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    Health and Social Care
   Anti Social Behaviour    Human Rights
   Benefits    Officers
   Children's Services    Police Authorities
   Community Engagement    Policies
   Data Protection    Powers and Duties
   Education    Regulatory Services
   Equality and Discrimination    Tortious Liability
   Localism Act 2011 Commencement Table (as at February 2012) 
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

DH: Safeguarding and quality in commissioning care homes: this guide aims to support local authority and NHS commissioners of care homes to ensure that safeguarding is central to the commissioning process and a primary concern for residential and nursing care home providers. It identifies six guiding principles on safeguarding which seek to increase the protection for those most at risk in society: Empowerment; Protection; Prevention; Proportionate Responses; Partnership; and Accountability. It also has links to the legislative and policy framework. (13 February 2012)

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

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Anti Social Behaviour

DCLG: Building safe, active communities - Strong foundations by local people: this report, the third from the Government's Champion for Active, Safer Communities Baroness Newlove, sets out progress on her three priorities: tackling problem drinking, turning the civil service into a 'civic' service, and finding a web 'hub' for community activists to use. It also outlines a new £1m Alcohol Fund to help local agencies, businesses and local people to come together and tackle problem drinking in partnership. The report includes an update on the 12 challenges to action around anti-social behaviour and alcohol that Baroness Newlove put to Government in her first report. (14 February 2012)

Leary v Chief Constable of the West Midlands Police (Unreported, Admin Ct): L appealed against the Chief Constable's decision to apply for a closure order under s.2 of the Anti-Social Behaviour Act 2003 in respect of L's premises. L contended that in order to comply with Art.8 ECHR, it was necessary for the police and local authority to demonstrate that they had first considered and tried other less draconian measures before seeking a closure order.
The court held, dismissing the appeal, that it was not necessary for the police and local authority to have considered and tried other measures before applying for a closure order. Where the premises in question constituted a person's home, Art.8 was engaged and such an order needed to be necessary and proportionate to achieve the legitimate aim in closing the premises. There was no requirement that the police or local authority needed to show that they had considered other less draconian measures, and the case law did not contemplate the need for any such requirement under Art.8; although a closure order might have a draconian effect, the misuse of premises also had a grievous effect. The guidance to the Act showed that the police and local authority might consider alternative options to a closure order, but it did not state that it was a requirement to do so. (17 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 Bethan Evans.

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Oxford City Council v Basey (by his litigation friend May) [2012] EWCA Civ 115 (CA): the Council appealed against the Upper Tribunal's decision that B resided in sheltered accommodation for the purpose of the Housing Benefit Regulations 2006, and so was entitled to have his share of the costs of fuel for, and cleaning of, the rooms of common use in his accommodation included in his eligible rent for the purpose of calculating the amount of his housing benefit. H was 64 and had severe learning difficulties. He shared a housing association property with three other tenants, each of whom had their own bedroom and shared other facilities. Care, support and supervision was provided by staff 24 hours per day. The council argued that B's accommodation could not be sheltered accommodation because there was no warden and because B's exclusive occupation was not self-contained. It contended that there were six essential features which must all be present for accommodation to be sheltered accommodation, namely it must be: self-contained; grouped on a site; designed specifically for the elderly, disabled or vulnerable people; be served by a warden; have an emergency alarm system; and have a communal common room and gardens.
The court held, dismissing the Council's appeal, that the Upper Tribunal’s conclusion that the type of accommodation occupied by B was sheltered accommodation for the purpose of the Regulations was correct. The submission that all six common features must exist for there to be sheltered accommodation was an attempt to impose a highly prescriptive definition of “sheltered accommodation”. Parliament had deliberately chosen not to define "sheltered accommodation" and the court should not impose a prescriptive definition upon an inherently flexible concept which could take many different forms, and which included very sheltered or extra care sheltered accommodation. (15 February 2012)

