Authority Update

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 thetwo weeksup to12 August 2011. Items are set out by subject, with a link to where the full document can be found on the internet.


Claire Booth

Claire Booth

Professional Support Lawyer

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    Finance
   Adult Social Services    Highways
   Anti Social Behaviour    Human Rights
   Asset Management    Libraries
   Children's Services     Procurement 
   Community Engagement    Regulatory Services 
   Efficiency    Traffic and Transport
   Emergency Planning
   Bevan Brittan's Local Government Training Programme 


Access to Information

Cabinet Office: Making open data real: seeks views on the Government’s proposed approach for a transparency and open data strategy for public services that would create an enhanced right to data and a presumption of publication. The consultation closes on 27 October 2011. (4 August 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

SL v Westminster City Council; Medical Foundation and MIND (Interveners) [2011] EWCA Civ 954 (CA): SL appealed against the refusal of his application for judicial review of the Council's decision not to provide him with accommodation under s.21(1)(a) of the National Assistance Act 1948. SL was a failed asylum seeker who had been granted indefinite leave to remain. He was admitted to a psychiatric hospital where he was diagnosed as suffering from depression and post traumatic stress disorder. On his discharge, the Council provided him with assistance in the form of weekly meetings with a care coordinator, W, but refused to provide him with accommodation on the basis that he was not in need of care and attention within the meaning of s.21(1)(a), and therefore they owed him no duty under that subsection to provide residential accommodation. 
The court held, allowing the appeal, that SL was at all material times in need of care and attention within s.21(1)(a), subject to the interpretation of  "not otherwise available". The judge had understated the nature of the support provided by the Council through W. Care and attention within s.21(1)(a) was not limited to acts done by the Council's employees or agents, nor did the subsection envisage any particular intensity of support in order to constitute care and attention. SL had to show that the Council's determination was not open to a reasonable decision-maker but that test had been met. The support provided by the Council to SL qualified as care and attention. On the interpretation of "not otherwise available", the approach preferred in the case law was that care and attention was not "otherwise available" unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation. In this case, the question was whether it would be reasonably practicable and efficacious to supply the services to SL without the provision of accommodation, and in asking the question the assumption had to be made that SL was destitute. Taking this approach, there was only one sensible answer: given the evidence of SL's condition which was before the Council, it would be absurd to provide a programme of assistance and support through a care co-ordinator "without also providing the obviously necessary basis of stable accommodation". (10 August 2011)

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

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Anti Social Behaviour

DCLG: A new mandatory power of possession for anti-social behaviour: seeks views on proposals to add a new additional mandatory ground for possession for anti-social behaviour into Sch.2 to the Housing Act 1985 (secure tenancies) and Sch.2 to the Housing Act 1988 (assured and assured shorthold tenancies) so as to significantly reduce the length of the possession process for serious anti-social behaviour and provide faster relief for victims and witnesses. The Government's intention is that the necessary legislation be introduced alongside legislative changes required following the Home Office's recent consultation on reforming tools and powers to tackle anti-social behaviour. The consultation closes on 27 October 2011. (3 August 2011)

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

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Asset Management

Local Partnerships: Capital investment, regeneration and joint ventures - Guidance for local authorities: guidance on financing solutions for regeneration, development and rationalisation of public sector estate, including issues involved with establishing joint venture vehicles for these purposes. It has been developed as part of Local Partnerships’ work with the Capital & Assets Pathfinder Programme. (25 July 2011)
See also the Capital and Asset Pathfinder Programme – map of best practice that contains details of the 11 CAPP pathfinders and also examples of asset management best practice (also available as a spreadsheet).

DCLG: Capital and Assets Pathfinder Programme 2010-11 - Position statement: highlights how local areas can better manage their assets and explains how Government will help. It is intended to stimulate local authority led action. It follows on from the results of the Capital & Asset Pathfinder programme 2010-11 where councils and Whitehall worked together to make better use of assets. It found that on average 20% savings could be made by rationalising public assets or co-locating local services based on customer needs. The Communities Secretary suggests that public sector organisations, including councils, could publish registers of all buildings and land owned. Local people could use the lists alongside the Localism Bill's new community rights to protect local treasures. (5 August 2011)
DCLG has also published a clickable Public Sector Assets in England demonstration map that identifies property held by public bodies.

