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 the two weeks up to 21 October 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:  

   Audits    Housing
   Bias and Predetermination    Libraries
   Community Engagement    Localism Bill
   Education    Officers
   Finance    Planning & Development Control
   Health and Social Care    Procurement
   Highways    Public Order
   Bevan Brittan's Local Government Training Programme 



DCLG: Future of local public audits - Summary of report prepared by FTI Consulting Limited: as part of the broader review of the Future of Local Audit, DCLG appointed FTI Consulting to provide high level advice relating to the transfer to the private sector of the in-house practice. This document provides a summary of their advice that included a high level summary assessment of the likely impact on the audit market of the three options (sale, outsourcing and hybrid - combination of outsourcing and sale) in terms of potential effects on public sector audit fees and the concentration, level of competition and contestability of the local public audit market. This paper excludes certain commercially sensitive information and information likely to prejudice the achievement of value for money for taxpayers if made public. (10 October 2011)

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

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Bias and Predetermination

R (Hewitson) v Guildford BC (Unreported, Admin Ct): H applied for judicial review of the council's grant of planning permission to his neighbours for extensions to their property. The planning committee's vote on the application resulted in a tie; the authority's solicitor then advised the chairman, C, that he could use his casting vote. C cast his vote in favour of the development. H contended that the solicitor had advised C that  he should apply his vote according to the planning officer's recommendations, but C stated that he had been advised he could vote as he thought fit and so he had made a decision on the merits. H contended that the advice given to C was unlawful and fettered his discretion, which resulted in a failure to have full regard to the merits and gave the appearance of bias.
The court held, refusing the application, that C's evidence was clear that he had changed his mind with regard to the planning merits and the local authority was not precluded from relying on that evidence. It was the best evidence of what was in his mind at the time. Applying R (Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746, there were four considerations on the correct approach to the appearance of bias:
  • the importance of appearance was more limited in the context of deciding what elected councillors thought than in a judicial context;
  • the question of appearance was not irrelevant;
  • a statement from the decision maker could not conclude the issue but was relevant; and
  • the object was to ascertain whether there was such a risk that the decision was taken with a closed mind that it should not be upheld,  followed.

Here, the circumstances were not such that the decision could not be upheld. C's evidence was accepted. When considering the appearance of the matter, C's extensive experience in planning matters was relevant. C could have regard to the planning officer's recommendations when considering his casting vote. (14 October 2011)
The judgment is available on Lawtel (password required).

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Community Engagement

Cabinet Office: Big Society drive to boost local social action begins: announces the launch of the £80m Community First fund, which will provide small grants to community groups and local social action projects. Also announces the first 47 Community Organisers who will play an important role organising communities to take advantage of Community First funding. (6 October 2011)

DCLG: Community Budgets prospectus: invites local areas to apply to be new Community Budget pilots to test how better they can better design local services. Following a selection process, two areas will be asked to develop neighbourhood-level Community Budgets. Two other areas will be asked to test how all funding for local services can be brought together into one place under a Community Budget. The closing date for expressions of interest is 10 November 2011. Each pilot will establish devolved budget and policy making structures to secure better co-ordinated, more efficient services for residents. Each area will get dedicated support to break through Whitehall's bureaucracy so proposals could be up and running by April 2013. (17 October 2011)

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

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DfE: Proposed amendment to the School Governance (Constitution) (England) Regulations 2007: seeks views on amendments  to clarify SI 2007/957 regarding the appointment of foundation governors in foundation and voluntary aided schools. (7 October 2011)

DfE: Schools to trial new approach to exclusions: announces that about 300 schools are to take part in a trial in which head teachers who permanently exclude a pupil from their school will be able to choose alternative provision, rather than the local authority. The school will also receive the funding instead of the local authority. Schools in the trials will be better able to monitor both attainment and attendance of the pupils. The trial will also help encourage schools to intervene early with children who are at risk of being excluded. Other local authorities and schools will be joining the trial over the coming months, with the new arrangements introduced in these schools on a staggered basis, with all of the schools on board by March 2012. In total, around 3000 pupils at risk of being excluded will be part of the trial. (17 October 2011)

