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 four 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    Governance
   Children's Services    Housing
   Data Protection    Infrastructure
   Delivery of Services    Police Authorities
   Economic Development    Powers and Duties
   Education    Public Health
   Finance    Wales
   Localism Act 2011 Commencement Table (as at January 2012) 
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

House of Commons Health Committee: Social care: this report considers the issues facing the future of social care, and makes recommendations for consideration by the Government in advance of publication of its White Paper on social care and update on funding. It concludes that older people are being let down by fragmented care services. The funding for NHS care, social care and social housing comes from different sources but apart from a few exceptions, attempts to join up these funds and to integrate services have been disappointing. It does not believe that the proposals in the Health and Social Care Bill will simplify this process. The Committee's central recommendation is that the key to joined up services is joined up commissioning - the Government should place a duty on the new clinical commissioning groups and local councils to create a single commissioning process, with a single accounting officer, and a single outcomes framework for older people’s health, care and housing services in their area. (8 February 2012)

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

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Children's Services

Ofsted: Framework for the inspection of local authority arrangements for the protection of children: sets out a new framework for the inspection of local authority arrangements to protect children that will come into effect in May 2012. These no-notice inspections will focus on the effectiveness of the local authority’s child protection services, and the local authority’s leadership of strategic partners in their shared work to help and protect children and young people who are suffering, or likely to suffer, harm from abuse or neglect. (31 January 2012)

DfE & MoJ: The Government's response to the Family Justice Review - A system with children and families at its heart: David Norgrove's independent review of family justice in England and Wales reported in November 2011. This response accepts most of the Review's recommendations on reform of the family justice system and sets out how they will be taken forward. The proposals include:

  • a statutory time limit of six months for the completion of care and supervision cases;
  • new, clearer powers to ensure that the child’s welfare and their timetable must be considered in determining how quickly cases progress;
  • removal of duplication by making clear that in the majority of cases the detail of the Care Plan could and should be left to the local authority;
  • giving judges greater discretion over the duration of Interim Care Orders and their renewal;
  • overhauling the adoption process and timeframe for recruiting prospective adopters; 
  • removing other barriers and delays to the adoption decision-making process for the child, including promoting more use of concurrent placements and early family finding.

(6 February 2012)

R (R) v Croydon LBC (Unreported, Admin Ct): R, an Afghani national, applied for judicial review of the local authority's refusal to treat him as a former relevant child under s.23C of the Children Act 1989. When R arrived in the UK, he claimed he was 15 years old but the local authority determined that he was at least 18. The UK Border Agency (UKBA) provided R with accommodation while the local authority undertook an age assessment. At a fact-finding hearing the judge ruled that R was now over 18 but that he would have been a child at the time of the age assessment. R claimed that the local authority had provided him with accommodation under s.20 of the 1989 Act and so he was now a former relevant child.
The court held, granting R's application, that R was a child in need when he first came to the local authority's attention and so it had a duty under s.20 to find him accommodation. The fact that it was the UKBA who had provided R's accommodation did not mean that it could not be deemed to have been provided by the local authority under s.20. Accordingly, R was a former relevant child within s.23C, and the local authority should provide him with the services to which he was entitled pursuant to that status. (10 February 2012)
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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Data Protection

MoJ: Call for evidence on the European Commission's data protection proposals: seeks evidence on new legislative proposals for data protection that were published by the European Commission on 25 January 2012 (see Authority Update 27/1/12). The proposals consist of a draft Regulation setting out a general EU framework for data protection and a draft Directive on protecting personal data processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and related judicial activities. Data controllers, rights groups, information policy experts and other interested parties are invited to provide information about the likely impact of the Commission's proposals, to assist the Government in its forthcoming negotiations for an effective EU data protection legislative framework. The closing date for submissions is 6 March 2012. (7 February 2012)

