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    Human Rights
   Anti-Social Behaviour    Officers
   Children's Services    Police Authorities
   Community Rights    Powers and Duties
   Education    Public Services
   Equality and Discrimination    Regulatory Services
   Finance    Standards
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

R (KM (by his mother and litigation friend JM)) v Cambridgeshire CC [2012] UKSC 23 (Sup Ct): KM appealed against the Council's decision regarding its assessed direct payment for KM's eligible needs. KM had serious physical and mental disabilities and required significant support in his daily living. The Council assessed his needs and calculated his direct payment at £84,678 p.a., using its Resource Allocation System (RAS) tool. KM complained that the Council had failed to carry out a proper assessment and that the figure appeared arbitrary, so a further report was prepared which estimated that the total cost of supporting KM was £157,060 p.a., including the support KM needed for maintaining and developing increased social, leisure and therapeutic activities. The council agreed with the later assessment of KM's needs but stated that it included unnecessary services, and it decided to award him £84,678 p.a. The Court of Appeal dismissed his appeal, holding that the Council's assessment of KM's needs was adequate. While there had to be a rational link between the needs and the assessed direct payments, there did not need to be a finite absolute mathematical link. KM appealed, contending that the determination be quashed and either that the Council should conduct a re-determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120,000.
The Supreme Court held, dismissing the appeal, that when a local authority was required to consider whether it was "necessary in order to meet the needs of that person for that authority to make arrangements for" the provision of any of the matters on the service list, it had to ask itself three questions:

  1.  What were the needs of the disabled person?
  2. In order to meet the needs identified at (1), was it necessary for the authority to make arrangements for the provision of any of the listed services?
  3. If the answer to (2) was yes, what were the nature and extent of the listed services for the provision of which it was necessary for the authority to make arrangements?

Where a disabled person qualified for a direct payment in lieu of its own provision of services to him, the local authority was then required to proceed to the fourth stage, namely: What was the reasonable cost of securing provision of the services which had been identified at (3) as being those for the provision of which it was necessary for the authority to make arrangements? Here, the Council's methodology and use of the tools was rational. However, there were defects in its reasoning process. Nevertheless, in the light of the amplification of Cambridgeshire's reasoning, it would be a pointless exercise of discretion to order that the decision should be quashed so that KM's entitlement might be considered again and any flaw in the computation was likely to have been in KM's favour. (31 May 2102)

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

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Anti-Social Behaviour

Home Office: Putting victims first - More effective responses to anti-social behaviour: this White Paper sets out the Government's plans for more effective measures to tackle anti-social behaviour. It proposes replacing the current top-down approach with local solutions that focus on the impact on victims and neighbourhoods, including: 

  • a new Community Trigger to compel agencies to respond to persistent anti-social behaviour. This will be trialled in a number of leading local areas, including Manchester, West Lindsey and Brighton & Hove, later this year;
  • faster and more effective powers to stop dangerous and yobbish behaviour;
  • a new court order available on conviction that will stop the behaviour of the most destructive individuals and will address the underlying causes of that behaviour;
  • a new civil injunction to protect victims and communities;
  • simpler powers to close premises that are a magnet for trouble;
  • a more effective police power to stop anti-social behaviour in public places; and
  • speeding up the eviction of anti-social tenants to stop ‘nightmare neighbours’ who ruin the lives of those around them.

(22 May 2012)

DCLG: Strengthening powers of possession for anti-social behaviour - Summary of responses to consultation and next steps: sets out how the Government proposes to proceed with plans to introduce a new mandatory power of possession to enable landlords to take swifter action to evict their most anti-social tenants, in light of responses received to the August 2011 consultation. It announces new powers that will significantly speed up the eviction process and, for the first time, tackle riot related offences even if they are committed away from home. Also, landlords will have a new additional power to take eviction action against tenants if they or any member of their household is convicted for riot-related antisocial behaviour. The legislation will be introduced within a Home Office Bill as soon as parliamentary time allows. (22 May 2012)

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

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Children's Services

Ofsted: The framework for inspecting residential provision in further education colleges: sets out the framework for Ofsted’s inspections of residential provision for young people under 18 in FE colleges. It applies to all general FE colleges, sixth form colleges and independent specialist colleges but not to any colleges registered as care homes. It describes how the principles and processes underlying all Ofsted inspections are applied and the statutory basis for inspection, and summarises the main features of the inspection process. (18 May 2012)

