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:  

   Anti Social Behaviour    Health and Social Care
   Children's Services    Highways
   Community Engagement    Housing
   Education    Private Finance Initiative (PFI)
   Emergency Planning    Procurement
   Finance and Funding
   Bevan Brittan's Local Government Training Programme 


Anti Social Behaviour

DCLG: Extending social landlords' powers to seek possession for criminality and anti-social behaviour: at the beginning of August, the Government issued a consultation on the detail and practicalities of a new mandatory power of possession to enable landlords to take swifter action to evict their most anti-social tenants. The Housing Minister has now written to local authorities advising that the scope of the consultation has been extended. DCLG is now propopsing to broaden the existing discretionary ground for possession for anti-social behaviour and criminality so as to enable the court to grant possession where a tenant or member of their household has been convicted of a violent disorder offence. In light of these amendments, the consultation period has been extended to 7 November 2011. (15 August 2011)

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

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Children's Services

DfE: Changes to the Care to Learn childcare support scheme: seeks views on changes to how the Care to Learn programme will continue to support teenage parents in education and unpaid training in England from September 2012, in light of increasing demand. The consultation closes on 28 October 2011. (26 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

DCLG: Get the green space you want - How the Government can help: outlines the full range of measures that the Government has in place to support communities who want to get more involved in their local community and get access to the space they need. (26 August 2011)

DCLG: Potential funding for community green spaces: sets out the potential funding available to community and voluntary organisations for community green space initiatives. It identifies the different grant schemes open to local groups, green spaces, allotment organisations or trusts, and also where to go to get help when looking for funding. (26 August 2011)

DCLG: Community orchards - How to guide: brings together in one place practical advice and guidance for communities wanting to start up, share or save their own community orchards. The guide outlines what new and existing support and powers are available for communities wanting to conserve or create community orchards. It provides links to expert organisations, information on where to go for funding and examples of communities across the country busy preparing to harvest their latest crop. It includes details of the new Community Rights in the Localism Bill. There is also a compendium of case studies. (26 August 2011)

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

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DCLG: Planning for schools development: this policy statement sets out the Government's commitment to support the development of state-funded schools and their delivery through the planning system. It sets out new principles for councils considering proposals for the creation or development of free and other state-funded schools, so as to allay public concerns that some councils could have a conflict of interest as a local planning authority and a local education authority, or could try to use the planning system to stop new free schools opening. The new planning rules set out how planning departments should operate in a positive manner when dealing with proposals for state-funded school, with a presumption in favour of the development of state-funded schools including free schools, as expressed in the National Planning Policy Framework.
The Government has also published a summary of responses to its consultation, Planning for Schools Development, that sought views on proposed reforms to the existing planning framework so as to facilitate the creation of free schools by making it easier for free schools’ providers both to find suitable premises and convert buildings into schools. DCLG states that it will continue to explore whether there is further scope and need for the planning system to do more to support state-funded schools, and in particular, free schools in the future. (15 August 2011)

DBIS: New challenges, new chances - Next steps in implementing the Further Education reform programme: seeks views on proposals that aim to promote high quality teaching and learning for adults, further free colleges to respond more effectively to the needs of their local communities and strengthen the skills system by securing a fairer balance of investment between learners, employers and taxpayers. The plans implement key parts of the Government’s strategy for further education and skills, published last November. 
DBIS has also published two detailed consultations:

  • Further Education loans: confirms the funding policy that will apply to FE Level 3/4 loans to cover learner contributions, and discusses how best to implement the policy and delivery model to ensure that there is an efficient and effective loans system in place; and 
  • Review of Informal Adult and Community Learning: identifies six key challenges for DBIS funding for informal adult and community learning and discusses how to ensure this investment supports relevant Government policy objectives and engages and motivates people from disadvantaged groups. 