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

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Delivery of Services

DCLG: Supporting weekly collections – Prospectus and bidding forms for applicants: DCLG has launched the Weekly Collection Support Scheme which will provide up to £250m to support local authorities in delivering weekly collections of household waste and recycling. DCLG states that the new fund will help support reward schemes where families are rewarded for recycling; it also explicitly intends to tackle 'bin blight' and the proliferation of bins, by supporting new technology where possible. The fund will promote innovation, better procurement and joint working across local authorities, and is intended to support a range of local initiatives to increase recycling and deliver weekly collections. The fund is open to bids from English local authorities that wish to introduce, reinstate or retain weekly collections of household waste. Funding bids will be evaluated on how well they deliver a weekly collection service to residents, value for money and improved environmental benefit. The closing date for expressions of interest is 16 March 2012; outline bids must be made by 11 May and final bids by 17 August 2012. (3 February 2012)

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

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Economic Development

DCLG: Portas pilots – Prospectus:  An invitation to become a Town Team: Mary Portas’s High Street Review set out a vision for the high streets of the future and made a number of key recommendations aimed at identifying what government, local authorities, businesses and communities could do together to promote the development of new models of prosperous and diverse high streets. DCLG is now inviting local partnerships and consortiums to test the Town Team idea in the Portas Review and provide an opportunity for local partnerships to develop and share knowledge about the effectiveness of various options for high street improvement. Applicants should come up with innovative ideas about how to transform their local high street into a multi-functional and social place, bustling with people, services and jobs. DCLG is looking to fund about 12 pilots, worth up to about £100,000 each, paid through s.31 unringfenced revenue grant paid directly to the relevant local authority. The closing date for applications is 30 March 2012. (4 February 2012)

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

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Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2011 (SI 2012/206): this Order, which came into force on 30 January 2012, provides for pilot schemes to be set up in 36 specified local authority areas to test direct payments for special educational provision and educational and training needs and transport arrangements for children with SEN Statements, under s.532A(1) of the Education Act 1996. The pilot schemes will run for two years. (29 January 2012)

School Admissions Code and School Admission Appeals Code (Appointed Day) Order 2012 (SI 2012/216): this Order appoints 1 February 2012 as the day on which the new School Admissions Code and School Admission Appeals Code come into force. The Codes replace all previous versions. Local authorities, governing bodies of maintained schools, Admission Appeal Panels and the Schools Adjudicator have a duty under s.84(3) of the School Standards and Framework Act 1998, when exercising their admission arrangements functions under Chapter 1 of Part 3 of the 1998 Act, to act in accordance with the Codes. The Admissions Code will principally affect admission arrangements for the academic year 2013-2014 while the Appeals Code will apply to appeals lodged on or after 1 February 2012. (30 January 2012)

DfE: Use of reasonable force: this non-statutory advice clarifies the use of force by school staff and makes clear school leaders' and governing bodies' responsibilities in respect of this power. It replaces previous guidance for schools on the use of force to control and restrain pupils. (8 February 2012)

DfE: Screening, searching and confiscation: this non-statutory advice explain schools’ powers of screening and searching pupils. In particular it explains the use of the power to search pupils without consent. It also explains the powers schools have to seize and then confiscate items found during a search. (8 February 2012)

Ofsted: A good education for all: seeks views on proposals for amended inspection arrangements for maintained schools and academies from September 2012. The proposals include plans to replace the 'satisfactory' judgement with ‘requires improvement’ and for all school inspections to be undertaken without notice.  The Chief Inspector has also announced a raising of expectations for outstanding schools and a tighter focus on the way in which headteachers are driving the quality of teaching in their schools. The consultation closes on 3 May 2012. (9 February 2012)

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

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DCLG: Over 150 councils already pledging to freeze or cut council tax: reports that 152 local authorities have signalled their intention to take part in the Government's 2012-13 council tax freeze initiative. Under the scheme, local authorities that do not put up their council tax will receive a grant worth 2.5% of their council tax income. (30 January 2012)

DCLG: The Housing Revenue Account self-financing determinations: sets out the final five Determinations to implement self-financing for council housing: Settlement Payments; Limit on Indebtedness; Housing Revenue Account Subsidy Amendment for 2011-12; Item 8 Credit and Debt Amendment for 2011-12; and Item 8 Credit and Debit for 2012 onwards. DCLG has also published the final spreadsheet models which have been used to calculate the self-financing valuations, settlement payments and debt limits set out in the determinations. (1 February 2012)

