Distinguishing unwise decision-making from lacking capacity
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Read More04/05/2012
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:
Benefits
DWP / LGA: Preparing for universal credit - Prospectus for 2013 focus local authority led pilots: this prospectus invites local authorities to apply to take part in a pilot scheme to support residents in preparation for the introduction of Universal Credit in 2013. The pilots will focus on delivering the face-to-face support people may need to make claims for Universal Credit, providing help to get online and encouraging financial independence. Local authorities will be expected to work with DWP, Jobcentre Plus and community groups to support residents during the transition to Universal Credit and to act as examples of best practice to other councils. Pilots are expected to start this autumn ahead of the introduction of Universal Credit in October 2013. There is also guidance for applicants. The closing dates for applications is 18 May 2012. (27 April 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Burial and Cremation
DH: Death certification reforms update: the Health and Social Care Act 2012 includes provision for responsibility for the new local Medical Examiner service to sit with local authorities, following the changes to the NHS architecture which will remove PCTs from April 2013. The Health Secretary Andrew Lansley has written to the Death Certification National Steering Group members to advise that, in light of concerns over the funding arrangements for the service, the full implementation of the proposed new local Medical Examiner service has been put back from October 2013 to April 2014. (24 April 2012)If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Children's Services
Ofsted: Memorandum of understanding between Ofsted and the Department for Education - secure children's homes: outlines the ways in which the DfE and Ofsted will cooperate to facilitate the discharge of the Secretary of State’s functions and DfE’s wider responsibilities with regard to secure children’s homes, so that they offer safe, good quality care to children. (24 April 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Community Rights
Draft Community Right to Challenge (Fire and Rescue Authorities and Rejection of Expressions of Interest) (England) Regulations 2012: Chapter 2 of Part 5 of the Localism Act 2011 gives relevant bodies a right to challenge for the opportunity to provide relevant services that are provided by or on behalf of relevant authorities in the exercise of their functions in relation to England, by submitting a written expression of interest. These draft regulations, which are intended to come into force on 27 June 2012, set out the grounds on which such an expression of interest may be rejected by a relevant authority. It also adds certain fire and rescue authorities in England whose services may be the subject of an expression of interest. (3 May 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Education
Ofsted: The framework for school inspection from January 2012: updated guidance on how the general principles and processes of inspection are applied to maintained schools and several other types of school in England. It states the statutory basis for inspection under s.5 of the Education Act 2005 and summarises the main features of school inspections carried out from January 2012. (30 March 2012)
SOLACE: Filling the gap - The championing role of English councils in education: SOLACE Call to Action: this paper discusses the future role of local authorities in education. Addressed primarily to local authority Chief Executives and Senior Managers, it aims to ensure that through strong local government leadership, local authorities remain committed to the pursuit of educational excellence to secure the best outcomes for communities; and also to encourage authorities’ visible and proactive leadership in shaping the policy and implementation landscapes. The paper explores a range of ideas and opportunities for local authorities to fulfil these overarching championing roles but insists that it remains up to individual authorities, in partnership with their schools and communities, to work out this call to action within their local areas. (19 April 2012)
Wiltshire Council (Arrangements for the Provision of Suitable Education) Order 2012 (SI 2012/1107): this Power to Innovate Order, made under s.2 of the Education Act 2002, enables Wiltshire Council to test a new approach to permanent exclusion from school that sees schools, rather than local authorities, placing an excluded pupil in an appropriate alternative setting, funding the placement from a devolved budget and monitoring both attainment and attendance. The trial will also enable schools, working in partnership with each other and the local authority, to try out new ways of tackling challenging behaviour. This Order transfers the local authority's duty in s.19(1) of the Education Act 1996 to provide suitable full-time education to permanently excluded pupils, to the governing bodies of secondary schools and the proprietors of the Academies in Wiltshire for a period of not more than three years. The Order exempts the local authority from that duty and requires the governing bodies and proprietors to exercise that duty in place of the local authority. (23 April 2012)
DfE: Exclusion from maintained schools, Academies and pupil referral units in England - A guide for those with legal responsibilities in relation to exclusion: statutory guidance on the legislation that will govern the exclusion of pupils from maintained schools, Academy schools, Free Schools, Alternative Provision Academies and pupil referral units in England from 1 September 2012. Head teachers, governing bodies, local authorities, Academy Trusts, independent review panel members and panel clerks, and SEN experts must have regard to this guidance when carrying out their functions in relation to exclusions. It replaces the September 2008 guidance "Improving behaviour and attendance: guidance on exclusion for schools and Pupil Referral Units". (27 April 2012)
School Standards and Organisation (Wales) Bill:
this Welsh Government Bill has been laid before the National
Assembly. It sets out a number
of proposals that will sharpen the accountability of schools by
bringing together, updating and tightening standards and
management. Its provisions reform the statutory process for school
organisation so that decisions are taken at the local level
wherever possible. It also: improves grant-funded programmes by
streamlining current processes; changes the way Governing
Bodies hold their Annual Parents Meetings; gives local authorities
and schools greater flexibility over the pricing of school meals;
and makes local authorities accountable for planning
Welsh-medium provision by making Welsh in Education Strategic Plans
statutory. (23 April 2012)
The Bill is currently at Stage 1 (Committee). The Children and
Young People Committee has issued a consultation on the Bill. The closing
date for comments is 22 June 2012.
