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    Highways
   Audit    Housing
   Children's Services    Licensing
   Delivery of Services    Localism Act 2011
   Education    London
   Equality and Discrimination    Parish Councils
   Fire and Rescue Authorities    Shared Services 
   Fraud    Wales
   Localism Act 2011 Commencement Table (as at 6 April 2012) 
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

DH: Transparency in outcomes - a framework for quality in adult social care: the Adult Social Care Outcomes Framework (ASCOF) is a set of outcome measures, which have been agreed to be of value both nationally and locally for demonstrating the achievements of adult social care. It gives an indication of the strengths of social care and success in delivering better outcomes for people who use services and so supports the Government’s role in reporting to the public and Parliament on the overall system, and influence national policy development. It may also be used locally for benchmarking and comparison between areas. This revised ASCOF updates and replaces the 2011/12 version. It describes: the principles for the way in which the ASCOF should be used, and its relationship with local outcome measurement; sets out the detail for each of the domains in the ASCOF, including the specific measures agreed for 2012/13; and details the next steps for future development of the outcomes based approach and improvements to the ASCOF over coming years. There is also a Handbook of Definitions. (30 March 2012)

Ofsted: Social care registration handbook: guidance for Ofsted staff on the processes of registering voluntary adoption agencies, adoption support agencies, children’s homes, independent fostering agencies and residential family centres. (2 April 2012)

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

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Anti Social Behaviour

Riots Victims and Communities Panel: After the riots - the final report of the Riots Victims and Communities Panel: this is the final report of the independent panel that was set up to explore the causes of the riots in August 2011. The report makes wide-ranging public policy recommendations to ensure the risk of future riots seen on the scale of last August can be significantly reduced, based around six key themes: Children and parents; Building personal resilience; Hopes and dreams; Riots and the brands; The usual suspects; and Police and the public. The recommendations include:

  • Government and local public services should develop a strategy incorporating the principles of the Troubled Families Programme to help 500,000 ‘forgotten families’ turn their lives around.  
  • Schools should assume responsibility for helping children build character.  
  • Where schools fail to teach children to read and write they should pay a financial penalty, used to help the pupil ‘catch up’.  
  • Government and local public services should fund together a ‘Youth Job Promise’ scheme to get young people a job, when they have been unemployed for a year.

(28 March 2012)

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

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Audit Commission: Procurement of audit for smaller public bodies: confirms the award of five-year contracts to four firms to audit the country's 9,800 smaller local public bodies (mostly parish and town councils and internal drainage boards), following the expiry of the stnadstill period. The four firms are: BDO LLP; Grant Thornton (UK) LLP; Littlejohn LLP; and Mazars LLP. (30 March 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

DfE: Statutory guidance on the roles and responsibilities of the Director of Children's Services and the Lead Member for Children's Services: this revised guidance covers the legislative basis for the two appointments, roles and responsibilities of the post holders, and how this relates to Government expectations about local authorities’ role in education and children and young people’s services. Local authorities in England must have regard to it in relation to the appointment of the Director of Children’s Services and the designation of the Lead Member for Children’s Services. It replaces the previous versions, issued in 2005 and 2009. (2 April 2012)

Ofsted: Right on time - exploring delays in adoption: this report  explores the many critical points that can cause delay in a complex adoption system and some of the ways in which local authorities and their partners are working to overcome those barriers. It finds that the most significant cause of delay for children needing adoption is the length of time it takes for cases to be completed in court - the average time taken to complete care proceedings in the cases inspectors examined was almost 14 months. The report also finds that, although there were some delays caused by issues such as a lack of suitable adopters or weak planning, these were generally not as significant as those caused earlier by delays in initiating and concluding care proceedings. (2 April 2012)

DfE: Serious Case Review report - 'J' children in Edlington: redacted and anonymised version of Doncaster Local Safeguarding Children Board's overview report on the case of the J children in Edlington, first issued in January 2010.
The Secretary of State has also written to the DH, Home Office, MoJ and local MPs, pressing for the fullest possible report to be published that explains all the details of the case. He states that this redacted SCR overview report does not meet his expectations and is an example of how the current model of SCRs is failing. In the future the DfE wants SCRs to focus on why professionals acted the way they did, and what was getting in the way of them taking the right action at the right time. (29 March 2012)