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

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DCLG: Local government capital finance system - Proposed changes: seeks views on the Government's proposed amendments to the Capital Finance Regulations (SI 2003/3146) and Minimum Revenue Provision guidance that will come into force on 1 April 2012. The proposals cover securitisation and investment in bonds. The consultation closes on 22 November 2011. (11 October 2011) 

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

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Health and Social Care

DH: Social action health and well-being: building co-operatives communities - Department of Health strategic vision for volunteering: this doucment sets out to enhance the profile of volunteering, highlight its potential in terms of health, well-being and addressing health inequalities, and promote good practice across the health and social care system. 
The Care Services Minister has also announced that up to £2.6m will be available for national volunteering and social action projects in 2012 that meet one of four key themes: improving health and social care; delivering better health outcomes; improving public health; and a patient-led NHS. (17 October 2011)

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

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LGA: Salt orders increase as councils prepare for big freeze: reports on findings from an LGA survey on local authorities' preparations for severe winter weather. (8 October 2011)

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

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DCLG / LGA: Statement on self-financing for council housing: draws authroities' attention to reforms to council housing finance that are being implemented in April 2012, and sets out support and advice available. (7 October 2011)

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

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Bailey v Brent LBC; All Souls College (Interested Party) [2011] EWHC 2572 (Admin) (Admin Ct): B applied for judicial review of the council's decision to make changes to its public library services, including closing six of its 12 public libraries. The council had carried out a consultation on its proposals and also prepared an Equality Impact Assessment. B contended that: 
  • the council had either misdirected itself on the true scope of its duties under s.7 of the Public Libraries and Museums Act 1964, or closed its mind to a fair consideration of whether its duties might be fulfilled by joint arrangements with voluntary groups who wished to keep one or more of the six libraries open on some basis;
  • failed to inform itself properly of the needs of residents, and then to analyse those needs rigorously, in particular by reference to the needs of children, in order to meet its s.7 duties;
  • the public consultation had been unfair since the council had not told the public what it needed to know about the running costs of libraries so that groups could make informed responses in support of voluntary arrangements, and had not been told the basis upon which the Council would appraise their alternative proposals; and
  • it had also failed to comply with the public sector equality duties in s.149 of the Equality Act 2010.

The court held, refusing the application, that the s.7 duty was to have regard to the “desirability” of securing provision of services by other “appropriate means”. The council had done just that: it had concluded for sound and legitimate reasons that it was not desirable, and the alternative means were not appropriate. Section 7 contained no duty to consider providing a subsidy if the council did not consider that to be desirable or appropriate. The Council’s approach was entirely consistent with the requirement in s.7(2) that the provision of library services by other means be “appropriate” - the council was entitled to judge that, in dealing with a service the costs of which needed to be cut, some other means of provision was not appropriate if it cost the council money over and above that which the council was prepared to spend, or if it was unlikely to provide the service required. The council had given consultees sufficient reasons for and information about the proposals to permit of intelligent consideration and response and so the consultation process was not legally flawed. B’s points did not show that the needs assessment was irrational or obviously seriously deficient to the extent necessary for the court to hold that the council’s judgment under s.7 was unlawful. Rather they amounted to the sort of issues which go to a factual debate about the merits of the assessment. The Council had obtained the information required in relation to these users, and had dealt with the relevant questions which these closures give rise to in relation to them at least sufficiently for its judgment on the performance of its s.7 duty not to be challengeable by judicial review. The court rejected all B's arguments about breach of the public sector equality duty. (13 October 2011)
The judgment is available on Lawtel (password required).

