements include provisions to ensure funding stability, but adjusting formulae to ensure stability has, in practice, led to some local bodies being funded for extended periods significantly above or below needs-assessed levels. The Dedicated Schools Grant prioritises stability of funding by basing allocations on those of previous years but this approach is not responsive to changes in pupil characteristics, while the DCLG’s Formula Grant has become increasingly complex, hindering transparency. (20 July 2011)

DCLG: Equal pay capitalisation directions 2011-12 - Policy and procedures: updated guidance: DCLG has issued new guidance to local authorities for 2011-12 on how they can borrow against their assets to meet their equal pay compensation commitments. The guidance sets out the Government's policy, application assessment criteria and process timetables for issuing Capitalisation Directions. The deadline for applications is 16 September 2011. (27 July 2011)

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

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Human Rights

Thomas v Bridgend CBC [2011] EWCA Civ 862 (CA): T and others claimed compensation under Part I of the Land Compensation Act 1973 for alleged depreciation in the value of their houses attributable to noise and other nuisance from a new relief road. The road had been opened for public use on 9 July 2002 but was not adopted by the Council until more than three years later, so T's claim was excluded under s.19(3) of the Act. The delay in the adoption of the road resulted from the developer's failure to complete many required minor works. The judge dismissed T's argument that s.19(3) amounted to a statutory bar on their right to compensation that was incompatible with their right to peaceful enjoyment of their houses under Protocol 1 Art.1 ECHR.
The court held, alowing the appeal, that on the facts, an interference with T's peaceful enjoyment of their properties was established, sufficient to engage Protocol 1 Art.1. In deciding whether the proportionality test was satisfied, the court was entitled to treat the compensation rights created by the Act as part of the "fair balance" thought necessary by Parliament. Where a class of potential claimants was excluded from those rights, the court was entitled to inquire into the reasons for the exclusion, and ask whether it served any legitimate purpose, or led to results "so anomalous as to render the legislation unacceptable". It seemed likely that the three year time limit in s.19(3) had been designed to ensure that there was a sufficiently close link between the construction and opening of the road, and its adoption by the authority. Such a link was necessary to make it appropriate to categorise the construction of the road as a "public work", analogous to a road constructed by the highway authority itself, and so to justify a liability for compensation falling on the authority. Whatever its purpose, the operation of the provision in this case was truly bizarre: the diligent road-builder who completed his project in time was penalised by liability for compensation while the inefficient road-builder was rewarded by evading liability altogether. For the householders there was a double disadvantage: not only did they suffer the inconvenience and disturbance of a protracted maintenance period, but they lost their right to any compensation for the effects of the use which they are already experiencing. This result was so absurd that it undermined the fairness of the "balance" intended by Parliament and necessary to satisfy Protocol 1 Art.1. Once an interference with Protocol 1 Art.1 rights was accepted, the presence or absence of compensation was not a separate issue, but was an important element in deciding whether, in authorising the interference in the general interest, the balance struck by the state was fair. Here, there had been a breach of Protocol 1 Art.1. (26 July 2011)

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

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Law Reform

Law Commission: Eleventh programme of law reform: the Law Commission has announced its new programme of law reform projects. These include a number of topics relevant to local government: 
  • Data sharing between public bodies: clarifying the existence and nature of legal obstacles to data sharing;
  • Electoral law: rationalising the complicated framework of rules governing electoral processes and take account of advances in technology;
  • Misconduct in a public office: simplifying and clarifying this common law offence, and ensuring the law takes into account the fact that functions traditionally considered to be public in nature are now often discharged by private individuals and volunteers; and
  • Taxis and private hire vehicles: reviewing and simplifying the existing regulatory systems, removing geographical inconsistencies and modernising to reflect advances in technology..

The Commission will conduct this work over the next four years, alongside projects carried over from previous programmes and those referred to the Commission by Ministers. (19 July 2011)

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

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Localism Bill

Localism Bill - as amended in Committee: the Localism Bill has completed the Committee stage in the Lords and the Bill has been republished to include the agreed amendments. The Bill now contains 227 clauses and 25 Schedules – 12 more clauses than when it passed to the Lords. We have compared the text of Parts 1 - 4 and Sch.2 of the Bill as published in May when it passed from the Commons to the Lords with this latest version as amended in the Lords’ Committee. The main changes are: 
  • Local referendums: there is a new class of petition, Special Case Petition. If a petition is deemed to be Special Case, then the authority must first pass a resolution before a referendum is held. Also, the required percentage of electors who must sign a petition is 5% of the electors in that area taken as a whole or, in the GLA, 1% of electors in each London borough.
  • Assets of Community Value: the owner of the land is to be notified where, before the end of the interim moratorium period, a community interest group makes a written request for the group to be treated as a potential bidder. Also, local authorities have a duty to co-operate in carrying out their Community Value functions if any Community Value land falls across more than one local authority area.
  • Elected Mayors: many of these provisions have been deleted, so that the Secretary of State can no longer require an authority to change to having an elected Mayor, subject to a confirmatory referendum. The provisions about shadow Mayors and on mayoral management arrangements (which would have enabled the elected Mayor to be the Chief Executive) have also been removed.
  • Pay policy statements: an authority must now publish a pay policy statement on the remuneration of all its employees, not just its chief officers. The authority must also publish the disparity between low-paid and high-paid officers. These changes implement recommendations in the Hutton review.

The Report stage is scheduled for 5 September. It is very likely that the Bill will be further amended at this stage so this version is by no means the final text. (22 July 2011)

If you would like more details of the amendments, please contact Claire Booth.

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Overview and Scrutiny

LGO / CfPS: Aiming for the best - Using lessons from complaints to improve public services: guidance for councils focusing on the role of Overview and Scrutiny Committees (OSCs). The guide aims to help develop understanding about gaining customer insight from complaints to improve the planning and delivery of individual services or contribute to corporate learning and improvement. It is aimed at councillors and officers supporting OSCs, by reinforcing the active role they can play in this. It includes examples of practice from eight councils that all demonstrate the benefits of using complaints in a positive way. (25 July 2011)

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

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Standards for England: Annual report and accounts 2010-11: this publication details the financial accountability and performance for the Standards Board for England for 2010-11. It includes a note of the Government's intention to abolish the Standards Board regime through the Localism Bill, and sets out changes to its organisational structure and transitional arrangements in light of this. (18 July 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?
  • 11 October (Bristol), 12 October (Birmingham) & 18 October (London): Employment update
  • 12 October (London): Re-negotiating contracts (organised by LGG Training)
  • 10 November (London): How to be a Monitoring Officer

For a list of all seminars see our new Events Programme for 2011/12. Full details, along with information on how to book a place, will be posted on our website about 6-8 weeks ahead of the scheduled date. 

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