DfE: Living in children's residential homes: this research report provides an insight into the nature of children’s residential homes, the characteristics and circumstances of the young people who live in them and on the short-term outcomes for these young people. (28 March 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: The Troubled Families programme - Financial framework for the payment-by-results scheme for local authorities: explains the Troubled Families Financial Framework, a results-based funding scheme which provides details of the payment mechanism for local authorities to receive extra funding to deal with troubled families. It sets out: the process and criteria for drawing up the list of families who will be part of the programme; arrangements in regard to upfront payments; and what local authorities need to achieve with each family in order to claim the result-based payment.
DCLG has also announced the 10 local authorities with the largest number of troubled families that have agreed to sign up to the £448m three year programme. Authoriities will only be given a full payment for their work when they have delivered results and reduced the £75,000 costs to the taxpayer that these families cause through demands on services each year. (28 March 2012)

Cabinet Office: Open public services 2012: sets out progress with initiatives under last summer's Open Public Services White Paper. The Cabinet Office states that a "huge amount" has been achieved in the past eight months, e.g. the creation of free schools and expansion of academies, and the radical reform of the welfare system and the introduction of the Payment by Results Work Programme. The paper also focuses on the next stages, emphasising the importance of ensuring the quality of public services continues to improve whilst meeting the Government’s tough targets on financial spending. It also explains how Government is fostering the establishment of ‘Choice Champions' who will promote choice in public services and provide independent scrutiny and challenge to providers and commissioners.  Over the coming months more work will be done to transform service delivery through the ‘digital by default’ approach. The paper also sets out how the Government is implementing the Right to Provide that will empower front line staff across the public sector to take over the services they deliver.  The Government has identified local authorities’ services, fire services, probation and adult social care as some of the areas for developing new mutuals. (29 March 2012)

Audit Commission: Local payment by results: this briefing considers the potential benefits for local authorities of using payment by results (PbR), the risks involved and how to mitigate them. At a time when PbR is high on the political agenda, the briefing sets out to help councils understand what it entails, and whether it is right for their circumstances. As most schemes are at an early stage, the Commission has examined the issues that local commissioners should consider if they are to use PbR successfully, drawing on some national and international examples. (5 April 2012)

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

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DfE: Consultation on school funding reform - Next steps towards a fairer system: sets out  plans to proceed with reform until the end of the current Spending Review period. The paper contains a number of important announcements and invites views on areas where there are different options.  Key points include:
  • introduction of a national funding formula in the next Spending Review period;
  • setting the Minimum Funding Guarantee at minus 1.5% for 2013-14 and 2014-15;
  • local funding arrangements will be simplified and Schools Forums reformed;
  • the EFA will play a strong role in ensuring fairness within the new system;
  • a new methodology for funding high need pupils; and
  • the funding of early years provision will be simplified and made more transparent.

The consultation closes on 21 May 2012. (26 March 2012)

DfE: Statutory framework for the Early Years Foundation Stage 2012: this revised EYFS sets the standards that all early years providers must meet to ensure that children learn and develop well and are kept healthy and safe. It promotes teaching and learning to ensure children’s ‘school readiness’ and gives children the broad range of knowledge and skills that provide the right foundation for good future progress through school and life. This framework is mandatory for all early years providers from 1 September 2012. (27 March 2012)

DfE: Consultation on improving the assurance system for financial management in local authority maintained schools: seeks views on proposals for improving the financial management assurance system for LA maintained schools.  DfE proposes to use the information it already collects, or plans to collect, to identify in which local authorities there may be problems with their, or their schools', financial management. It will then approach those authorities, to understand the issues and seek appropriate additional assurances. The consultation is for a shorter, six week period - it closes on 11 May 2012. (2 April 2012)

DfE: Reform of alternative provision: seeks views on proposals to implement the majority of the recommendations in Charlie Taylor's report on "Improving alternative provision" and to take forward the agenda outlined in the White Paper "The importance of teaching" to raise standards in the alternative provision sector, along with new draft statutory guidance for local authorities, schools or pupil referral units. The consultation closes on 15 May 2012. (3 April 2012)