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

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Localism Bill

Localism Bill: the Bill has now completed the report stage in the House of Lords. This is the latest version of the Bill, as amended. It now runs to almost 500 pages and comprises 240 clauses and 25 Schedules. It is scheduled to receive its 3rd Reading in the Lords on 31 October. The Bill's progress and all related documents are available on the Parliament Bills website. (17 October 2011)

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

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SOLACE: Statement on the role of the Chief Executive: SOLACE believes that the role of the Chief Executive is special and unique, and is concerned that authorities do not take restructuring decisions lightly and that the desire to ‘balance the books’ does not override the need to maintain good corporate governance. This paper highlights matters that members should consider when reviewing the number and seniority of members of the authority’s Senior Management Team. (7 October 2011)

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

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Planning and Development Control

DCLG: Community Infrastructure Levy - Detailed proposals and draft regulations for reform: the Community Infrastructure Levy (CIL) is a new levy that local authorities can charge on new developments in their area and use the money raised to fund infrastructure for local communities and neighbourhoods. This paper seeks views on the detailed implementation of proposals to reform the CIL in the Localism Bill. The changes would require local authorities to pass a meaningful proportion of receipts to the neighbourhoods where the development that gave rise to them took place, clarifies that receipts may be spent on the ongoing costs of providing infrastructure to support the development of the area and provides more local choice over how to implement a charge. The consultation closes on 30 December 2011. (10 October 2011)

DCLG: Community Infrastructure Levy - collection and enforcement: this information document explains how the CIL collection and enforcement provisions work in practice. It provides information for local authorities and other interested parties about collecting and enforcing the levy. (10 October 2011)

DCLG: Neighbourhood planning regulations: seeks views on proposed regulations covering the new powers under the Localism Bill for neighbourhood planning and Community Right to Build. The regulations set out the minimum level of requirements that would ensure a nationally consistent approach to designating neighbourhood areas and neighbourhood forums, and the preparation of neighbourhood plans and neighbourhood development orders. The consultation asks for comments on whether the regulations as proposed are workable and proportionate. The consultation closes on 5 January 2012. (13 October 2011)
DCLG has also published An introduction to neighbourhood planning that provides an easy to read introduction to the new powers for communities to decide the future of the places where they live and work. This leaflet explains what neighbourhood planning is; why it matters and how it will work and provides information about the sources of advice and support for communities interested in doing neighbourhood planning.

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

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Mears Ltd v Leeds City Council (No.2) [2011] EWHC 2694 (TCC): this case concerned the Council's ALMO's procurement of capital improvement and refurbishment works for social housing in the Leeds area. M, an unsuccessful tenderer, brought a claim for breach of the Public Contracts Regulations and sought an order suspending the procurement and an order that the local authority re-run the procurement either in full or in part. M succeeded on one part of their claim but failed on the other parts and obtained an order for damages to be assessed but not for the procurement to be set aside which would have led to a new procurement process. M then sought an order for costs in their favour, alternatively an order for no lower than 80% to 90% of their costs.
The court held that M was properly characterised as the successful party and so, under the general rule, would be entitled to have their costs paid by the Council. There was no conduct in this case, other than the relative success and failure of the parties, which justified a different order for costs. However, significant time and costs were spent in dealing with claims on which M did not succeed and it was not just, fair and reasonable that M should recover the costs of dealing with those claims or that the Council should bear those costs. A substantial discount of 65% was required to reflect the significant costs which related to issues on which the Council had succeeded and M had not succeeded, to be balanced against the fact that, overall, M was properly characterised as the successful party. The court ordered that the Council should pay M 35% of their costs of the proceedings up to 25 May 2011, such costs to be assessed on a standard basis, if not agreed. (20 October 2011) 

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

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Public Order

Home Office: Consultation on police powers to promote and maintain public order: seeks views on proposals to amend three areas of police powers:
  • the effect of the word ‘insulting’ in s.5 of the Public Order Act 1986;
  • new powers to request removal of face coverings; and
  • new powers to impose curfews to deal with serious disorder and crime, in situations where existing dispersal powers may be insufficient to protect the public.

The consultation closes on 13 January 2012. (13 October 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:

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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