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

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Children's Services

Ofsted: Children's care monitor 2011: this annual report from the Children’s Rights Director for England  brings together the views of 1,870 children and young people in care; it also reports the views and experiences of children living away from home in boarding schools and residential FE colleges. It looks at things that are important to children including keeping safe, bullying, having a say in what happens, placements, making complaints and what happens once the child leaves care. This year's survey included a new focus on children’s experiences of placement change in care which found that 55% of the children in care were only given a week or less notice before they were last moved to live in a different placement, while 23% reported that they were given no notice at all of their last move and were told on the same day they were moved. The survey also found a high level of separation of siblings in care. (24 February 2012)

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

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Community Engagement

Cabinet Office: Expanding NCS - Pre-procurement market engagement: the Government has launched a period of market engagement on its plans for expanding the National Citizen Service (NCS) under which young people from very different backgrounds are brought together into a team for three weeks, with a common objective, to give something back to their local community and achieve something of which they can be proud. The ambition is to make NCS a universal programme so that it becomes a rite of passage for all 16-year-olds and the Government is committed to providing 90,000 places by 2014. In order to do this it needs voluntary, business and public sector organisations to run the schemes around the country. The deadline for responses is 16 March 2012. (14 February 2012)

DCLG: Creating the conditions for integration: sets out the Government's new localist approach to achieving a more integrated society, focusing on creating the conditions for everyone to live and work successfully alongside each other. (21 February 2012)

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

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Data Protection

ICO: Council fined for serious email disclosure: reports that a council has been ordered to pay a monetary penalty of £80,000 under s.55A of the Data Protection Act 1998 for failing to take appropriate measures to ensure the security and appropriateness of disclosure when emailing personal information, in breach of the Seventh Data Protection Principle, after a council employee sent an email to the local voluntary sector co-ordinator via her personal email account. The email asked the co-ordinator to alert local voluntary workers to a police force’s concerns about an individual who was working in the area and contained the name and an alleged alias for the individual as well as information about the police's concerns. It was then forwarded by the co-ordinator to 100 intended recipients, who in turn forwarded it to 180 unintended recipients. (15 February 2012)
The ICO has issued Guidance for organisations on the security measures that should be in place when handling personal data.

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

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DfE: LDA guidance for local authorities: statutory guidance on carrying out their duties relating to Learning Difficulty Assessments (LDAs) conducted under s.139A of the Learning and Skills Act 2000. The guidance helps local authorities to make consistent, effective and robust judgements that will lead to well-informed decisions relating to education and training for young people with learning difficulties and/or disabilities. The DfE plans to replace the current LDAs and the SEN Statement with a single assessment process and Education, Health and Care Plan which will follow the young person from birth to 25. Until this new approach is introduced, this statutory guidance for LDAs will remain in place. (13 February 2012)

DfE: Free School groups set to apply for 2013: announces that the DfE is now accepting applications from groups that want to open mainstream, special and alternative provision Free Schools or Studio Schools in September 2013. DfE has also published Guidance on the Free School application process. The deadline for applications is 24 February 2012. (13 February 2012)

School Finance Regulations 2012 (SI 2012/335): these regulations, which come into force on 15 March 2012, provide for the financial arrangements of local authorities in relation to the funding of maintained schools and providers of prescribed early years provision in England, for the financial year 2012-2013. THey define the local authority education budgets (the non-schools education budget, the schools budget, the central expenditure and the individual schools budget) and set out how local authorities are to allocate funding from the individual schools budget (ISB) to maintained schools and private, voluntary and independent providers of free early years provision (relevant early years providers) through a locally determined formula. The 2012 Regulations relate only to the 2012-13 financial year because there is to be a wider review of the school funding system for 2013-14 onwards. They revoke and replace the School Finance (England) Regulations 2008 (SI 2008/2280), as amended. (16 February  2012)

School Governance (England) (Amendment) Regulations 2012 (SI 2012/421): these regulations, which come into force on 17 March 2012, make minor changes to the School Governance (Constitution) Regulations 2007 (SI 2007/957) and to the School Governance (Federation) Regulations (SI 2007/960) concerning the eligibility criteria for the appointment of foundation governors in foundation and voluntary aided schools. They also make a number of amendments to both sets of regulations largely to clarify their drafting. (24 February 2012)