DfE: Proposed changes to allow schools to more easily employ industry experts to work as Instructors in schools: seeks views on proposed changes to the Education (Specified Work) (England) Regulations 2012, which sets out the conditions to be satisfied by those without qualified teacher status who want to teach in England. The changes will give head teachers greater freedom to appoint industry experts, who are not qualified teachers, to work as instructors teaching and supporting the teaching of appropriate vocational courses. The changes aim to help to drive up the quality of vocational education and enable pupils to meet the standards that industry requires. The consultation closes on 18 May 2012. (26 March 2012)

Schools (Specification and Disposal of Articles) Regulations 2012 (SI 2012/951): these regulations, which come into force on 1 April 2012, specify articles for which head teachers and authorised school staff can search pupils without their consent. They also provide for disposal of these articles. The specified prohibited items are: tobacco and cigarette papers; fireworks; and pornographic images. (27 March2012)

Education (Charges for Early Years Provision) Regulations 2012 (SI 2012/962): these regulations, which come into force on 1 September 2012, set out the circumstances in which the prohibition on charging for education in s.451 of the Education Act 1996 may be lifted for education which is early years provision. (27 March 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

R (Williams) v Surrey CC [2012] EWHC 867 (QB) (Admin Ct): W and others applied for judicial review of the Council's decision to deliver the provision of library services in 10 areas via the community partnership model, under which the libraries would be staffed by trained volunteers. The council prepared an Equality impact Assessment, and conducted a Public Value Review and then consulted on the proposal. W contended that the decision breached the Council's Public Sector Equality Duty under s.149 of the Equality Act 2010 as it had failed to have due regard to the obvious equality issue of the need for training for volunteers other than broad statements about the need to provide ongoing support, training and mentoring.
The court held, granting the application, that the council had breached its s.149 duty as it had not considered the nature and extend of the equality training needs of volunteers which had emerged from the consultations with the various community groups and the way in which it might meet such training needs. It had failed to recognise that, although the consultation had not thrown up any new equality issue, it was not in the same position as it had been when it had made its preliminary decision to consult about the community partnership approach following the Public Value Review. Due regard to the obvious equality issue of volunteers' training required a rigorous consideration by the Cabinet of the officers' thinking as it had developed as a result of the consultations. The reliance on the same bland assertions as made previously that training would be required and monitored fell short of enabling the Cabinet to give due regard to this equality issue at the post-consultation stage. (3 April 2012)
The judgment is available on Lawtel (password required).

DCLG: Progress report by the Ministerial Working Group on tackling inequalities experienced by gypsies and travellers: gypsies and travellers experience some of the worst outcomes of any ethnic or social group, including: below average educational attainment; above average rates of miscarriage, still births and neo-natal deaths; and widespread discrimination and hostility. This report contains 28 measures that will improve outcomes for gypsies, Roma and travellers across education, health, accommodation, employment and in the criminal justice system, including support for authorised sites that have the backing of the local community, through £60m Traveller Pitch Funding and the New Homes Bonus to match monies raised through council tax; and piloting a 'virtual headteacher' who will champion the interests of Gypsy, Roma and Traveller pupils across their local authority and respond to issues of low attainment and attendance. (4 April 2012)

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

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Fire and Rescue Authorities

DCLG: Fire and Rescue Service operational guidance - Operational risk information: guidance on developing and maintaining a consistent approach to managing, processing and using strategic and tactical operational risk information across the fire and rescue service in England. (4 April 2012)

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

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Home Office: Fighting fraud locally - the Local Government Fraud Strategy: this strategy sets out how local authorities can better equip themselves to fight a range of frauds including housing tenancy, council tax, and blue badge parking fraud.  It draws on the best practices of councils already successfully tackling fraud, offers practical anti-fraud advice and is accompanied by a set of supporting online products that councils can use to tackle fraud more aggressively. (2 April 2012)