Further Education Corporations (Publication of Proposals) (England) Regulations 2012 (SI 2012/1157): s.27A of the Further and Higher Education Act 1992, inserted by the Education Act 2011, gives FE corporations the power to dissolve themselves. Before it can do this, an FE corporation must publish and consultat on its proposal for dissolution. These regulations, which come into force on 21 May 2102, set out the time, manner and process for the publication of such proposals and the consultation requirements. They replace SI 2001/782. (30 April 2012)
Dissolution of Further Education Corporations and Sixth Form College Corporations (Prescribed Bodies) Regulations 2012 (SI 2102/1167): the Education Act 2011 inserted new provisions into the Further and Higher Education Act 1992 that give FE corporations and sixth form college corporations the power to dissolve themselves and to transfer their property, rights and liabilities to a prescribed person or body. These regulations, which come into force on 21 May 20112, prescribe the bodies to which such a corporation may transfer its property, rights and liabilities on its dissolution. The list includes "a local authority". (30 April 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Equality and Discrimination
R (Greenwich Community Law Centre) v Greenwich LBC [2012]
EWCA Civ 496 (CA): GCLC provided free legal advice and
assistance on immigration, welfare benefits, housing,
employment and debt issues to people in the Greenwich area. It
was funded by the local authority and other bodies. Following a
recommissioning review of legal advice services in the
borough, the local authority decided to offer grant
arrangements in four service areas on a single agency basis. GCLC
submitted a bid for the immigration and employment grant. The
evaluation panel's report showed that GCLC had a lower score than
P, the other bidder for the grant, and the local
authority decided to award the grant to P. The court dismissed
GCLC's application for judicial review of the local
authority's decision. GCLC appealed on the ground that
the local authority had not complied properly with its public
sector equality duty under s.149 of the Equality Act
2010 .
The Court of Appeal held, dismissing the appeal, that the court had
to ask whether as a matter of substance there had been compliance
with the duty. This was not a tick box exercise but at
the same time the courts had to ensure that they did not
micro-manage the exercise. A characteristic or combination of
characteristics only needed to be taken into consideration if
it was likely to arise in the exercise of the public
function. Here, not only did the local authority have due
regard to the implications of the decision on those groups with the
s.149 protected characteristics, it actually structured its policy
so as to ensure that they were the principal beneficiaries of such
funds as remained available. The logic of the tendering exercise
meant that the performance of the duty was integral to the outcome.
The alteration effected by the re-commissioning exercise was not a
significant change in policy - a change from one provider to
another without more would not usually engage equality
considerations, nor should a change from one provider to four
matter. The simple statement to the councillors that they should
have regard to their equality obligations was not on its
own enough to demonstrate that they had complied with their
duties, but given the later full EIA and the fact that the
modifications thereafter were minor and fully in accordance with
the approved commissioning principles, it was unnecessary to
require more. The purpose of the s.149 duty was to require
consideration of equality implications at the time policy was
drafted, and the fact that it was a continuing duty did not mean
that there had to be further detailed consideration when the
general framework was made concrete, or whenever there were minor
changes of detail. It would make administration intolerable and
grossly inefficient if every aspect of policy left to officers'
discretion had automatically to be returned for further
consideration of the equality implications. (24 April
2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
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GovernanceInstitute for Government: What can elected mayors do for our cities?: this collection of essays brings together the evidence on what mayoral governance could do for our cities. The authors, from a number of leading think tanks and policy institutes, assess the record of elected mayors so far and review the evidence for what they can offer in terms of democratic engagement, economic vitality and leadership in austere times. (29 March 2012)
Centre for Cities: Mayoral manoeuvres - How big is the job facing elected city mayors?: on 3 May 2012, ten of the largest English cities outside London voted on whether to replace the current local government model of leader and cabinet with a directly elected mayor. However, the exact size and scale of the job that new mayors will face has not been widely discussed, nor the fact that these jobs will be different to that of the London Mayor because they will be taking on council leader responsibilities as well as mayoral responsibilities. This briefing looks at the size and the nature of the job that council leaders do now, and that new mayors will take on, as well as reviewing the resources at their disposal. It then considers what powers mayors may need to deliver on a key aspect of their brief, namely supporting the growth of the local economy. (24 April 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Health and Social Care
Welsh Government: £2 million to help older people out of hospital: the Welsh Government has announced the award of £2m funding to the Rapid Response Adaptations Programme, which allows equipment such as ramps, handrails, safety alarms and door entry systems to be fitted in people's homes quickly so that their hospital discharges are not delayed and future admissions can be avoided. The scheme is administered and monitored by Care and Repair Cymru and delivered by Care and Repair agencies. (19 April 2012)CQC publishes 36 reports from its review of services for people with learning disabilities: the Care Quality Commission has published a further 36 reports from a targeted programme of 150 unannounced inspections of hospitals and care homes that care for people with learning disabilities, which looked at whether people experience safe and appropriate care, treatment and support and whether they are protected from abuse. A national report into the findings of the programme will be published later this year. The inspections focused on two outcomes relating to the Government’s essential standards of quality and safety: the care and welfare of people who use services, and safeguarding people who use services from abuse. Inspectors found major concerns at five locations. The full reports are available on CQC's website. (25 April 2012).