All three consultations close on 21 October 2011. (16 August 2011)

HC Public Accounts Committee: Getting value for money from the education of 16- to 18- year olds: this report examines the system governing the education of 16- to 18-year-olds, which it describes as "devolved and complex". It finds that while local authorities have a duty to secure provision, they have limited powers, and so cannot work effectively. The Committee concludes that although there has been an overall improvement in the educational achievements of 16 to 18-year-olds over the last four years, more needs to be done to ensure that choice operates effectively in the market. The competitive market in which providers of 16 to 18 education operate can be a barrier to collaboration and aspects of inspection and assessment are not aligned with collaborative delivery. Participation of 16- and 17-year-olds in education and training has increased in recent years, but further increases are required to reach the legislative requirement of full participation by 2015. The DfE must assess the impact of recent changes to policy, such as its replacement of the Education Maintenance Allowance, on its plans to have everyone up to age 18 in education or training by 2015. (16 August 2011)

Ofsted: Progression post-16 for learners with learning difficulties and/or disabilities: sets out the findings from a survey of the transitional arrangements from school and the provision in post-16 settings for learners with learning difficulties and/or disabilities up to the age of 25. The inspectors found that learning opportunities beyond school for these young people varied considerably between local areas. There was insufficient provision available for learners with the highest level of need, and the current placement system resulted in significant inequities in the provision available for learners with similar needs. (23 August 2011)

School Governors' Annual Reports (Wales) Regulations 2011 (SI 2011/1939 (W.207)): these regulations, which come into force in Wales on 1 September 2011, revoke and replace, with amendments, SI 2001/1110 (W.54) regarding the information to be contained in governors' reports under s.30 of the Education Act 2002. (3 August 2011) 

Pupil Information (Wales) Regulations 2011 (SI 2011/1942 (W.209)): these regulations, which come into force in Wales on 1 September 2011, revoke and replace SI 2004/1026 (W.123) regarding the records that a head teacher must keep about a pupil. (4 August 2011)

Head Teacher’s Report to Parents and Adult Pupils (Wales) Regulations 2011 (SI 2011/1943 (W.210)): these regulations, which come into force in Wales on 1 September 2011, provide for the report that the head teacher must send to parents and adult pupils each school year and the additional information that parents may request relating to the pupil’s levels of achievements in relevant subjects. (4 August 2011)

School Information (Wales) Regulations 2011 (SI 2011/1944 (W.211)): these regulations, which come into force in Wales on 1 September 2011, revoke and replace SI 1999/1812 regarding the information that Welsh local authorities and schools must publish in relation to the academic year 2011-2012 and subsequent years. (4 August 2011)

School Performance and Absence Targets (Wales) Regulations 2011 (SI 2011/1945 (W.212)): these regulations, which come into force in Wales on 1 September 2011, revoke and replace, with changes, SI 1999/1811. They require school governing bodies to set performance targets for pupils in Key Stages 2, 3 and 4. They also require the governing body of every maintained secondary school to set targets in respect of pupils' unauthorised absence and to publish information about these targets and the actual unauthorised absence rate in the governing body’s annual report. (4 August 2011)

Education Act 2002 (Commencement No. 14) (Wales) Order 2011 (SI 2011/1952 (W.216) (C.71)): this Order brings into force in Wales on 1 September 2011 the specified provisions of the Education Act 2002 relating to the federation of schools. (29 July 2011)

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

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Emergency Planning

DCLG: Support package for local firms and families to rebuild their communities: the Secretary of State has written to local authorities and fire authorities who were affected by the August 2011 riots, with details the package of support available. This includes: 

  • £10m Recovery Scheme that will provide grants to local authorities to help them with the clean up costs spent until 5 October 2011, and claims must be submitted by 7 November 2011. Expenditure must have been incurred by a local authority taking action to safeguard life or property or to prevent suffering or severe inconvenience in the community as a direct result of the riots. Normal salary or wages, or capital and insurable costs will not be eligible; 
  • £20m High Street Support Scheme: available to councils to provide grants to local businesses to alleviate specifically the impact of the recent widespread public disorder on affected businesses. Local authorities are required to submit applications for the total anticipated costs of the scheme by 7 November 2011, with supporting documentation.