Children Act 2004 Information Database (England) (Revocation) Regulations 2012 (SI 2012/1278): these regulations, which came into force on 15 May 2012, revoke the Children Act 2004 Information Database (England) Regulations 2007 (SI 2007/2182) and relevant amending regulations. The 2007 Regulations provided for the establishment and operation of the ContactPoint database that contained details relating to every child in England. That database was abolished in August 2010 and its data was destroyed so the 2007 Regulations no longer have any effect. (14 May 2012)

DfE: Munro Review of child protection progress report - Moving towards a child-centred system: sets out progress with implementing recommendations in Professor Munro's final report on reforms to the child protection system. Her progress report  finds that a culture change is underway in the child protection system but there is now an urgent need to accelerate reforms to create a more child-centred system. While progress is moving in the right direction, it now needs to move faster with more prescription and bureaucracy stripped away so that social workers are able to focus on giving children and young people the help they need. Professor Munro says that social workers must be confident to use their judgment instead of applying rules that do not match a specific child’s needs. (22 May 2012)

DfE: Safeguarding children - Proposed changes to child performance legislation: seeks views on proposals to update and simplify the licensing regime for under-16s to take part safely in public performances, including television, radio, films or stage. The licensing arrangements sit alongside the Ofcom Broadcasting Code and accompanying guidance which includes specific provisions for the protection of children who take part in all television and radio programmes. The consultation closes on 3 August 2012. (24 May 2102) 

DfE: Increasing parental and community involvement in Sure Start children’s centres: this discussion paper seeks views on how parents and communities can have more of a say in shaping and delivering children's centre services, and becoming much more involved in the activities of their children's centres. It also invites expressions of interest from groups of parents who are interested in developing their own community management models for children's centres, for example cooperatives and social enterprises. The deadline for responses is 19 July 2012. (24 May 2012)

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

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Community Rights

Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012 (SI 2012/1313): these regulations, which come into force on 27 June 2012, specify the requirements for expressions of interest submitted by relevant bodies using the Community Right to Challenge provisions in Part 5, Chapter 2 of the Localism Act 2011. They also specify those services that are excluded from the Community Right to Challenge. (21 May 2012)

DCLG: Community Right to Challenge - statutory guidance: this guidance provides further explanation of the legislative framework for the Community Right to Challenge in Part 5, Chapter 2 of the Localism Act 2011. The guidance is currently in draft - the final version will be published when the Community Right to Challenge provisions come into force. (21 May 2012)

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

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DfE: Reformed funding system - Operational implications guidance for local authorities: assists local authorities and their schools forums in planning the local implementation of the reformed funding system for 2013-14. Local authorities should start putting in place their arrangements for simplifying their formulae over the next few months. (22 May 2012)

DfE: Priority School Building Programme: the SoS has announced the 261 schools that will be rebuilt, or have their condition needs met, through the Priority School Building Programme (PSBP). He also states that DfE is working with HM Treasury to ensure that the PSBP is aligned with the reformed PFI model to provide cost effective and more transparent delivery of services - schools will have greater flexibility with soft FM services, such as cleaning, catering, security and some grounds maintenance, being managed and controlled by schools themselves. (24 May 2012)

Welsh Government: £5m to support Welsh-medium education across Wales: announces that a total of £5.63m has been allocated for Welsh in Education Grants for 2012/13. The grants are awarded annually to local authorities to help them improve and increase the provision of Welsh-medium education. This year an extra £200,000 has been allocated to new projects aimed at improving linguistic progression between primary and secondary schools, and increasing access to Welsh-medium education through late immersion programmes. Local authorities are expected to match fund at least 33% of their allocation. (15 May 2012)

DfE: Preventing and tackling bullying - Advice for headteachers, staff and governing bodies: updated guidance on the Government’s approach to bullying, legal obligations and the powers schools have to tackle bullying. It includes information on the principles that underpin the most effective anti-bullying strategies in schools. (24 May 2102)

DfE: Government response to Supporting Families in the Foundation Years: Consultation on proposed changes to free early education and childcare sufficiency: sets out the Government's proposals regarding the delivery of free early education and securing sufficient childcare, following its November 2011 consultation. The plans include:

  • ten areas will trial  the early rollout of free pre-school education for two-year-olds from September 2012;
  • the hours in which parents can bring in their children for their free place will be extended by two hours, changing from 8am - 6pm to 7am - 7pm; 
  • parents will have the option to spread their free nursery place over two days rather than three.