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

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Equality and Discrimination

LGA: Councils must consider equality laws when changing services: the LGA is advising councils and housing associations who are considering altering services or changing their housing allocation policies to use new guidelines to check that they comply with the Equality Act 2010. They have launched an Equality Framework and a Social Housing Equality Framework to help councils to consider the impact that their policies have on the people who live in their area, and meet their wider requirements under the Equality Act. (16 February 2012)

Equality Act 2010 (Amendment) Order 2012 (SI 2012/334): this Order, which comes into force on 6 April 2012, amends s.147 of the 2010 Act (meaning of "qualifying compromise contract") to address a perception that the section is currently defective. It amends the wording of s.147 to make it clear that a complainant’s legal adviser is not precluded from being an “independent adviser” to the complainant. (13 February 2012)

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

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DCLG: Changes to the capital finance system: this informal commentary summarises the intended effect of the Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2012 (SI 2012/265) that come into force on 31 March and 1 April 2012. The main effects are to bring securitisation within the capital finance framework, relax the rules on bond investments, and clarify the definition of capital expenditure. (16 February 2012)

LGA: Councils receive first £100 million in Icelandic bank payouts: reports that the first £100m recovered from collapsed Icelandic bank Landsbanki is to be paid into council accounts. The payment follows successful legal action, coordinated by the LGA and led by Bevan Brittan, to secure priority creditor status for 123 UK local authorities, following the winding up of Icelandic banks Landsbanki and Glitnir. (20 February 2012)

Local Authority (Referendums Relating to Council Tax Increases) Regulations 2012 (SI 2012/460): Chapter 1 of Part 5 of the Localism Act 2011 amends the Local Government Finance Act 1992 so as to introduce council tax referendums which must be held if an authority sets an excessive relevant basic amount of council tax; it also change the requisite calculations which authorities must make when calculating their council tax for a financial year. These regulations, which come into force on 16 March 2012, make consequential amendments to a number of existing SIs so as to give full effect to the Localism Act's changes regarding council tax referendums and requisite calculations. In particular, they specify rules for the calculation of item T in s.52ZX(5) of the 1992 Act, and prescribe a period within which a billing authority must notify a local precepting authority of this item. (24 February 2012)

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

LGI&D: Must-knows on health and well-being: elected members and local authority officers will play a key role in improving the health of their communities. This web page highlights good practice in health leadership and signposts support that is available to local authorities to support them in fulfilling their health leadership role. These 20 'Must Knows' are designed to provide the key information members need, in bite size chunks arranged in four sections:

  • Why is this important?;
  • The role of the local authority;
  • Key tasks for elected Members; and
  • Useful links: where to find out more.

(13 February 2012)

DH:  Guidance to support the provision of healthcare Public Health advice to Clinical Commissioning Groups: draft guidance for local public health teams and Clinical Commissioning Groups (CCGs) on the healthcare public health advice (also known as the 'core offer') that is aimed at helping commissioners with local planning in this transition year. The intention is to make it a mandatory requirement for local authorities, from April 2013, to provide this service to CCGs, but the detail of the arrangements will need to be planned locally. The core offer follows on from the Healthy Lives, Healthy People White Paper consultation on the funding and commissioning routes for public health. Comments are required by 30 March 2012. (22 February 2012)

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

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Human Rights

City of London Corporation v Samede (Representative of those persons taking part in a protest camp at St Paul's Churchyard, London EC4) [2012] EWCA Civ 160 (CA): the council sought an order for possession of highway land and other open land in the churchyard of St Paul's Cathedral, which had been occupied by the defendants as a protest camp, along with injunctions to require the removal of the tents and other structures comprised in the camp. The issues were whether: (1) the council had established that it was entitled to an order for possession of the land, subject to the court's consideration of the interference with the defendants' rights under Arts.10 and 11 ECHR; (2) the council should succeed in its claim for injunctive and declaratory relief (again subject to consideration of the interference with the defendants' rights); and (3) the interference with the defendants' rights under the ECHR would be lawful, necessary and proportionate. The High Court held that the council had convincingly established a pressing social need not to permit the defendants' protest camp to remain on the land and to prevent it being located elsewhere and it would not be disproportionate to grant the relief claimed. 
The Court of Appeal held, dismissing the appeal, that the judge had given a very clear and careful judgment in which he reached a conclusion that he was plainly entitled to reach. The defendants' rights under Arts.10 & 11 ECHR were engaged in relation to the maintenance of the camp; however, the limits to the right of lawful assembly and protest on the highway were fact-sensitive and would normally depend on a number of factors, including the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others. However, the defendants' Art.10 and Art.11 (and possibly Art.9) rights were not nearly close enough to balancing the factors in favour of making the judge's orders. There was no chance that any of the criticisms raised by each of the defendants, or even all of those criticisms taken together, could persuade an appellate court that the judge's decision was wrong. (22 February 2012)

