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    Fraud
   Children's Services    Libraries
   Community Engagement    Localism Act 2011
   Education    Officers
   Finance    Private Finance Initiative
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

Cheshire West & Chester Council v P (by his litigation friend the Official Solicitor) [2011] EWCA Civ 1257 (CA): the council appealed against the Court of Protection's declaration that P's care plan involved a deprivation of his liberty for the purposes of Art.5 ECHR. P was born with cerebral palsy and Down's Syndrome and had significant physical and learning disabilities; he also had a long history of challenging behaviour. After his mother became unable to care for him, he was placed in a local authority care home with a detailed care package. The judge found that the steps required to deal with his challenging behaviour led to a clear conclusion that, looked at overall, P was being deprived of his liberty - his life was completely under the control of members of staff at the home, he could not go anywhere or do anything without their support and assistance and, more specifically, his behaviour required a range of measures, including physical restraint, and the intrusive procedure of inserting fingers into his mouth while he was being restrained.
The court held, allowing the appeal, that the facilities provided for P by the support staff, as set out in the care plan, did not amount to deprivation of liberty. The court set out factors that were likely to be significant in Court of Protection deprivation of liberty case: the starting point was the "concrete situation", taking account of a whole range of criteria such as the "type, duration, effects and manner of implementation" of the measure in question. Deprivation of liberty had to be distinguished from restraint. The relevant comparator for DOL cases that came before the Family Division or the Court of Protection was not the previous life led by the adult (nor with some future life that he might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The comparator is an adult of similar age with the same capabilities as the adult in question, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. Here, the judge did not compare P's situation with the kind of life that P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting. The limitations and restrictions on P's life in the care plan were nothing more than the inevitable corollary of his various disabilities. There was nothing to show that the life P was living in the home was significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living. (9 November 2011)

R (Sefton Care Association) v Sefton Council [2011] EWHC 2676 (Admin) (Admin Ct): SCA, a group of care home proprietors, applied to quash the council's decision to freeze the level of fees payable to care homes in 2011/12, for the second year running. SCA contended that the decision was unlawful as the council failed to follow due process, and also failed to comply with its equality duty under s.49A of the Disability Discrimination Act 1995.
The court held, granting the application, that the council when fixing the fees had failed adequately to investigate or address the actual costs of care with SCA and the other providers, and so had failed to have due regard to those costs, contrary to the guidance. The council had failed to engage in any meaningful negotiation with care providers before reaching its decision, and so it had failed in its duty to engage in proper consultation with the care home providers. However, the decision would not be quashed on the basis of any failure to comply with the s.49A equality duty: here, there was no challenge to any individual care plan or assessment of needs. Provided that the usual cost of care was properly determined in accordance with the Directions and Guidance, the council was entitled to proceed upon the basis that the requirements of the equality duty had been complied with in the preparation of individual needs assessments and care plans, and it did not need to go any further when fixing the fees payable in respect of its placements. The court distinguished cases relied upon by SCA in relation to the Public Sector Equality Duty as those involved restriction or termination of services or changes in eligibility criteria, whilst the decision being made in this case, in comparison, involved no change in the criteria for residential care and a determination by the council that the fees were sufficient to enable the assessed care needs of supported residents to be met and to provide them with the level of care that they could reasonably expect to receive without resident and third party top-ups.(9 November 2011)

R (JM & NT by their Litigation Friends) v Isle of Wight Council  [2011] EWHC 2911 (Admin) (Admin Ct): M & T were severely disabled adults in receipt of direct payments from the council for community care services.They applied for judicial review of the council's decision to restrict the eligibility threshold for adult social care. In February 2011 the council decided, as part of a budget plan designed to reduce its overall expenditure, to change its eligibility criteria so that it would continue to meet fully the needs of all people who were assessed as Critical while, for those people whose needs were assessed as Substantial, it would only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe. M & T contended that the council had failed to comply with the statutory guidance: the new eligibility criteria were unlawful because they contained impermissible band-splitting, by adopting a 'hierarchy of needs' within bands and on the basis of how likely and how frequently a need might arise. They also claimed that the council had failed to comply with its Public Sector Equality Duty under s.49A of the Disability Discrimination Act 1995 as, when the council made its decision, it did not have the necessary information about the potential impact of the proposed change in eligibility criteria and so both the equality impact assessment and its consultation were flawed. 
The court held, granting the application, that the 'hierarchy of needs' in the revised policy, which placed the risk factors of not being able to remain at home and to be safe ahead of other risk factors within the Substantial band, restricted eligibility and so was in breach of the guidance and the Fair Access to Care Services principles. Instead of focusing on the severity of the needs and the risks, the policy introduced specific new criteria based upon frequency, likelihood and immediacy of risk, which would have the effect of restricting eligibility according to considerations not mandated by the guidance and their adoption would downgrade fluctuating and/or long term and/or future risks. The council had failed to have due regard to the need to promote disability equality under s.49A DDA 1995 when setting the policy. The council's need to balance its budget, when faced with insufficient financial resources, was the countervailing factor which it had to weigh in the balance, when having due regard to the adverse impact which more stringent eligibility criteria might have on disabled users of Adult Social Care services. The consultation responses did not, and could not, fully reflect the experiences and views of users and their carers, because they were not provided with the information they required to make an informed response. The council did not conduct the rigorous analysis and consideration required in order to satisfy the 'due regard' duty under s.49A, principally because it did not gather the information required to do so properly. (11 November 2011) 

