15/06/2012
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 two 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:
Children's Services
DfE: Consultation on revised safeguarding statutory guidance: seeks views on drafts of three new statutory guidance documents:
- Working together to safeguard children: revised streamlined child protection guidance that sets out the legislative requirements and expectations on individual services in order to provide a clear, common context for single and multi-agency work to safeguard and promote the welfare of children, together with a clear framework for Local Safeguarding Children Boards to use to coordinate this work and to monitor and report on the effectiveness of local arrangements;
- Managing individual cases: the framework for assessment of children in need and their families: sets out a framework for managing cases when there are concerns about a child’s safety, and where an individual is so concerned that they have referred the case to local authority children’s social care. It replaces nationally prescribed timescales for assessments with a more flexible approach focused on the needs of each child; and
- Statutory guidance on learning and improvement: sets out a new approach to learning and improvement by Local Safeguarding Children Boards and their partner organisations. It requires LSCBs to develop a local framework for learning and improvement, and sets out the principles which LSCBs and their partner organisations should follow when conducting Serious Case Reviews, child death reviews and other reviews and audits. It also provides checklists of the actions which are needed in order to ensure that reviews lead to sustained improvements in services.
The consultation closes on 4 September 2012. (12 June 2012)
Ofsted: Ofsted announces major review of access and achievement in education: Ofsted has launched a major new review of access and achievement in education that will focus on the issues facing deprived communities. The aim of the review is to provide radical new solutions to what are long standing and deep seated problems. It will be conducted by an expert panel that will comprise representativesn from schools, local authorities, academia and the third sector. The review panel's report will be published in May 2013. (15 June 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Community Rights
Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012/1463 (C.56)): this Order brings Part 5 Chapter 2 of the 2011 Act (Community right to challenge) into force on 27 June 2012. (6 June 2012)For a complete listing of all the sections on the Localism Act that have been brought into force (as at 15 June 2012), see our Localism Act 2011 Commencement Table.
DCLG: Proposals from town and parish councils under the Sustainable Communities Act 2007 - Second Round invitation: local authorities which find, after consultation and agreement with their local communities, that a bureaucratic barrier prevents them from taking action, can submit a formal proposal under the Sustainable Communities Act 2007 asking Government to remove the barrier. This consultation seeks views on whether the arrangements for submitting barrier busting proposals should be extended to town and parish councils as well as local authorities. The consultation closes on 5 September 2012. (13 June 2012)
DCLG: Sustainable Communities Act consultation on regulations - Summary of responses and Government response: sets out the Government's response to the March 2011 consultation on new regulations to govern the implementation of the Sustainable Communities Act 2007 that enables people to ask, via their local council, that central government removes barriers that hinder them from improving their area. The proposed regulations include a new light-touch duty that ensures previously dismissed proposals can be reconsidered. A third party 'selector' will be able to provide a robust challenge by asking the Secretary of State to review his decision on behalf of a local authority so that he has to fully justify his reasons for rejecting the original proposal. The Government will also need to consult and try and reach an agreement with the 'selector' before a decision is made on whether the proposal should be implemented. The Government will now work with the LGA and other interested bodies to finalise the composition of the selector and the advisory panel, as well as the details that should be included in the memorandum of understanding and the terms of reference. The regulations will be laid shortly and will come into force on 26 June 2012. (13 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Civil Contingencies
DCLG: Bellwin scheme of emergency financial assistance to local authorities - Guidance notes for claims 2012-13: guidance on the terms under which the DCLG will make emergency financial assistance available to local authorities in England. (14 June 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Education
DfE: Regulations for removing the duty on maintained schools to follow the Information and communication technology (ICT) National Curriculum Programmes of Study, Attainment Targets and statutory assessment arrangements: seeks views on draft National Curriculum (Exceptions for First, Second, Third and Fourth Key Stages) (England) Regulations 2012 that disapply the ICT Programmes of Study at all four key stages from September 2012 under s.91 of the Education Act 2002. Schools will still be required to teach ICT at all key stages as part of the National Curriculum but teachers will have the freedom and flexibility to design an ICT curriculum that is best for their pupils. The consultation closes on 11 July 2012. (11 June 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Elections