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

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DCLG: Openness and accountability in local pay - Guidance under section 40 of the Localism Act: Part 1 Chapter 8 of the Localism Act 2011 requires local authorities and fire and rescue authorities to approve and publish annually a pay policy statement which authorities will be required to follow, including when setting senior pay. The statement must articulate an authority's own policies towards a range of issues relating to the pay of its workforce, particularly its senior staff (or 'chief officers') and its lowest paid employees. This statutory guidance sets out the key policy principles that underpin the Act's pay accountability provisions. (17 February 2012)

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

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Police Authorities

LGA: Police and Crime Commissioners Association - a prospectus: the LGA is establishing a national representative body for Police and Crime Commissioners – the Police and Crime Commissioners Association (PaCCA). This prospectus sets out how the LGA will support the new Police and Crime Commissioners. (15 February 2012)

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

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R (McDonagh) v Hackney LBC (Unreported, Admin Ct): M, a traveller, applied for judicial review of the authority's pitch allocation policy for the traveller community. The council's policy required travellers to demonstrate that they lived in the borough or had a connection to the area. They had to provide documentary evidence of a local address to register under the policy and to renew their registration annually to remain on the list.
The court held, refusing the application, that, applying the approach laid down in R (Ahmad) v Newham LBC [2009] UKHL 14, the administrative procedure which gave effect to the policy was reasonable, fair and not unduly burdensome, and travellers could reasonably be expected to follow it, therefore it was not irrational. There was no irrationality in the starting point of requiring a connection with the local authority's area as it was necessary to afford priority to those who lived in the area or had a firm point of contact there; nor was it irrational to require travellers to renew their registration on the waiting list. Given the competition for pitches, it was essential that those on the list continued to meet the relevant criteria, otherwise the list would become unmanageable. (15 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 Bethan Evans.

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Powers and Duties

Draft Localism Act 2011 (Consequential Amendments) Order 2012: this Order, once in force, amends other pieces of legislation in consequence of provisions of the Localism Act 2011 relating to powers of local authorities, land compensation and neighbourhood planning. In particular, it amends references to the wellbeing power in various Acts and statutory instruments so that they refer instead to the General Power of Competence in Chapter 1 of Part 1 of the 2011 Act. (13 February 2012)

Localism Act 2011 (Commencement No. 3) Order 2012 (SI 2012/411 (C.11)): this Order brings into force on 18 February 2012 Chapters 1 & 2 of Part 1 of the 2011 Act relating to the general powers of English local authorities and fire and rescue authorities. (17 February 2012)

Draft Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012: this draft Order prescribes the conditions that must be met by a parish council in order for it to be eligible to use the General Power of Competence for local  authorities set out in s.1 of the Localism Act 2011. (21 February 2012)

DCLG: Freedom to pray - Advice to parish councils: following the Bideford Town Council prayers case (see Authority Update 10/2/12), DCLG has issued guidance to parish councils on holding formal prayers as part of the formal business at council meetings. Part 1 of the Localism Act 2011 applies the new General Power of Competence (GPoC) to "eligible" parish councils and this note explains the required conditions for parish councils to be "eligible". The note states that once the GPoC is in place, eligible parish councils will be able to include prayers as part of their formal business. The Secretary of State has also written to local authority leaders, local council clerks and faith leaders about this guidance. (21 February 2012)
Bevan Brittan has issued an Alert Praying for sense in Bideford that considers the judge's reasoning in the Bideford case and discusses whether in practice the GPoC will achieve the desired effect.