BUPA: Ensuring local authority fee levels reflect the real costs of caring for vulnerable older people:  this report shows that care home fees paid by councils have fallen by 3.9% in real terms over the last two years, hitting providers at the same time that care homes have been facing large increases in their main costs. It looks at the level of local authority fee increases needed to reverse this trend, stablilise funding, and ensure that older people get the high quality care they deserve. It estimates that an extra £1.7bn is needed in total over the next three years to fill the funding gap. (14 November 2011)

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

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Children's Services

R (SA (a Child) by her Litigation Friend SH) v Kent CC [2011] EWCA Civ 1303 (CA): the issue in this case was whether a child who was not the subject of an interim care order could be a looked after child where she went to live with a relative in circumstances where the local authority was involved in setting up and funding the arrangement. 
A , aged 9, went to live with her grandmother (G) after her mother became unable to look after her. The local authority's social worker asked G if she would be able to look after A and an agreement was signed by G, A's mother and father and the social worker confirming the arrangements. At no time did the authority discuss what financial assistance would be given to G for looking after A. The authority arranged for G to be paid a kinship payment of £63 pw; G contended that she was entitled to a fostering allowance of £146 pw. The High Court ruled that the local authority were acting unlawfully in paying G a kinship allowance pursuant to s.17 of the Children Act 1989 on the basis that she was living with her grandmother under a private family arrangement under s.23(6) of the 1989 Act, and ordered that they pay her the appropriate weekly allowance for a looked after child under s.23(2).
The Court of Appeal dismissed the authority's appeal. It held that there was a specific general duty under s.20 of the 1989 Act to provide accommodation for a child in need in listed circumstances. If the local authority provided accommodation under s.20, the child was then looked after by the local authority, and s.23 prescribed how the local authority provided accommodation for children they were looking after. Here, it was not disputed that A was a child in need under s.17 and so the authority had a duty to provide her with accommodation under s.20(1)(c). In the court's view, a looked after child living with her grandmother pursuant to arrangements made under s.23(6) was still being provided with accommodation, because making arrangements under s.23(6) was no more than a means of providing accommodation under s.23(2). However, the court was bound by the ruling in Re H (A Child) (Care order: Appropriate Local Authority) [2003] EWCA Civ 1629 that the effect of s.23(6) was to cast upon the local authority a duty to make arrangements to enable a looked after child to live with a person or family to whom he was closely related or with whom he was closely connected. Once that was achieved the looked after child ceased to be provided with accommodation and began to live with the relative or family arranged by the local authority pursuant to their duty under s.23(6), and so ceased to be a looked-after child. In this case, the judge had been entitled to find on the facts that the authority had discharged its duty under s.20(1) by a placement with G under s.23(2) rather than s.23(6) and so A remained a looked after child. (10 November 2011)

Ofsted: The majority of local authorities are providing good services for local children and young people:  Ofsted has published the outcomes of the 2011 Annual Children’s Services Assessment for English local authorities, which show that the majority of authorities are providing good or better children’s services. The Annual Children’s Services Assessment found that overall 71 authorities are performing well, 33 are providing adequate services and, similar to the previous year, 15 authorities are performing poorly. The outcomes for five authorities have not been published today as further inspections are due to take place. (8 November 2011)