These two schemes are in addition to the existing Bellwin Scheme, and not subject to any minimum threshold. In addition: 

  • individuals, homeowners and local firms can also claim compensation for property damage under the Riot (Damages) Act 1886. The period for submitting claims is extended to 42 days. This will help provide support for uninsured buildings; 
  • small businesses can also claim grants from the High Street Support Scheme for the costs of the business recovery not covered by their insurance or the Riot Damages Act, e.g. emergency repairs, replacement of essential assets, security measures, and marketing to show potential customers that they are 'open for business';
  • the Government will meet councils' immediate costs for helping people who have had to leave their home as a result of the rioting. Applications for re-housing costs must be received by 30 November 2011. The maximum payment to individual households is limited to £5,000, although discretion will be applied where exceptional costs have been incurred. The funding will be provided through the existing homelessness funding mechanism.

DCLG has also published the Recovery Scheme’s terms, guidance for local authorities on the High Street Support Scheme and an example application form for businesses. (19 August 2011)

Mayor of London: £20m to transform Tottenham and Croydon following riots: announces an additional £20m from the London Enterprise Fund to transform Tottenham and Croydon following the recent riots. The funding is designed to provide swift improvements so allocation of money could include investment in transport infrastructure, buying up and rebuilding affected properties and funding business rate relief as well as supporting employment. (17 August 2011)

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

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Finance and Funding

DCLG: Letter from Sir Bob Kerslake about Community Budgets: the DCLG Permanent Secretary has written to local authority chief executives with details about the full range of Community Budgets activity. He confirms Baroness Hanham’s previous announcement about establishing four new pilots -  two for a neighbourhood-level Community Budget and two for a whole area single pot Community Budget. A prospectus for both types of pilot will be issued at the end of September, with the areas selected by the end of this year. He also confirms that DCLG will be rolling out Community Budgets for families with multiple problems to a further 50 areas. LAs should submit expressions of interest by 9 September 2011. (28 July 2011)

Cabinet Office: Big Society innovation aims to get families out of deprivation: announces a major trial of Social Impact Bonds (SIBs), an innovative new way of funding intensive help for families blighted by anti-social behaviour, crime, addiction and poor education. Four SIB pilots launched in Hammersmith & Fulham, Westminster, Birmingham and Leicestershire will tackle multiple problems in a family setting. The new trial will build on a SIB pilot to tackle reoffending in Peterborough Prison launched by the MoJ last September. Liverpool and Essex are also looking to trial a related SIB initiative to support vulnerable adolescents and their families with the objective of preventing care entry. (26 August 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

DH: Consultation on allocation options for distribution of additional funding to local authorities for: Local HealthWatch, NHS Complaints Advocacy, PCT Deprivation of Liberty Safeguards: seeks views on options for allocate funding for three duties which will pass under the Health and Social Care Bill from the NHS and DH to local authorities: Local HealthWatch, NHS Complaints Advocacy and PCT DOLS. It states that local authorities will need a minimum level funding of £20,000 for the functions of Local HealthWatch that are additional to the current functions of LINks. The consultation sets out two options for the distribution of funding, proportionate either to the size of the working age population or to the need for state-supported social care. It also proposes a further adjustment to fund the minimum spend for smaller local authorities, such as the Isles of Scilly and Rutland. The consultation was originally issued in July but was withdrawn and re-drafted. It closes on 24 October 2011. (15 August 2011)

CX v A Local Authority [2011] EWHC 1918 (Admin) (Admin Ct): CX applied for a writ of habeas corpus ad subjiciendum arising from his detention as a patient in a mental hospital. CX had been detained under s.3 of the Mental Health Act 1983 on the application of an approved mental health professional (AMHP), employed by the local authority. CX contended that his detention was unlawful because the AMHP had failed to consult properly with CX's nearest relative, his mother, and also because his mother only withdrew her objection to the application for his detention because she was misled as to her statutory rights. The court held, granting a writ of habeas corpus, that the consultation with CX's mother was not sufficiently informed to satisfy the requirement of the Act that the nearest relative be consulted before the section 3 application was made. Also, the mother's withdrawal of consent was initiated by incorrect and misleading advice that she could only maintain her objection in the face of a displacement application if she was legally represented in the court proceedings which would follow. (20 April 2011)
See also the news report in Local Government Lawyer.