LGA: Building successful Healthwatch organisations - 15 case studies: this report assists local authority commissioners and their supporting stakeholders in planning and implementing robust and fit-for-purpose Healthwatch bodies by April 2013, based on informed observations from emerging practice in 15 local Healthwatch case study areas across England. It includes 10 recommendations for successful delivery of Healthwatch comprising critical success factors or top tips for commissioning. (April 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Highways
Lawrence v Kent CC [2012] EWCA Civ 493
(CA): L appealed against the court's dismissal of her
claim against the council for damages for personal injury and
consequential losses following a tripping accident. L had tripped
over a manhole cover that protruded above the pavement.
The court held that the council had not breached its duty to
maintain the highway under s.41 of the Highways Act 1980, as the
protrusion was not such that "a reasonable person would regard it
as presenting a real source of danger". L appealed, contending
that the judge had been wrong to dismiss the evidence of two
witnesses as irrelevant.
The Court of Appeal held, dismissing L's appeal, that the
judge was misled in approaching the matter in the way he did.
His approach was that of an appellate court whereas what was under
consideration was the exercise of a discretion. But even if there
was no misdirection the appellate court was entitled to assess for
itself whether on those facts the trial judge was justified in
making a finding of dangerousness, to an extent which imposed
a duty on the council. The two witnesses' views were not irrelevant
but the trial judge put one witness's evidence a little higher than
she had in fact put the matter herself, and his conclusion about
the other witness's view as to the safety of this manhole cover was
unfair. Even though the witnesses' evidence could
not be put as high as the judge put it, there was no evidence
from which he could have concluded that this manhole was
so dangerous as to impose a duty on the council to have
eliminated it. The trial judge in sympathy for the claimant had
failed to keep in mind the balance between the public
iand the private interest but, whether that was so or not, the
appeal court agreed with the
judge's conclusion. (26 April 2012)
If you wish to discuss any of the items noted in this section please contact Adrian Neale.
Human Rights
Protection of Freedoms Act 2012: this Act has received Royal Assent. The majority of its provisions come into force on a day, or days, to be appointed. It forms part of the Government's porgramme to safeguard civil liberties and reduce the burden of government intrusion into the lives of individuals. Key measures are:
- requires schools and FE colleges to obtain the consent of each parent of a child under 18 years of age attending the school or college, before the school or college can process the child’s biometric information;
- regulates CCTV, Automatic Number Plate Recognition and other surveillance camera technology operated by the police and local authorities. The Secretary of State must publish a code of practice on the development and use of surveillance camera systems and provide for the appointment of a Surveillance Camera Commissioner to monitor the operation of the code;
- amends RIPA 2000 so as to require local authorities to obtain judicial approval for the use of any of the three covert investigatory techniques available to them under the Act;
- makes it a criminal offence to immobilise a vehicle, move a vehicle or restrict the movement of a vehicle without lawful authority. It also extends the power to make regulations for the police and others to remove vehicles that are illegally, dangerously or obstructively parked;
- amends the Vetting and Barring Scheme under the Safeguarding of Vulnerable Groups Act 2006, including repealing the provisions that provide for the monitoring by the Secretary of State of persons engaging in regulated activity;
- establishes a new organisation, the Disclosure and Barring Service, which will replace and combine the functions of the Iindependent Safeguarding Authority and the Criminal Records Bureau; and
- amends the Freedom of Information Act 2000 and the Data Protection Act 1998, including providing for for the re-use of datasets by public authorities.