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

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DCLG: New Mayors Cabinet to provide cities with a voice in Government: annuonces that the Prime Minister intends to establish a Cabinet that will provide City Mayors with a direct route to the Prime Minister and other senior Ministers and be a forum for cities to exchange ideas, highlight new innovations and lobby for the interests of their city. Cabinet meetings will be held at least twice a year and will enable cities to discuss key local issues with decision makers in Whitehall and for Mayors to strengthen relationships with each other. (27 March 2012)

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

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Health and Social Care

Health and Social Care Act 2012: this Act has received Royal Assent. Most of the sections come into force on a day, or days, to be appointed. Its provisions include an increased role for local authorities in the areas of public health, commissioner of services, and Health and Wellbeing Boards. (27 March 2012)

Bevan Brittan has published a number of Alerts on the new Act - see our website.

The Health Secretary has written to local authorities setting out what the Health and Social Care Act 2012 will mean for them and their staff. He explains there are two simple principles at the heart of the Act: that patients should share in every decision about their care and those responsible for patient care should have the "freedom and power to lead an NHS that delivers continually improving care".
Also, the Chief Medical Officer, Professor Dame Sally Davis, has written to the public health community on the public health reforms in the Act which give public health a higher profile role, making the changes that are necessary right across communities, including a new statutory duty shared by the NHS, the Board and the Secretary of State to reduce inequalities in health when they undertake their public health responsibilities in 2013. She states that establishing the new public health arrangements in a short timescale is both a challenge and an opportunity for the public health community. (4 April 2012)

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

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AC v Devon CC [2012] EWHC 796 (QB) (QBD): T claimed damages against the Highway Authority for breach of its duties under s.41 of the Highways Act 1980 to maintain the highway. T lost control of his car when overtaking another vehicle. His offside tyres went into a potholed area at the side of the metalled surface and when steering out of the rut, his car swerved across the road and hit a tree. Two people suffered serious injuries. The DfT's Codes of Practice for Maintenance Management recommended that such highways be inspected monthly; however, the Authority's policy was to inspect at six monthly intervals. TR submitted that the defect in the road where the accident happened constituted a danger to road users. The Highway Authority claimed it had a defence under s.58 of the 1980 Act that it had taken such care as in all the circumstances was reasonably required to secure that the highway was not dangerous for traffic. 
The court held that the Authority was in breach of its duty under s.41 to maintain the relevant section of the highway, it had not made out the statutory defence under s.58 and T was not contributorily negligent. The failure to repair the pothole and the overriding damage on the relevant stretch of the road rendered it dangerous for traffic, and the accident resulted from the Authority's failure to maintain or repair the highway. The statutory test to be applied in deciding whether the Authority had made out a s.58 defence was one of reasonableness not practicability. The burden was on the Authority to establish that they took such care as was reasonably required to secure that the highway where the accident occurred was not dangerous. The Authority had failed to carry out maintenance inspections at the monthly frequency which was appropriate for the category of road and that failure, with the lack of consequential repairs, was causative of the accident. (29 March 2012)

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

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DCLG: Your right to buy your home - a guide: the Government has launched a revitalised Right to Buy scheme that will give tenants a larger discount on the market value of their home, up to a maximum cap of £75,000. In addition, councils will be able to sign an agreement with Government for using the receipts from sales to build new affordable homes in their area. This booklet describes to tenants the Right to Buy scheme as it works today, taking into account the changes which came into effect on 1 April 2012. (3 April 2012)

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

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Licensing Act 2003 (Personal licences) (Amendment) Regulations 2012 (SI 2012/946): these regulations, which come into force on 25 April 2012, amend SI 2005/41. They prescribe revised versions of the application forms for the grant and renewal of a personal licence and the form of declaration of disclosure of convictions. (24 March 2012)

Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) Regulations 2012 (SI 2012/955): these regulations, which come into force on 25 April 2012, amend SI 2005/42 to give effect to certain amendments made to the Licensing Act 2003 by the Police Reform and Social Responsibility Act 2011. The changes remove the category of “interested party” from the 2003 Act to enable any person to participate in various licensing processes, regardless of their physical proximity to the premises concerned. Also, the Secretary of State must by regulations require licensing authorities to advertise certain applications in a prescribed form and in a prescribed manner. These regulations also prescribe new requirements in relation to the applications, notices and representations given or made under Parts 3 and 4 of the 2003 Act. (24 March 2012)