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

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Children's Services

Ofsted: An evaluation of approaches to commissioning young people’s services: sets out the findings from a survey that examined approaches to the commissioning of services for young people in 12 local authority areas, and reports on the experience of national organisations involved in this work. The survey found that local authorities are not always considering the voluntary and community sector, charities or other arms of the public sector, when commissioning services for young people. The report also identifies some of the difficulties being faced by local authorities and youth organisations. (8 August 2011) 

LGO: Investigation into a complaint re Kingston upon Hull City Council: the LGO has found serious failures by Hull City Council in the way it responded to child protection referrals of two children. The children’s aunt had complained to the LGO that the Council had failed to respond to reports that her nephew (aged 14) and niece (aged 11) were at risk living with their mother and her mentally ill, violent partner. After the first referral, the Council concluded that the children should remain at their mother’s with support, but it never provided that support. The niece lived with her aunt from the first referral but the nephew remained with his mother and her partner. Approximately six months after the first referral, the nephew was threatened with a knife by his mother’s partner. The neighbouring authority made another child protection referral to the Council but there was no response. The nephew then also moved in with his aunt and she made a formal complaint to the Council.
The LGO found maladministration by the Council in 7 areas. The Council accepted the LGO’s recommendations, including that it pay the aunt £7,665 – calculated as 25% of what she would have received as a ‘kinship carer allowance’ for the time that the children lived with her. (1 August 2011)

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

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Community Engagement

10 Downing Street: Public petitions website goes live: announces the launch of the Government's e-petitions website that enables the public to create a petition about government matters. Any petition that is backed by 100,000 signatures will trigger consideration for debate in Parliament. Government departments will moderate the petitions, with oversight from the Office of the Leader of the Commons. Any petition deemed to be libellous, offensive, duplicates existing open petitions or not related to government will be rejected. (29 July 2011)

DCLG: The use of restrictive covenants in the pub industry and their impact on local communities: seeks comments on the use of restrictive covenants which prevent pubs from reopening as community public houses following a sale, and the impact that this has on local communities. The responses to the consultation will be used by the Government to help assess whether it should change the use of certain restrictive covenants, to enable communities to make greater use of the new Community Right to Buy power in the Localism Bill. The consultation closes on 25 October 2011. (2 August 2011)

DCLG: Proposals to introduce a Community Right to Challenge consultation: Summary of responses: summarises the responses received to the February 2011 consultation on the provisions in the Localism Bill that would give communities the right to bid to run local services. The Government intends to set out the details of this Community Right in regulations that will be informed by these responses. (2 August 2011)

DCMS: Local TV - Pioneer locations: in July 2011, DCMS published a new framework for local TV which set out proposals to create a number of local TV content licences supported by a single multiplex operator. The new licensed local television services will benefit from access to sufficient broadcasting spectrum, appropriate prominence on electronic programme guides and will work within a new licensing regime regulated by Ofcom. DCMS has now published a list of 65 towns and cities across the UK that have the potential to receive a local TV service under the Government’s proposed framework. It seeks views on potential local TV licence locations and the order in which they could be awarded.  The local areas identified in this list can make the case for their town or city to be among the first of those selected to bid for a local TV licence. The consultation closes on 23 September 2011. (9 August 2011) 

DCLG: Proposals to introduce a Community Right to Buy - Assets of community value: Consultation - Summary of responses: in March 2011 DCLG consulted on the details of proposals in the Localism Bill to introduce a Community Right to Buy that will enable communities to identify local assets of community value and will give them the opportunity and the time to raise funds and make a bid to buy the asset if the asset comes up for sale. This document summarises responses received to that consultation. (12 August 2011)

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

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Cabinet Office: Francis Maude reveals £3.75 billion in savings: the Cabinet Minister has revealed that the Government’s efficiency programme has delivered £3.75bn of cash savings in the ten months from May 2010 to March 2011. The savings figures have come from efficiency and reform measures implemented across government, such as reducing discretionary spend, smarter procurement and reducing the size of the Civil Service, and have been independently audited. (1 August 2011)

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

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Emergency Planning

DEFRA: Flood and Water Management Act 2010 - What does the Flood and Water Management Act mean for local authorities?: the Flood and Water Management Act 2010 gives local authorities a new role to manage local flood risk in their area. This factsheet summarises the relevant provisions for lead local flood authorities. (22 July 2011)

GLA Environment Committee: For a rainy day - the Mayor's role in managing London's flood risk in case of severe rainfall: this report assesses London’s response to the danger from severe rain flooding, focusing on the Mayor’s strategic leadership role under the Flood and Water Management Act 2010. The report makes a number of recommendations as to actions that the Mayor could lead to address serious flooding risks London faces if there is severe rainfall. (22 July 2011)

DCLG: Pickles announces multi-million pound support package for local firms and families to rebuild their communities: announces a package of measures to help rebuild communities, open up shops and rebuild buildings which were damaged in the recent riots. The package of support includes:

  • a £10m recovery fund to help councils with the immediate costs of making their areas safe, clear and clean again; the scheme can also be used to support councils who use their powers to offer council tax discounts or council tax relief to those whose homes have been damaged but are still habitable;
  • a £20m High Street Support Scheme, funded jointly by DCLG and DBIS, available immediately, for the streets and areas where businesses were affected by the rioting;
  • seriously damaged homes and business properties will be taken off the respective valuation lists, removing any liability for council tax or business rates;
  • the High Street Support Scheme will help reimburse councils for rate relief for local firms; and
  • DCLG will meet the immediate costs of emergency accommodation for families who have been made homeless by the disturbances. 