(1 May 2012)
R (De Almeida) v Kensington & Chelsea RLBC [2012] EWHC
1082 (Admin) (Admin Ct): DA, a Portuguese national who was
resident in the UK, applied for judicial review of the
Council's decision that he was not entitled to accommodation and
support pursuant to s.21 of the National Assistance Act 1948,
despite his terminal illness. DA suffered from AIDS and Hepatitis
C. Once he became too ill to work, he was evicted from his
private rented accommodation because he could no longer afford to
pay the rent and he moved into a hostel. The Council's
assessment concluded that he was not entitled to
accommodation or services under the 1948 Act. DA contended
that the refusal to provide accommodation and support breached
his rights under Arts.3 & 8 ECHR.
The court held, granting the application, that the Council
had failed properly to apply the criteria in s.21(1)(a) of
the 1948 Act and it had misdirected itself in the way it
assessed DA's needs. It was not a pre-requisite of eligibility
under s.21(1)(a) that the person was incapable of performing a
domestic task himself; here, it was sufficient that, because
of his fragile condition, DA reasonably required support with
domestic tasks. The Council's refusal to make arrangements under
s.21 was incompatible with DA's rights under Arts.3 & 8. DA's case
fell within the "exceptional" class becasue he was at the end of
his life and it would be "inhuman treatment" to send him to an
undignified and distressing end in Portugal. The financial
burden of supporting DA was the Council's justification for
the interference with his private life; however, DA had a
limited life expectancy and so the cost to the public
purse would be minimal and did not reasonably justify a
decision which would have such severe consequences. The
Council had failed to discharge the burden of proving that its
decision was "necessary in a democratic society", i.e.
justified by a pressing social need, and proportionate to its
legitimate aim, and the consequence of its decision would be a
breach of Article 8. (27 April 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Members
LGA: Councillor's guide 2012/13: updated edition of the guide that provides an introduction to the world of local government. It covers the main things new councillors need to know and discusses some of the key challenges facing local government today. It includes changes being introduced under the Localism Act 2011. (23 April 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Regulatory Services
LGA: ‘Chuggers' are driving shoppers away from high streets, councils say: an LGA survey of local authorities reveals that street fundraisers who hassle people into giving their bank details are deterring shoppers from visiting town centres. Councils are calling for updated powers to clamp down on charity muggers, such as being able to place restrictions on when and where corporate street fundraisers can collect, and how many can gather in one street. (21 April 2012)
DEFRA: Tackling irresponsible dog ownership: seeks views on four proposals for changes to the law on dangerous dogs, in order to provide the public with more adequate protection from dangerous dogs and to encourage more responsible dog ownership. The proposals are:
- compulsory microchipping of dogs;
- extending the criminal offence of allowing a dog to be dangerously out of control to private property (where the dog has a right to be);
- removing the need for the police to seize and kennel dogs seized as a suspected dangerous dog or prohibited type until the outcome of court proceeding; and
- increasing the fee for placing a prohibited type dog on the Index of Exempted Dogs.
The consultation closes on 15 June 2012. (23 April 2012)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Standards
R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172
(Admin) (Admin Ct): this case concerned the restrictions
on the conduct of local authority members and thus to their
right to freedom of expression under the LGA 2000's Standards
regime. C was a councillor on both M Community Council
(MCC) and P County Council (PCC). C had an online blog in
which he made a number of comments criticising the conduct and
operation of both MCC and individual councillors. PCC's Standards
Committee decided that a number of these comments failed to treat
others with respect and brought the authority into disrepute, and
so were in breach of the Code of Conduct; it censured him and
required him to attend a training session with the Monitoring
Officer. The Adjudication Panel dismissed C's appeal. P
appealed, contending that the Standards Committee's decision to
censure him was a disproportionate interference with his right to
freedom of expression under Art.10 ECHR.
The court held, allowing the appeal, that the Committee and
the Panel were entitled to conclude that C's comments breached the
Code. However, the effect of ss.3 and 6 HRA 2008 was
that it was in practice difficult entirely to exclude consideration
of factors relevant to common law freedom of expression and Art.10
from the question of whether there was a breach of the Code of
Conduct. Once Art.10 was under consideration, so was the general
approach of the court to questions of weight and latitude in
determining whether a decision or conduct was compatible with a
Convention right. The court, in considering whether the Panel
had failed to accord sufficient weight to C's rights to
freedom of expression, had to decide for itself whether those
rights were accorded sufficient weight. Despite the
unattractiveness of much of what was posted, most of it was not
purely personal abuse and did not involve a breach of obligation;
nor did it come close in kind or degree of condemnation to the
language which had been held to be "unparliamentary" by the Speaker
of the House of Commons. When deciding what constituted the
"respect and consideration" required by the Code, it was necessary
to bear in mind the traditions of robust debate, which might
include some degree of lampooning of those who place themselves in
public office. In light of the strength of the right to
freedom of expression and the fact that the majority of the
comments posted were directed at other members of MCC, the Panel's
decision that they broke the Code was a disproportionate
interference with C's rights under Art.10. (3 May 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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