Local Elections (Declaration of Acceptance of Office) Order 2012 (SI 2012/1465): this Order, which comes into force on 9 July 2012, prescribes the form of the declaration of acceptance of office that a member of a local authority is required to make to hold office. It revokes and replaces SI 2001/3941 (13 June 2012)
Draft Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012: these draft regulations, once in force, amend SI 2007/1024 by prescribing new forms and notices to be used at mayoral elections in England and Wales. (13 June 2012)
Law Commission: Electoral law in the United Kingdom - A scoping consultation paper: the Law Commission's project on electoral law reform consists of three phases: an exercise to determine the scope of the project; developing substantive law reform proposals; and finally, completing a final report and draft Bill. This paper marks the start of the project and considers those areas of electoral law that should be included in the substantive phase of the project. The overall aim of the project is to ensure that the law governing elections is modern, fit for purpose, and meets the expectations rightly demanded of it by citizens. The consultation closes on 17 September 2012. The scoping report will be published by the end of 2012; if the Commission and Government then decide to move to a substantive project, there will be a detailed consultation paper in 2014, followed by a further review, and then a final report and draft Bill in early 2017. (15 June 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Equality and Discrimination
R (Siwak) v Newham LBC [2012] EWHC 1520 (Admin) (Admin
Ct): S, a Roma woman, applied for judicial review of the
council's decision not to renew its contract with Newham Advice
Consortium to provide advice services for Newham residents
with housing, welfare benefits and debt problems, but instead to
develop a new service delivery model for a one to one 'problem
solving package' advice service for residents provided
by council officers. S contended that in reaching this
decision, the council failed to comply with its public sector
equality duty under s.149(1) of the Equality Act 2010.
The court held, refusing the application, that there had
been no formal decision of the council on these matters. It
had decided to cease funding advice services from the voluntary
sector by the end of July 2011but no decision had yet been taken as
to an advice service model and it had made clear that that was to
be a further decision following consultation. Consultation would
have premature at that stage when the service was only
in the process of being formulated, was uncosted and was still
undefined as to the scope of services within it. Although the
public sector equality duty was important, the courts had to ensure
that they did not micro-manage public
authorities' decisions - for the court to interfere at this
stage would be to breach this sensible injunction and would
constitute an unwarranted interference into local democratic
processes. (1 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Fraud
DWP: Fraud guide: this guide is used by DWP staff who investigate allegations of benefit fraud but may also be of interest to local authority officers. The guide has 46 parts and is reviewed twice a year. (31 May 2012)Welsh Government: Social tenancy fraud: seeks views on options for strengthening existing legislation to reduce the prevalence of tenancy fraud in social housing. It proposes new powers to tackle such fraud, including measures to increase the deterrent for tenants to commit fraud and additional powers for landlords to detect and prosecute those who do. The consultation closes on 17 August 2012. (25 May 2012)
If you wish to discuss any of the items noted in this section please contact Adam Finch.
Procurement and State Aid
DBIS: State aid - Frequently asked questions: updated guidance that answers common questions about state aid. (May 2012)
Draft Local Government Best Value (Exclusion of Non-commercial Considerations) Order (Northern Ireland) 2012: Art.19(1) of the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1992 provides that, in exercising any of the functions mentioned in para.(3) of that Article in relation to public supply or works contracts, district councils must exercise these functions without reference to certain non-commercial matters. This draft NI Statutory Rule, once in force, specifies that two of the matters listed in Art.19(4), relating to the terms and conditions of employment of a contractor’s workforce and the conduct of contractors or their workers in industrial disputes, shall cease to be non-commercial matters so far as is necessary or expedient to permit or facilitate compliance with the best value requirements of the Local Government (Best Value) Act (Northern Ireland) 2002, or where there is a transfer of staff to which the TUPE Regulations 2006 or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 may apply. (13 June 2012)
If you wish to discuss any of the items noted in this section please contact Elizabeth Cooper.