Ofsted: Management of cross-remit concerns about children's welfare: this document clarifies Ofsted’s approach to concerns about a local authority’s arrangements for children and young people that arise during any inspection of a social care service, early years or education provider. It explains the process that inspectors should follow if, during an inspection or survey visit, they identify evidence that suggests local authorities may not be fully meeting their statutory duties in relation to the welfare and well-being of children. The advice does not replace the safeguarding procedures outlined in Whistleblowing to Ofsted about safeguarding in local authority children’s services. (10 November 2011)

DfE: Supporting families in the foundation years - Proposed changes to the entitlement to free early education and childcare sufficiency: seeks views on plans to extend free early education to 140,000 disadvantaged two-year-olds. The proposals include:

  • draft statutory guidance to local authorities on the delivery of free early education and securing sufficient childcare;
  • new eligibility criteria for the new entitlement to free early education for two year olds;
  • increasing flexibility on when free entitlement hours can be taken; and
  • clarifying eligibility requirements that providers need to meet to deliver free early education places. 

The press release lists, by local authority, the number of disadvantaged two-year-olds who stand to benefit from this extension. The consultation closes on 3 February 2011. (11 November 2011)

DCLG: Housing rules should not be a barrier to a stable home life: announces that new guidance on allocating council homes will break down the barriers between different council departments and ensure that the needs of children waiting for adoption will be considered and the needs of those wanting to adopt or foster can be met. The guidance will make it clear that councils will be expected to consider how their actions could help people in their area who are looking to adopt or foster a child in need of a stable, loving family. (18 November 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: Launch of Near Neighbours programme: announces the launch of Near Neighbours, a £5m three-year programme that aims to bring together people from diverse communities and different faiths to get to know each other better and help them improve their local neighbourhoods. The Near Neighbours fund awards grants of £250 - £5,000 to grass roots groups in four geographical areas: Bradford, Burnley and Oldham; Leicester; and areas of East London and Birmingham. The programme is administered by the Church Urban Fund. (14 November 2011)

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

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Education Act 2011: this Act has received Royal Assent. Some sections came into force on 15 November 2011, some come into force on 15 January 2011, and the remainder come into force on a day or days to be appointed. The Act includes: 
  • powers to search pupils at schools and FE colleges; 
  • repeal of requirements to notify parents of detentions; 
  • responsibility of school governors for careers education; 
  • repeal of local authority's duty to appoint school improvement partners; 
  • new requirement on local authorities who want a new school in their area to seek an academy; 
  • repeal of powers to complain to the LGO re school complaints; 
  • new power for Secretary of State to revise local authority  financial schemes; 
  • provides for 16-19 academies and alternative provision academies; 
  • provides for continued financial assistance to academies by local authorities; 
  • allows local authorities to pay pupils' fees at boarding academies; and 
  • pilots direct payments for special educational needs. 

(15 November 2011)

DfE: The Academies (Land Transfer Schemes) Regulations 2011: seeks views on new regulations prescribing the information that may be required in order to inform and underpin any potential transfer schemes that the Secretary of State may make under existing legislation set out in the Academies Act 2010. These schemes would allow local authority owned land that is no longer used for maintained schools to be transferred for the use of an Academy or Free School. The proposed regulations do not give the Secretary of State any new powers to force local authorities to transfer land, nor remove any rights from local authorities. Alongside the consultation, the DfE has published Model Schemes for freehold and leasehold land, and Q&As with more details on the proposals. The consultation closes on 18 January 2011. (9 November 2011)

LGO: School admissions - Are parents and pupils getting a fair hearing?: in 2010/11 the LGO received 1,195 complaints on school admissions, 28% of which led to some kind of remedy for the family. This focus report highlights common faults in school admissions which crop up regularly in complaints about appeals. It includes case studies and sets out good practice for school admission appeal panels. (9 November 2011)

DfE: Consultation on the changes to the Admissions Regulations: seeks views on proposals to reduce and align the regulations that underpin the School Admissions Code and draft School Admission Appeals Code (the Codes) so that the Codes are the single point of reference on admissions accompanied by concise and consistent regulations. The consultation includes three sets of draft regulations: School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012; School Admissions (Appeals Arrangements) (England) Regulations 2012; and School Admissions (Infant Class Sizes) (England) Regulations 2012. The intention is that these will come into force in February 2012 and take effect for the 2013/14 academic year. The consultation closes on 5 December 2011. (10 November 2011)