Full details of the schemes will be announced this week. Councils should be able to make claims quickly and will receive funding through a direct grant.
DBIS has also announced details of public disorder support for businesses that includes advice on insurance and compensation under the Riot (Damages) Act 1886.
The Mayor of London has announced a £50m fund to help make major long term improvements to the capital’s town centres and high streets damaged by the recent disturbances. This is in addition to the Mayor's £50m Outer London Fund, designed to grow economic activity and drive employment in parts of London that are benefitting less directly from major infrastructure improvements. (11 August 2011)

DCLG: Planning support for businesses and shops: this letter to  local planning authorities asks them to consider the ways in which their planning powers can be used to support businesses and shops to restore premises which have recently suffered damage. It includes a flow chart showing the Local Development Order making process. (11 August 2011) 

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

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DCLG: Localising support for council tax in England: the 2010 Spending Review announced that the council tax benefit system will be localised from 2013-14 and expenditure reduced by 10%. The Government has since published the Welfare Reform Bill that provides for the abolition of council tax benefit. DCLG is now seeking views on its proposals for key elements of the framework for local support for council tax, to be established in a Local Government Finance Bill and in regulations. There will also be a new Government grant to local authorities, which they can take into account when setting the local scheme. The reforms will align benefits with the wider council tax system creating a simpler, streamlined system, reducing bureaucratic burdens and costs. They aim to help more people back into work while maintaining protections for pensioners, and also give councils stronger incentives to tackle benefit error and fraud. The consultation, which is part of the Local Government Resource Review, closes on 14 October 2011. (2 August 2011)

DWP: £4m boost for innovative projects to support Housing Benefit reforms: announces the ten successful projects that will receive a share of a £4m fund to provide innovative support to assist with the transition during Housing Benefit reform. (4 August 2011)

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

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R (Herron & Parking Appeals Ltd) v Parking Adjudicator; Sunderland City Council & Secretary of State for Transport (Interested Parties) [2011] EWCA Civ 905 (CA): H and others applied for judicial review of a parking adjudicator's decision to uphold 39 penalty charge notices (PCNs) issued in relation to alleged parking contraventions committed by them within a controlled parking zone (CPZ), which was operated by the Council. H contended that the CPZ was invalid and unlawful because its signposting did not comply with the Traffic Signs Regulations and General Directions 2002 (SI 2002/3113). They submitted that reg.4, which required that every part of every street must be marked with the signs (the single yellow lines etc), must be strictly construed. The Parking Adjudicator argued that the irregularities, even when viewed cumulatively, were trivial and so fell within the de minimis exception. The court dismissed H's application.
The Court of Appeal held, dismissing H's appeal, that a CPZ was to be treated as valid unless it could be said that in substance, because of the failure adequately to inform the road user, it could not be considered to be a valid CPZ. Reg.4 did not require that every part of every street was signed in the manner it specified. The fact that the form, size, colour and content of all road signs were tightly specified did not mean that the definition of a CPZ was to be so strictly construed as to read in words that were not there. Even where a statute was clear in imposing a duty, and did so in terms that were apparently mandatory, it would not necessarily be interpreted as invalidating steps taken by a public authority that were not in strict conformity with the duty. Applying this principle of statutory construction, the court rejected H's submission that any departure, other than one which was trivial, from the definition of a CPZ invalidated the CPZ.
Furthermore, the infringements were not infringements of the CPZ as such, but were infringements of the parking restrictions imposed by and contained in the applicable Traffic Regulation Order (TRO). The validity of that TRO was not challenged, and the restrictions it imposed were not dependent on the existence or validity of the CPZ. The enforceability of a TRO required that adequate notice of the applicable restriction was given to the road user. The test for invalidity was not "Are the irregularities trivial?", but whether there was substantial compliance with the statutory definition. If the motorist was adequately informed of the parking restriction, there was no good reason to render the restriction ineffective. (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

Equality and Human Rights Commission: Human rights - practical guidance: this new online resource aims to help public sector bodies and organisations carrying out public functions and advocacy. It focuses on nine public sectors areas: adult social care; children's services; health; housing; education services; local government; criminal justice, courts and prisons; policing; and immigration and asylum. It draws together learning materials about the human rights obligations of the public sector and how to successfully implement these. The materials include examples of how to consider human rights in public service delivery as well as case studies, informal guidance, inspection standards and impact assessments. (1 August 2011)