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2012 (SI 2012/265): these regulations, which come into force on 31 March and 1 April 2012, make a number of "technical" amendments to the Capital Finance and Accounting Regulations 2003 (SI 2003/3146). In particular, they amend the rules on securitisation transcations to ensure that, if securitisation is ever used, it will be on an equal footing with borrowing and other forms of credit and will have to be judged affordable. They also amend reg.25 of the 2003 Regulations so that purchases of bonds of individual companies will no longer be capital expenditure, and amend the definition of capital expenditure in reg.25(1)(ea) so that it refers to expenditure on the “acquisition, production or construction of assets for use by, or disposal to, a person other than the local authority".
DCLG has also issued its Response to the consultation on changes to the local government capital finance system (October 2011) in which it summarises the consultation responses and sets out how it intends to proceed. It also states it will be revising the DCLG Minimum Revenue Provision Guidance to ensure that authorities taking on new debt in the course of HRA reform do not face disproportionate increases in their Minimum Revenue Provision liability. A revised version of the guidance will be placed on the DCLG website shortly but in the meantime authorities should use the proposal as the basis for their statements, where applicable. (8 February 2012)

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

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Local Authorities (Conduct of Referendums) (England) Regulations 2012 (SI 2012/323): these regulations, which came into force on 9 February 2012, provide for the conduct of referendums to be held under Part 1A LGA 2000 relating to the question of whether an English county council, district council or London borough council should change its existing governance arrangements. The principal changes from the current regulations (SI 2007/2089) are to apply the procedural rules for conducting referenda to referenda on the questions of whether a local authority should adopt the committee system of governance and whether a specified local authority should adopt the mayor and cabinet  executive. 
Mayoral Referendum Orders have been made for each of the 10 cities that are required to hold a referendum on whether to change to a Mayor and Cabinet form of governance. Each Order requires the specified city to hold a referendum on 3 May 2012 and sets out the action to be taken after the referendum - see SIs 2012/324 - 2012/333 on the Legislation website. (8 February 2012)

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

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DCLG: £20 million for safety net against repossession: the Housing Minister has launched the Preventing Repossessions Fund that will help housing authorities to comply with their statutory duty to ensure that information and advice to prevent homelessness is available, by enabling them to offer small interest free loans to struggling homeowners. The funding includes £1m to ensure that all courts are able to offer a viable Court Desk advice service, where it is not already provided by the Legal Services Commission or independently. (9 February 2012)

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

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DfT: Devolving local major transport schemes: seeks views on a new system of prioritising and funding for local major transport schemes. The new system could potentially see decisions on capital funding for local schemes (including new local roads, public transport schemes, better pedestrian routes and new local rail stations) devolved to democratically accountable local transport bodies. Currently central government must approve all schemes over £5m. The Government is proposing that from 2015 local transport bodies will be able to decide for themselves how to spend their money on priorities best suited to their local needs without Whitehall approval. A new system, once in place, will enable construction to begin after the end of the current Spending Review period (2014/15). The consultation closes on 2 April 2012. (31 January 2012)

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

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Police Authorities

Home Office: What partners need to know: the role of the new Police and Crime Commissioners, following election on 15 November 2012, is to ensure that community needs are met as effectively as possible, and to improve local relationships through building confidence and restoring trust. They will also work in partnership across a range of agencies at local and national level to ensure there is a unified approach to preventing and reducing crime. This booklet provides information on the way that partners can work with Police and Crime Commissioners, the wider effects of policing reforms and advice on what local leaders can do to prepare for the change. (26 January 2012)

Home Ofice: Police and Crime Commissioners timeline: gives details of some of the key dates and events during the roll-out of Police and Crime Commissioners up to March 2013. (26 January 2012)

Home Office: Obtaining better value for money from police procurement: seek views on proposals to specify contractual arrangements to be used by the police service to procure equipment and services. It follows a previous consultation in 2010 that resulted in the Police Act 1996 (Equipment) Regulations 2011 being made. This consultation proposes to extend the scope of the 2011 Regulations requiring specified framework agreements to be used when specified equipment and services are provided for the police. The consultation closes on 27 April 2012. (3 February 2012)