Essex CC v Williams [2011] EWCA Civ 1315 (CA): W had Down's Syndrome and severe learning difficulties. She had had a Statement of Special Educational Needs (SEN) maintained by the local authority since she was three, and she attended a school which specialised in pupils with severe and complex learning difficulties aged up to 19 years. The local authority wrote to W's parents specifying that they would cease to maintain her Statement after her 19th birthday and stating that her needs could be met by a local FE college. W's father (F) appealed to the First Tier Tribunal, but it struck out the claim on the basis that it had no jurisdiction as W was no longer a child as defined by s.312(5) of the Education Act 1996, as she was over 19. The Upper Tribunal allowed F's appeal, holding that, provided a Statement had commenced before the child was 19 it did not automatically lapse at 19 years, and that W was still a child within s.312 as she was entitled by s.2(5) of the 1996 Act  to complete her course even though she was 19.
The court held, allowing the local authority's appeal, that s.312(5) was absolutely clear and should be interpreted in accordance with common usage. To refer to a young adult of 20 years or more as a "child" would be an impermissible corruption of language that was wholly unnecessary. Part IV was a distinct and separate part of the 1996 Act, in which Parliament deliberately provided a very specific definition for a child with special needs which overrode the wording in s.2(5). Sch.27 para.9(2) provided that local authorities ceased to maintain a Statement for a child who had ceased to be a child for whom they were responsible, and it did not envisage an indeterminate lengthening of secondary education for this group; indeed it specifically provided for what was to happen when such a child ceased to be under 19 years and moved to further education. The Guidance provided a discretionary upper limit which extended the possible provision to the end of the academic year but that did not affect the construction of the Act, it merely enabled a pupil to complete that year. The local authority was not bound to maintain W's Statement because they had ceased to be responsible for her. The case fell squarely within Sch.27 para.9(2) and so the local authority was not required to make a formal decision which was reviewable. (15 November 2011) 

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

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DCLG: Plans for a second year's council tax freeze set out: announces £675m funding for English local authorities to help keep council tax down for a further year. This new support builds on the 2011-12 freeze offer taken up by all councils. The new voluntary scheme will be open to the same councils as last year: councils that freeze or reduce their council tax next year will get a one-off grant equivalent to raising their council tax by 2.5 per cent. Police, and fire & rescue authorities will get a 3 per cent equivalent, with the Greater London Authority and the City of London getting intermediate offers. DCLG has also published an breakdown of funding for each area and an estimate of the grant each participating authority will receive. (14 November 2011)

Audit Commission: Tough times - Councils' responses to a challenging financial climate: this report contains new Audit Commission analysis of revenue account data provided by councils to DCLG. It also summarises the findings of a survey of all local government auditors which gathered their emerging views on the impact of falls in government support and councils' responses as they prepared their plans for 2011/12. The report finds that most councils are managing well in the face of unprecedented reductions to their income, but services have been affected and a small number of councils may struggle to balance their books. Although councils faced a real terms loss of total income of £4.7bn (7.5%) this financial year, auditors felt nine out of ten councils were well prepared for this and would deliver their budgets. It recommends that councils use the Audit Commission's Value for Money profiles to see how their council compares to the national picture set out in this report, identify councils facing similar challenges, and learn from others' approaches. (17 November 2011)

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

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Audit Commission: Protecting the public purse - Fighting fraud against local government: the Commission's annual survey of detected frauds against councils shows that 121,000 scams were detected in 2010/11, including false benefit claims, council tax discount cheating, and unlawful use of social housing. It finds that councils have succeeded in detecting £185m worth of fraud in 2010/11, an improvement of 37 per cent on last year's figure of £135m; also councils recovered nearly 1,800 homes from tenancy fraudsters. The report highlights emerging risks, such as criminals taking advantage of the effort to increase transparency in procurement by using data published on councils' websites to mislead and to redirect payments to and from public bodies.
Alongside this report, the Commission has published Fraud risks in parish and town councils - advice for councillors. (10 November 2011)

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

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Arts Council / LGA: Libraries Development Initiative: announces a £200,000 fund that will build on the Future Libraries Programme. Its overarching aim is to create vibrant, sustainable 21st century library services within the framework of "Achieving great art for everyone" and "Culture, knowledge and understanding: great museums and libraries for everyone". Successful projects will explore how embedding arts and culture in libraries can improve people's experiences, bring benefits to the library service and develop cultural provision in local areas. The fund run from MArch 2012 - March 2013 and will support around 10 projects, with a maximum of £20,000 for any one project. Organisations interested in applying should submit expressions of interest by 2 December 2011. Shortlisted organisations will need to submit an online application form by 20 January 2012. Successful applicants will be announced on 13 February 2012. (9 November 2011)