The DfE has also published revised Statutory guidance for local authorities on the delivery of free early education for three and four year olds and securing sufficient childcare which clarifies that parents do not have to pay to access their child’s free early education place. (30 May 2012)

DfE: The governors' guide to the law: this updated guide sets out the statutory requirements relating to governing body responsibilities, so as to help school governors understand how a school operates, their legal obligations and the way in which these should be delegated. (31 May 2012)

Welsh Government: Review of qualifications for 14 to 19-year-olds in Wales: this consultation forms part of the Welsh Government's Review of Qualifications 14-19, which is looking at how to achieve qualifications that are understood and valued and meet the needs of young people and the Welsh economy. The paper identifies and invites views on the main issues that have emerged so far, and seeks views on some proposals and options for the future.  The consultation closes on 1 September 2012. (31 May 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

Home Office: The Equality Strategy - Building a fairer Britain: Progress report: the Equality Strategy, published in December 2010, sets out a new way of tackling inequality through recognising specific problems and focusing on specific actions to deal with them. This progress report describes how the Government's new approach to equality is beginning to make a difference across the five key priority areas. (22 May 2102)

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

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Local Authorities (Capital Finance and Accounting) (England) (Amendment) (No.3) Regulations 2012 (SI 2012/1324): these regulations, which come into force on 14 June 2012, amend SI 2003/3146 by amending the definition of “affordable housing” and “provision of affordable housing”, and replacing the names of the authorities and Column A (assumed debt for each quarter in a year) set out in the Schedule to the 2003 Regulations with the names of the authorities and Column A set out in the Schedule to these regulations. They also correct errors in SI 2012/711. (22 May 2012)

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

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Welsh Government: Promoting local democracy: this White Paper seeks views on proposals for a Local Democracy (Wales) Bill, together with other proposals designed to make improvements in relation to local democracy. The Bill is intended to redesign the rules within which the Local Government Boundary Commission for Wales operates and make reforms to the structure and functions of the Commission in light of recommendations from the Mathias review of the Commission’s programme of electoral reviews undertaken in 2010. The White Paper also makes proposals aimed at:

  • improving access to information about Town and Community Councils;
  • enhancing the operation of the local government ethical framework to enable a more local approach to the resolution of low-level complaints, without immediate resort to the full investigatory role of the Ombudsman;
  • improving the effectiveness of electoral management in Wales, in terms of its organisation and funding, as well as encouraging high rates of voter registration;
  • strengthening the scrutiny function of local government, to ensure it provides robust public accountability and drives public service improvement both locally and regionally; and
  • ensuring councillors receive improved levels of training and development, both in terms of their local leadership ability and their ability to act as effective community representatives when participating in local democratic processes.

The consultation closes on 3 August 2012. (17 May 2012)

DH: Health and wellbeing boards - your chance to shape secondary legislation: the DH has issued an informal consultation on proposals for the technical regulations that will apply to health and wellbeing boards from April 2013. The Health and Social Care Act 2012 establishes health and wellbeing boards as a local authority committee and specifies that the board is to be treated as if appointed under s.102 of the Local Government Act 1972. It also requires the health and wellbeing board to have various functions. DH is developing one set of technical regulations for health and wellbeing boards that will disapply or modify any legislation relating to a s.102 committee that would otherwise apply to a health and wellbeing board. The intention is to give as much flexibility to local areas as possible and to build on how shadow boards are already running. The closing date for comments is 29 June 2012. (30 May 2012) 

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

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Human Rights

R (Islington LBC) v Persons Unknown (being Persons Entering or Remaining Without Consent of the Claimant on Land Within Finsbury Square, London EC2) (Unreported, QBD): the London Borough claimed for possession and eviction of a number of unnamed persons (P) from a public square that it owned. P had occupied the square for several months, initially as a protest camp; however, more recently it had become more of a camp for the homeless. The occupation resulted in sewage problems, open fires, substantial litter, graffiti and vandalism, and adversely affected many local businesses. The Borough posted formal notices informing P that they were trespassers and directing them to leave the site. 
The court held that the Borough had a right to possession, and P had no right, licence or permission to occupy the square. Balancing P's human rights against their interference with the rights of the local authority and the public, the Borough was entitled to an order for possession and injunctive relief. (1 June 2012)
The judgment is available on Lawtel (password required).