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

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Powers and Duties

R (National Secular Society and Bone) v Bideford Town Council [2012] EWHC 175 (Admin) (Admin Ct): the NSS applied for judicial review of the Town Council's decision to retain public prayers at its full Council meetings. B, a former town councillor,  had complained about the Town Council's practice of saying public prayers at its full Council meetings, after his motions to stop prayers being said were twice rejected by the majority of councillors. The NSS claimed that the practice breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement "public sector equality duty" in the Equality Act 2010, and that it breached B's rights under Art.9 and Art.14 ECHR. It also claimed that the practice was outside the powers of s.111 LGA 1972.
The court held, granting the application, that the saying of prayers as part of the formal meeting of a council was not lawful under s.111 and there was no statutory power permitting the practice to continue. There was no specific power to say prayers or to have any period of quiet reflection as part of the business of the council. Section 111 was the statutory expression of the powers implied by common law for corporations, and its language required an objective standard or test: it was not a question of whether the Council reasonably considered that a particular act would facilitate or be conducive to or incidental to the discharge of its functions but required an objective judgment of what was likely to facilitate the discharge of functions. The contradiction in the Council's argument was that it had made the prayers part of its formal business but it contended that councillors were not obliged to be present nor participate and so treated the practice as being outside the scope of the meeting. The practice could not be calculated to facilitate the transaction of business or any other functions if, for it to take place at all, it was necessary to give councillors the choice not to attend; nor could it be conducive to the transaction of business or to the exercise of any functions if it did not matter if councillors attended or not. Even quite a wide interpretation of s.111would still require the court to take a view about the extent to which public prayers in the formal Council meeting were likely to facilitate, or be conducive to or incidental to, the performance of the Council's functions. That was not a view which the Court should form, let alone when some were disturbed in the performance of their duties by just such public prayers. It was not for a court to rule upon the likelihood of divine, and presumptively beneficial, guidance being available or the effectiveness of Christian public prayer in obtaining it and s.111 could not be construed so as to impose such an obligation on the court.
As a general point, the 1972 Act, dealing with the organisation, management and decision-making of local councils, should not be interpreted as permitting the religious views of one group of councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They were all equally elected councillors. If the practice were lawful, the manner in which it was carried out did not infringe either B's human rights nor did it unlawfully discriminate indirectly against him on the grounds of his lack of religious belief. (10 February 2012).

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

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Public Health

DH: Baseline spending estimates for the new NHS and Public Health commissioning architecture: provides estimates of how 2010-11 spending by PCTs would be deployed under the new commissioning arrangements proposed in the Health and Social Care Bill. The main data sources are two major collections of financial information from PCTs which have been brought together with information from other sources to provide these estimates of baseline spend. The baseline estimates, which have been uplifted to 2012-13 values, provide local authorities and emerging Clinical Commissioning Groups with the information they need to support initial planning for the commissioning responsibilities they will take on in the future. (7 February 2012)

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

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National Assembly for Wales (Official Languages) Bill: this Bill has been introduced into the National Assembly and is currently at Stage 1 (Committee consideration of general principles). It clarifies the duties of the National Assembly and the Assembly Commission in relation to the provision of bilingual services and places them on a sound statutory footing. The Bill's progress can be followed on the National Assembly's web page. (30 January 2012)

Welsh Government: Draft statutory guidance from the Local Government Measure 2011: the Local Government Measure 2011 introduces new duties and powers in the fields of promoting and support membership of local authorities, local authority democratic services, local authority functions, overview and scrutiny committees and audit committees. The Welsh Ministers now seeks views on draft statutory guidance to which local authorities must have regard. The guidance relates to various provisions in the 2011 Measure that deal with council meetings, discharge and exercise of functions and committees. The consultation closes on 30 March 2012. (3 February 2012)

Welsh Government: More than just words - Consultation on a Strategic Framework for Welsh Language Services in Health, Social Services and Social Care: seeks views on on a proposed three year Strategic Framework for Welsh language services in health and social care that sets out how the Government will provide a high quality health and social care service that will satisfy the needs of Welsh speakers and their families or carers, by ensuring they are able to receive services in their own language through the care process. The consultation closes on 30 April 2012. (8 February 2012)

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 2012 include:

For a list of all Bevan Brittan seminars see the Events page on our website. If you wish to attend an LGG seminar that we are hosting at our offices, please book with LGG direct.

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