Regulatory Services
R (Shanks and Bell (t/a Blue Line Taxis) v Northumberland
CC [2012] EWHC 1539 (Admin) (Admin Ct): C carried on a taxi and
minicab business in North Tyneside. The minicabs operated under a
Private Hire Operator's licence (under the Blue Line Taxis trading
name) granted by North Tyneside Council under s.55 of
the Local Government (Miscellaneous Provisions) Act
1976. The taxis (hackney carriages) were licensed by various
local authorities under s.37 of the Town Police Clauses Act 1847.
Following local government reorganisation in 2009, Northumberland
assumed responsibility for licensing hackney carriage and private
hire under the two Acts and it divided its area into six hackney
carriage licensing zones that so that taxis could only ply for hire
within their zone while minicabs could operate throughout the whole
area. The council amended its licensing policy so that hackney
carriage licensees who might use their taxis for pre-booked private
hire work had to comply with certain conditions. C contended that
these conditions constituted an interference with the
well-established principle that it was lawful for a hackney
carriage to be used for private hire anywhere, which use was an
unlicensed and unregulated activity. It claimed that the council's
decision to attach conditions was ultra vires as it had the effect
of interfering with an otherwise unlicensed and unregulated
activity.
The court held, dismissing the application, that it
was desirable for a hackney carriage licensing authority to be
able to restrict the issue of licences to proprietors and drivers
who were to ply for hire in its area and to refuse to license those
who did not intend materially to ply for hire in its area. There
was nothing in the proposed arrangement that prevented a hackney
carriage to which a licence was issued from engaging in Year 1 in
pre-booked private hire work for out of town private hire
operators; there was no infringement of the absolute right of a
hackney carriage to engage in that kind of work and thus there was
no "restraint of trade" . It was possible that the evidence
generated by the proposed arrangement would lead to the refusal of
a licence at some stage in the future, but that would be an
individually based decision taken the following year.
No principled objection could be made to any such
arrangement. (1 June 2012)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Social Enterprises
Social Investment Business: The Social Enterprise Investment Fund to invest a further £19 million in health and social care social enterprises: announces that the DH is investing a further £19m over the next year in health and social care social enterprises which are delivering exceptional care and driving innovation through their services. All existing social enterprises working in health and social care, including public health and children’s services, and Right to Request and Right to Provide spin-offs, are eligible to apply. The Fund will open for applications this summer for existing social enterprises and interested organisations are invited to register their interest. (13 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Standards
Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 (SI 2012/1464): these regulations, which come into force on 1 July 2012, define the pecuniary interests that members and coopted members of relevant authorities are required to include in the register of interests maintained by an authority. Section 34 of the Localism Act 2011 provides that where a member has a Disclosable Pecuniary Interest, it is a criminal offence to fail to register that interest, to fail to disclose it at a meeting unless it is already registered, or to participate on a relevant item of business, unless the member has a dispensation from the authority, or to take any action on the matter as a member of the Executive, other than to refer the matter to another executive member for determination. (8 June 2012)Localism Act 2011 (Commencement No. 6 and Transitional,
Savings and Transitory Provisions) Order 2012 (SI 2012/1463
(C.56)): this Order brings a number of provisions in the 2011
Act into force on various dates. In particular, it brings into
force the new standards regime in Part 1 Chapter 7 on 1 July
2012 so that every authority must have adopted a Code and
Arrangements for handling member conduct complaints through Council
by that date. It also partially commences certain provisions
from 7 June 2012 so as to enable authorities to do the necessary
preparatory work, and revokes a Standards Committee’s power to
suspend from the same date so that this sanction is now no longer
available . In addition, the Order sets out the transitional
arrangements for the changeover to the new standards regime under
the Localism Act 2011. (6 June2012)
For a complete listing of all the sections on the Localism Act that
have been brought into force (as at 15 June 2012), see our
Localism Act 2011 Commencement Table.
Bevan Brittan LLP has issued an Alert: Completing the Standards regime jigsaw that discusses these changes and gives practical advice on how to prepare for the introduction of the new regime. We have also have produced a model report to Standards Committee (and on to Council), model Arrangements and a model Code of Conduct which are all available free of charge to any local authority. If you would like a copy of these model documents, please email Claire Booth.
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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:
- 26 June (Birmingham): Procurement Update (sorry, fully booked)
- 27 June (Bristol): The Localism Act 2011 - Practicalities, Potential and Pitfalls
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.