R (Green) v Gloucestershire CC; R (Rowe) v Somerset CC [2011] EWHC 2687 (Admin) (Admin Ct): G & R were local residents of GCC and SCC respectively, and were users of the authorities' library services. They applied for judicial review of the authorities' decisions to withdraw funding from their static library services, to reduce library opening hours and to withdraw or reduce mobile library services. The decisions were taken as part of the authorities' budget cutting exercise resulting from significant funding cuts from central government. The effect of the decisions was that GCC would shut 10 of its 38 libraries and lose its mobile library service, while SCC would shut 11 of its 34 libraries and reduce its mobile libraries from six to four. Both decisions were taken following consultation, Equality Impact Assessments (EIAs) and analysis of library usage  statistics. G & R contended that in taking the decisions, the authorities had breached their duty under s.7 of the Public Libraries and Museums Act 1964 to provide a comprehensive library service, and also breached their Public Sector Equality Duty under s.149 of the Equality Act 2010.
The court held, granting the application, that neither authority had breached its duty under the 1964 Act. "Comprehensive and efficient" in s.7 did not mean that there had to be blanket coverage across a large and geographically disparate county, and the duty could not be exempt or divorced from resource issues, nor could it escape the financial cuts that were an inevitable result of the country's economic crisis. The requirement to conduct a needs assessment did not mean that the authority had to carry out a discrete information gathering exercise - it could rely on professionals' expertise and on information from a variety of sources. Both GCC and SCC had sufficient information to draw the conclusions that they did and to make lawful decisions as to the future of their library services. However, they had breached their Public Sector Equality Duty: the existence of EIAs was not proof that due regard was paid to the statutory duties. The real question was whether the decision makers had consciously directed their minds to their obligations under the legislation, in particular to the need to exercise the duty  to have due regard in substance and with rigour and based on sufficient information - on the evidence, they had not. (16 November 2011)

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

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Localism Act 2011 Localism Act 2011: the Act has received Royal Assent. Some sections come into force on 15 November 2011, some on 15 January 2011, and the remainder on a day, or days, to be appointed. The Government is aiming for many major measures to come into effect in April 2012, including:
  • General Power of Competence ; 
  • Community Right to Build;
  • planning reforms, including the changes to planning enforcement rules; and
  • reforms to social housing tenure and council housing finance.

DCLG has issued an updated Plain English guide to the Localism Act, along with a summary of what it perceives to be the five key measures in the Act. (15 November 2011)

If you wish to discuss any of the items noted in this section please contact Bethan Evans, Peter Keith-Lucas or Olwen Dutton.

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DCLG: Openness and accountability in local pay - Draft guidance under section 40 of the Localism Act: Part 1 Chapter 8 of the Localism Act 2011 requires relevant authorities to prepare pay policy statements which must articulate an authority's own policies towards a range of issues relating to the pay of its workforce, particularly its chief officers and its lowest paid employees. The measures will come into force on 15 January 2012 and pay policy statements must be in place by 31 March 2012. Ministers are calling on councils to schedule their Full Council meeting as soon as possible so that their pay policy is ready in time for the law change. This paper seeks views on draft guidance on the key policy principles that underpin these pay accountability provisions. The consultation closes on 16 December 2011. (17 November 2011)

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

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Private Finance Initiative

HM Treasury: Government plans to reform PFI model: announces that the Government is to review PFI, with the aim of creating a new delivery model for public assets and services that takes advantage of private sector expertise, but at a lower cost to the taxpayer. The Government’s approach to reform will be to create a model which is cheaper, accesses a wider range of private sector financing sources and strikes a better balance of risk between the private and the public sectors. The review will look at the lessons learnt over the past 20 years of PFI, and will also seek to retain the benefits of the PFI model, including getting projects delivered to time and to budget, and giving the private sector the right incentives to effectively manage risk. It will issue a call for evidence on 1 December. (15 November 2011)

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

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Bevan Brittan's Local Government Training ProgrammeBevan 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 2011/12 include:
  • 23 November (London): Waste and energy review
  • 13 December (London): The Localism Act
  • 10 January (Bristol), 12 January (London) and 18 January (Birmingham): Property and asset rationalisation
  • 8 February (London): Shared services

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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