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

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Regulatory Services

MoJ: Transforming bailiff action: seeks views on proposals to simplify and clarify the bailiff process, improve the accountability of enforcement agents and address unnecessary or inappropriate enforcement activity. It sets out how ethical activity should be enshrined in law so bailiffs can continue to enforce the payment of debts and fines. The consultation closes on 14 May 2012. (17 February 2012)

Swindon BC v Forefront Estates Ltd [2012] EWHC 231 (TCC): the Technology & Construction Court has held that the Council were entitled to recover sums it had paid for emergency works to a dangerous building under s.78 of the Building Act 1984. F, the owner of the building, argued that s.78(5) prevented the recovery of expenses where the local authority might reasonably have proceeded instead by applying to a magistrates' court under s.7791) of the 1984 Act for an order requiring the owner to deal with the dangerous building.
The court held that, given the building's dangerous condition and the serious risk posed by falling masonry, asbestos or lead contamination were its roof to collapse, it was necessary for the Council to take immediate action to remove the danger. This case was not one in which the Council might reasonably have proceeded under s.77(1) instead of s.78. The court assessed the sums that had been reasonably incurred by the Council and which it could recover at £332,372.10 including VAT, fees and 4% interest. The court also ordered F to pay the Council's costs, assessed at £60,128.30. (14 February 2012)
The judgement is available on Lawtel (password required). 

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

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Tortious Liability

Armstrong (by her mother & litigation friend Karen Armstrong) v Keepmoat Homes Ltd and Northumberland CC (Unreported, QBD): A claimed damages under the Occupiers' Liability Act 1957 and in negligence for personal injuries suffered in a road accident. A, when aged 12, had been struck by a car when she attempted to cross a dual carriageway. She had not used either the footbridge or the subway that provided a safe pedestrian crossing of the road but instead had walked along land belonging to the Council close to a housing estate constructed by KH, and passed through a "significant" gap in the undergrowth to reach the road. A contended that KH had created a danger by removing a fence and enlarging the gap that it had covered and that the Council, by failing to put up a fence, had failed to take steps to prevent visitors from gaining access to a fast moving dual carriageway. A local resident, whom the Council regarded as a vexatious complainant following numerous unsubstantiated formal complaints about  various local issues, gave evidence that KH had removed a fence in order to erect an advertising hoarding (which KH denied) and that he had notified the Council that the fence was missing.
The court held, dismissing the claim, that A's accident did not arise as a result of a breach of the common duty of care owed by the 1957 Act or a breach any residual common law duty. On the evidence, KH had not removed the fence and so was not liable. It was beyond argument that the Council should have known of the existence of the path and the fact of ready access to it, and so it had constructive knowledge of the existence of the gap and its path. The test of liability was whether what A did had been impliedly assented to. Whilst the use of the path was assented to, what A did after she left the Council's land was not, either expressly or impliedly. There was no duty, either under the 1957 Act or at common law, on an occupier to prevent a visitor from leaving his land so as to prevent the visitor from coming into contact with a danger on neighbouring land (Tomlinson v Congleton BC [2003] UKHL 47 applied). The use of the path may have given rise to the opportunity to do that which she did after she left the Council's land, but that opportunity did not give rise to any breach of the 1957 Act. (3 February 2012)

Siveter v Wandsworth LBC (Unreported, CA): S, a council tenant, appealed against the decision that the council was not liable for an infestation of poultry mites in her flat. The council had sent a pest control company to remove a pigeon's nest over a cupboard that was outside her flat, and de-infest the area. It was common ground that pigeons were hosts to poultry mites. The mites got into S's flat via the cupboard and made it uninhabitable. S claimed that the council had breached its obligation as landlord and its common law duty of care to take reasonable steps to abate the infestation. The council submitted that the judge had been entitled to find that it was reasonable not to have sprayed the cupboard because it was not reasonably foreseeable that the poultry mites would migrate into S's flat.
The court held, allowing the appeal, that there was uncontradicted evidence that the cupboard should have been de-infested if found open, or if locked, advice should have been given that that was necessary. The judge had failed to grapple with the unanimity of evidence and his judgment could not stand. (16 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 Steven Eccles.

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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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