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

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HM Treasury: Review of the tax arrangements of public sector appointees: this review identifies the number of off-payroll engagements worth more than £58,200 p.a. across government, and makes recommendations to improve the tax transparency of these kind of arrangements. The review was commissioned by Chief Secretary to the Treasury Danny Alexander earlier this year. it also announces that new tighter rules governing ‘off payroll’ appointments in central government will be brought in this year. This page includes links to each department's list of payroll appointees who were engaged at an annual cost of more than £58,200, which is the minimum salary for senior civil servants. (23 May 2102) 

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

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Police Authorities

Home Office: Delivering neighbourhood policing in partnership: this research report describes the nature of neighbourhood policing partnerships between neighbourhood policing teams, partner agencies and residents in six local areas that were identified as having a strongly embedded partnership approach. The report sets out the perceived benefits of delivering neighbourhood policing in partnership and offers advice to practitioners on how to work effectively in partnership, and how to overcome key barriers.  The findings may also help Police and Crime Commissioners when thinking about how local policing can best be delivered. (23 May 2012)

Home Office: Police and Crime Commissioners to swear an oath of impartiality: announces that the new PCCs will be required to swear an oath of impartiality when they are elected to office in November. The Government is consulting informally on the wording of the oath before introducing the necessary secondary legislation to set the wording of the oath and make its swearing compulsory. (23 May 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 (Barnsley MBC) v Secretary of State for Communities and Local Government; Hardwick and Rooney (Interested Parties) [2012] EWHC 1366 (Admin) (Admin Ct): the Council applied for judicial review of the SoS's decision to decline to confirm a CPO of land registered as a village green. The Council had made the CPO, purportedly using its powers under s.121 LGA 1972 and s.2 LGA 2000. It stated that the purpose of seeking to acquire the land compulsorily was to enable the Council to secure control of the land in order to safeguard its character and ensure it remained available to the public for recreational purposes. 
The court held, refusing the application, that  the SoS was correct not to confirm the CPO. Section 226(1A) TCPA 1990 permitted the compulsory purchase of land for planning purposes if one or other of the wellbeing objectives were also satisfied, but that was a somewhat different context from the acquisition of land purely for one or more of the wellbeing objectives set out in s.2 of the 2000 Act. If a local authority was truly empowered to acquire land compulsorily for the "economic, social or environmental wellbeing" of the local area, some quite radical and startling acquisitions might be sought to be justified and that was not the likely Parliamentary intention behind passing the Act. The LGA 2000 was passed with a clear appreciation that s.120 and s.121 LGA 1972 remained in force with full effect and that s.2 of the 2000 Act was not intended to alter the situation in which land could not be acquired compulsorily by a local authority simply for the "benefit, improvement or development" of the local area, which could be achieved only by agreement. The SoS was right to say that the CPO would not be justified on the basis of a combined use of s.2 and s.121 - s.121 could not apply because of the prohibition under subs.2(a).  (24 May 2102)

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

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Public Services

Number 10: Business plans: the Departmental Business Plans track the Government's progress in implementing the reforms set out in the 2012-15 Business Plans. These latest business plans provide an overview of implementation progress across the full set of reform actions and give a flavour of what the Government is working on at the moment. This web page contains links to each Department's 2012 Business Plan commitments, and their current status. (31 May 2012)

Welsh Government: Programme for Government - Public services in Wales: the Programme for Government sets out what the Welsh Government is going to do to improve the lives of the people of Wales and how it is going to measure its progress. The first annual report contains a full set of updates on progress made on the commitments set out in the Programme. This chapter is the plan of action for Public Services in Wales, setting out its commitments to make a difference to the people of Wales, and the measures of success. It also links to the 2012 Progress Report. (30 May 2012)

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

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Regulatory Services

Welsh Government: Compulsory microchipping of dogs: seeks views on proposals to introduce legislation under s.12 of the Animal Welfare Act 2006 that would require all dogs in Wales to be microchipped, with the information relating to the microchip and ownership of the animal to be recorded on an approved database. Welsh local authorities would be responsible for enforcing the legislation. The consultation closes on 8 August 2012. (16 May 2012)

Home Office: The Registrar General's guidance for the approval of premises as venues for civil marriages and civil partnerships: 5th edition of guidance for registration authorities that supplements the Marriages and Civil Partnerships (Approved Premises) Regulations 2005. It provides local authorities, registration officers and others with information on the regime to approve premises for the solemnisation of civil marriages and the registration of civil partnerships. It focuses on the detailed processes for the approval of premises and the conditions associated with an approval. (23 May 2012)

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

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Local Government Act 2000 (Commencement No. 9) Order 2012 (SI 2012/1358 (C.51)): this Order brings into force on 22 May 2012 certain paragraphs in Schs.5 & 6 LGA 2000 that amend or repeal provisions in a number of statutes relating to the conduct of members. In particular, it brings into force the repeal of ss.94-98 LGA 1972 regarding restrictions on voting where a member has a pecuniary interest in a contract or other matter that is being considered at a meeting at which he is present. This is now covered by Part 1 Chapter 7 of the Localism Act 2011. (21 May 2012)

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

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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 include:

For a list of all Bevan Brittan seminars see the Events page on our website. To book a place, please register your interest via our website.

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