Manchester City Council v G and E (by his litigation friend the Official Solicitor) [2011] EWCA Civ 939 (CA): the Court of Appeal has upheld the Court of Protection's decision to depart from the general rule regarding costs of proceedings and to order that a local authority pay the costs of Deprivation of Liberty proceedings.
The local authority appealed against an order that it pay the costs of Court of Protection proceedings. E, who had severe learning difficulties, was living with his foster parent , F. After concerns were raised by E's school that F might be ill-treating E, the local authority removed E and placed him in a residential unit. F was then informed that the placement was permanent and she was not allowed to visit E. E's sister, G, obtained a declaration that  the local authority's action breached the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 and an order that E return to live with F. The judge stated that any ignorance of the local authority's staff as to the new legislation was no excuse; given the enormous responsibilities put upon local authorities under the Act, it was incumbent on the local authority's management team to ensure that their staff were fully trained and properly informed about the Act's new provisions and that if a local authority was uncertain whether its proposed actions amounted to a deprivation of liberty, it must apply to the court. He held that the local authority's blatant disregard of the processes of the 2005 Act and its obligation to respect E's human rights amounted to misconduct which justified departing from the general rule in Rule 157 of the Court of Protection Rules that there should be no order for costs, and he ordered the authority to pay G, F & E's costs.
The Court of Appeal held, dismissing the appeal, that the court was entitled to find that the local authority's conduct in removing E unlawfully and its late concession of unlawfulness amounted to misconduct so that a departure from the general rule was appropriate. (2 August 2011)
The judgment is available on Lawtel (password required).

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

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MLA / LGA: Future Libraries - Change, options and how to get there: Learning from the Future Libraries Programme phase 1: this publication is for leaders of councils, elected members, chief executives, corporate directors and senior managers who are reviewing their approach to the public library service. It sets out the learning from the Future Libraries Programme which supported 10 change projects involving 36 councils, helping them to innovate and develop robust solutions to the challenges they face. It details four options for helping to ensure the survival of libraries in the 21st century that have have been identified by the Future Libraries Programme pilots as excellent examples of innovation and creative partnership working. (8 August 2011)

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

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Cabinet Office: Procurement Policy Note - Modernising the public procurement rules: this note outlines the Cabinet Office Procurement Policy Team's strategy on influencing the European Commission's proposals for revised and updated Public Procurement Directives.  The Cabinet Office Minister, Francis Maude, is inviting  comments on the EC's Green Paper on simplifying and improving the public procurement rules. All feedback will be used to inform the Cabinet Office's reponse. (11 August 2011)

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

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Regulatory Services

DfT: Private hire vehicle licensing - guidance note: sets out the DfT's view of what is, and what is not, a private hire vehicle. It is designed to assist local licensing authorities in making licensing decisions and provide transport service providers with some clarity about whether they need to be licensed as private hire. It makes clear that  certain groups, such as childminders who drive children to and from school in their own vehicles and care workers who assist elderly people in their homes, are not classed as minicab drivers.  (3 August 2011)

HSE: Proposed replacement for the licensing regime for adventure activities established under the Activity Centres (Young Persons’ Safety) Act 1995 in England: seeks views on proposals for replacement arrangements for adventure activities. These arrangements are needed to implement the recommendation in the report Common Sense Common Safety to abolish the licensing of four specified adventure activities by the Adventure Activities Licensing Authority, and replcae with a Code of Practice. The consultation closes on 21 September 2011. (9 August 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

DCLG: High streets get boost from fairer parking: announces that the new draft National Planning Policy Framework, published on 25 July 2011, will abolish national restrictions on the number of parking spaces that a council is permitted to grant. Local authorities will be free to set their own parking policies based on local need, at a level that is sustainable for their own town centres, so as to encourage new investment in town centres, provide more jobs and encourage more charging spaces for electric cars. (1 August 2011)

HC Transport Committee: Bus services after the Spending Review: sets out the findings from the Committee's inquiry into the funding of bus services in England (outside London) as a result of the 2010 Spending Review.  The Committee found that extensive cuts to rural, evening and weekend bus services are damaging the ability of many people to participate in employment, education or voluntary work and to access vital services such as healthcare and retail facilities. It warns that even deeper cuts in bus services are likely in 2012-13, and it calls for the concessionary travel scheme to be preserved so that the elderly and disabled continue to enjoy free bus travel. It found that local authorities could reduce costs through better coordination, planning and delivery of different types of transport services. Closer partnership working between local authorities, bus operators and community transport operators will be necessary post-Spending Review, in order to better utilise diminished resources, and it encourages local authorities and integrated transport authorities to use the provisions within the Local Transport Act as means to achieve better partnership working. The Committee also calls on the Local Government Association to identify and disseminate information about good and bad practice in the delivery of cost effective, flexible services including community transport and/or area-based transport integration. (11 August 2011)

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

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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:
  • 21 September (London): Governance, service restructuring and social enterprise
  • 27 September (London) & 5 October (Birmingham): Outsourcing
  • 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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