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

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DfT: New Road and Street Works Act 1991 - Lane rental schemes in England: seeks views on proposals to allow local highways authorities to implement “lane rental” schemes under s.74A of the 1991 Act, enabling them to charge utility companies and street works undertakers a daily fee for the duration of works carried out in a street at the busiest times. There are also draft Street Works (Charges for Occupation of the Highway) (England) Regulations and draft guidance to local authorities. Lane rental charges would have to be avoidable and proportionate to the costs of congestion, with a proposed maximum charge of £2,500 per day. Councils are also being encouraged to apply the same principles to their own works and come forward with lane rental schemes which fit the needs of their local area. The new lane rental schemes would be tested first in one or two areas (a major urban area and a non-metropolitan area) before being rolled out across England. The consultation closes on 31 October 2011. (22 August 2011)

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

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DCLG: Streamlining council housing asset management - Disposals and use of receipts: seeks views on proposed reforms to the General Consents issued under s.32 of the Housing Act 1985, under which local authorities have freedom to dispose of council housing assets without the specific consent of the Secretary of State. It also seeks views on proposed amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 that govern the use of receipts arising from such disposals. The consultation closes on 17 November 2011. (25 August 2011)

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

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Private Finance Initiative

Treasury Select Committee: Private Finance Initiative: this report aims to aid the Treasury in the work they are doing to reform PFI (report due out Autumn 2011). The Committee concludes that PFI funding for new infrastructure, such as schools and hospitals, does not provide taxpayers with good value for money and stricter criteria should be introduced to govern its use. Higher borrowing costs since the credit crisis mean that PFI is now an ‘extremely inefficient’ method of financing projects; however, poor investment decisions may continue to be encouraged across the public sector because PFI allows Government departments and public bodies to make big capital investments without committing large sums up front. The Committee has not seen any convincing evidence that savings and efficiencies during the lifetime of PFI projects offset the significantly higher cost of finance. The report raises concerns that the current Value for Money appraisal system is biased to favour PFIs and it identifies a number of problems with the way in which costs and benefits for such projects are currently calculated.
The Committee recommends that: 

  • the Treasury should consider scoring most PFIs in departmental budgets in the same way as direct capital expenditure, adjusting departmental budgets accordingly; 
  • the Treasury should discuss with the Office for Budget Responsibility the treatment of PFI to ensure that PFI cannot be used to ‘game’ the fiscal rules; 
  • the Value for Money assessment process should be subjected to scrutiny by the NAO; and 
  • the Treasury should review the way in which risk transfer is identified.

(19 August 2011)

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

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Public Procurement (Miscellaneous Amendment) Regulations 2011 (SI 2011/2053): these regulations, which come into force on 1 October 2011, amend the Public Contracts Regulations 2006 (SI 2006/5) (PCR) and four other procurement SIs. They:

  • change the time limit within which tenderers can bring proceedings to challenge procurement decisions made by contracting authorities. The new limit is 30 days beginning with the date when the tenderer first knew or ought to have known that grounds for starting the proceedings had arisen, but the court may extend this to up to 3 months; 
  • modify the obligation on a contracting authority to send a ‘standstill notice’ prior to awarding a contract to a tenderer who has already been excluded from consideration, if the time limit for challenging that exclusion has elapsed;
  • change what triggers the ‘automatic suspension’ of a contracting authority’s ability to enter into a contract when the award of the contract is challenged by proceedings before the contract is actually entered into; and
  • update the grounds upon which an economic operator can be rejected under reg.23 PCR.

(24 August 2011)

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

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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
  • 23 September (Birmingham): Trusts and charities 2011 (organised by LSB Law)
  • 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
  • 23 November (London): Waste and energy review
  • 13 December (London): The Localism Act

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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