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

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Localism Act 2011

Localism Act 2011 (Commencement No. 2 and Saving Provision) (Wales) Order 2012 (SI 2012/887 (W.118) (C.26)): this Order brings specified sections of the 2011 Act into force in Wales on 1 April 2012. The sections include parts of s.9 & s.10 (powers of fire and rescue authorities), s.46 (petitions to local authorities) and part of s.162 (recovery of possession of secure tenancy after tenant's death). (14 March 2012)

Localism Act 2011 (Commencement No. 5 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012/1008 (C.32)): this Order brings specified sections of the 2011 Act into force on certain days, including:

  • 4 April 2012: s.1(7) and Sch.1 (repeals related to general power of competence) and Sch.14 (grounds for landlords to refuse to surrender and grant tenancies under s.158); 
  • 3 May 2012: s.188 (London housing strategy); s.192 (Mayor’s economic development strategy for London); ss.225 - 229 and Sch.23 (London Environment Strategy and other provisions relating to strategies); s.231 (Transport for London: access to meetings and documents, etc);
  • 4 May 2012:  ss.21 & 22, Schs.2 and 3 (governance);
  • 31May 2012: Part 2 (ss.48 - 57) (EU financial sanctions); and
  • 15 January 2013: s.150(3) (duty to have regard to tenancy strategy).

(3 April 2012)

For full details of when the Act come into force, see our Localism Act 2011 Commencement Table (as at 6 April 2012).

Localism Act 2011 (Consequential Amendments) Order 2012 (SI 2012/961): this Order, which comes into effect on 28 March and 6 April 2012, makes amendments to other pieces of legislation in consequence of provisions of the Localism Act 2011 relating to powers of local authorities, land compensation and neighbourhood planning. (27 March 2012)

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

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London Local Authorities Act 2012: this local Act has received Royal Assent and comes into force on 27 May 2012. It confers a range of further powers upon local authorities in London, including:

  • the issuing of penalty charges for littering and dog-related offences;
  • miscellaneous provisions related to public health, environmental protection and highways;
  • provision for local authorities to serve management orders on owners of houses in multiple occupation that require maintenance;
  • changes to the powers of entry by ‘appropriate officers’ to houses; and  
  • miscellaneous provisions for the licensing of premises.

This Act and the London Local Authorities Acts 1990 to 2007 may be cited together as the London Local Authorities Acts 1990 to 2012. (27 March 2012)

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

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Parish Councils

Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012 (SI 2012/965): this Order, which comes into force on 28 March 2012, 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 under s.1 of the Localism Act 2011. (27 March 2012)

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

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Shared Services

DH: Building recovery in local communities: the DH, the Home Office and the MoJ have sent a joint letter to local authority chief executives, chief constables, prison governors and probation trust chief executives highlighting the new opportunities for joint working to improve outcomes and use resources more efficiently. Newly elected police and crime commissioners will be responsible for cutting crime and improving community safety from 22 November 2012. From April next year, upper tier and unitary local authorities will take on responsibility for commissioning the full range of drug and alcohol prevention, treatment and recovery services. (4 April 2012)

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

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Welsh Government: Consultation on a separate legal jurisdiction for Wales: seeks views on whether or not there should be a separate legal jurisdiction for Wales. it looks at the specific aspects of a potential Welsh jurisdiction and the underlying issues beneath the broader questions of:

  • what is meant by the term “separate legal jurisdiction”;
  • whether there are any essential features for the existence of a separate legal jurisdiction and, if so, what they might be;
  • what the consequences of having a separate Welsh legal jurisdiction might be; and
  • what the potential advantages and disadvantages of a separate Welsh legal jurisdiction would be.

The consultation closes on 19 June 2012. (27 March 2012)

Welsh Language Measure (Registrable Interests) Regulations 2012 (SI 2012/753 (W.103)): these regulations, which come into force on 1 April 2012, specify what officeholders' interests are registrable interests for the purposes of Chapter 1 of Part 8 of the Welsh Language (Wales) Measure 2011.  (7 March 2012)

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

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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.

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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