Practical and Legal Guidance for Assessing Capacity
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Read More29/06/2012
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:
Adult Social Care
DWP: The Disabled People’s Right to Control (Pilot Scheme) (England) (Amendment) Regulations 2012 - Public consultation: the Welfare Reform Act 2009 and the Disabled People’s Right to Control (Pilot Scheme) (England) Regulations 2010 put in place a right for disabled people to request choice and control over certain public funding they receive to go about their daily lives and to test the best ways of delivering that right in a number of local authority areas in England. This Right to Control is currently being tested in seven Trailblazer areas spanning 13 local authorities in England for a two-year period which comes to an end in December 2012. This paper seeks views on proposals to extend the operation of the current Right to Control pilot scheme by a further 12 months. The consultation closes on 19 September 2012. (28 June 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Children's Services
LGA: Corporate parenting: to mark the first ever Corporate Parenting Week, the LGA has launched an online resource pack about the role of a corporate parent and to share ideas and good practice across the country. (25 June 2012)If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Community Rights
DCLG: Community Right to Challenge - Statutory guidance: the Community Right to Challenge allows voluntary and community groups, parish councils and local authority staff, from 27 June 2012, to express an interest in taking over the running of local authority services. Relevant authorities must consider expressions of interest and, where they accept it, carry out a procurement exercise for the service. This statutory guidance gives further information on how the legislative framework under Part 5 Chapter 2 of the Localism Act 2011 is expected to operate. (27 June 2012)Community Right to Challenge (Fire and Rescue Authorities and Rejection of Expressions of Interest) (England) Regulations 2012 (SI 2012/1647): these regulations, which come into force on 27 June 2012, set out the grounds on which an expression of interest made under the Community Right to Challenge may be rejected by a relevant authority. They also add certain fire and rescue authorities in England whose services may be the subject of an expression of interest. (26 June 2012)
Draft Assets of Community Value Regulations 2012: these draft regulations, once in force, set out the details of the Assets of Community Value scheme under Chapter 3 of Part 5 of the Localism Act 2011. They cover: the procedure for listing land as being of community value; reviews of decisions to list land and appeals; community interest groups; compensation; and restrictions on the land register. They also set out what land is not of community value and relevant disposals to which the Act does not apply. (29 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Data Protection
Home Office: Draft Communications Data Bill: "communications data" is information generated about a communication, and includes the time and duration of a communication, the number or email address of the originator and recipient and sometimes the location of the device from which the communication was made. It is distinct from communications content. This draft Bill sets out the Government's proposals for an updated framework for ensuring the availability of communications data and its obtaining by public authorities, that will require Communications Service Providers, when requested to do so, to retain and store communications records which they may not retain at present for their own business reasons. Four bodies will be allowed to apply for access to data under the new rules: the police, SOCA/NCA, the intelligence agencies and HMRC. The proposed new regime will replace Part 1 Chapter 2 RIPA 2000 and Part 11 ACTSA 2001 and sit alongside the Data Retention (EC Directive) Regulations 2009 (SI 2009/859). The Bill will now be scrutinised by a joint committee of both Houses; the Intelligence and Security Committee will also conduct its own independent inquiry. (14 June 2012)If you wish to discuss any of the items noted in this section please contact Martin Carroll.
Delivery of Services
Cabinet Office: Public service mutuals - the next steps: this report from the Mutuals Taskforce examines the barriers facing public servants who form mutual businesses and take control of their services. It recommends a number of actions to make this burgeoning movement a mainstream option for public service delivery, including:- public service mutuals should be allowed temporary exemptions from EU competition rules to enable them to be established before being subject to full and open competition, and to encourage more public sector workers to set up their own spin-off groups;
- implementing Rights to Provide, with clear pathways and appeals processes;
- training and guidance for public service commissioners; and
- analysis of investment opportunities in mutuals by Big Society Capital.
The Cabinet Office has also published a Pipeline of Public Sector Mutuals which shows that the number of public service mutuals has risen to 58, from nine in 2010. (22 June 2012)
Cabinet Office: Independent review into the barriers of public service choice: the Government has appointed David Boyle to lead an independent choice review that will look into what people currently do with the choices that they have, whether barriers exist that are currently preventing individuals from exercising choice and the factors necessary to ensure choice is available to everyone. The review will focus on identifying the practical barriers to people exercising choice in specific areas where choice is already available to users, including: community services; adult social care; schools; Further Education; and early years. It will assess how the current system operates against these principles and make practical recommendations which take account of value for money and the limitations of capacity and public resources. The final report will be published in early 2013. (22 June 2012)
Welsh Government: Jane Hutt announces £12.7m Investment to improve services: announces the latest allocations of Invest-to-Save funding that provides support to public service organisations to help them introduce new and/or proven ways of working that deliver improvements to public services and make the best use of resources. (19 June 2012)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Education
Ofsted: No place for bullying: this report looks at what schools can do to create a positive school culture and to prevent and tackle bullying. it results from a survey that evaluated the effectiveness of the actions that schools take to create a positive school culture and to prevent and tackle bullying, focusing on pupils’ own experiences and understanding of bullying and its effects. (19 June 2012)Ofsted: Common inspection framework for further education and skills: this guide for inspectors has been updated to include the revised framework that is coming in in September 2012. (19 June2012)
Ofsted: The framework for school inspection from
September 2012: this framework sets out the statutory basis for
inspections conducted under
s.5 of the Education Act 2005 from September 2012. It
summarises the main features of school inspections and describes
how the general principles and processes of inspection are applied
to maintained schools, academies and some other types of school in
England.
See also A good education for all - key changes for
schools that sets out the main features of Ofsted
inspections from September 2012 under the revised school
inspection framework and grade descriptors. It includes
a note of the key changes. (20 June 2012)
Information as to Provision of Education (England) (Amendment) Regulations 2012 (SI 20112/1554): these regulations, which come into force on 16 July 2012, amend SI 2008/4 that prescribes the information that local authorities are required each year to provide to the Secretary of State regarding the provision of primary and secondary education in their area. The amendments include a change to the date by which information must be provided to the Secretary of State and an extension of the requirement to provide certain information to pupil planning areas where local authorities divide their area for the purposes of assessing current and future pupil demand and school capacity. They also require local authorities to provide forecasts of the total capacity of primary and secondary schools in each of their pupil planning areas, and to provide the admission numbers in schools for each age group and the total such numbers within each pupil planning area. (22 June 2012)
Welsh Government: Forward in partnership for children and young people with additional needs - Proposals for reform of the legislative framework for special educational needs: seeks views on proposals to replace the statutory framework for the assessment and planning of provision for children and young people with SEN with a simpler, more person-centred and integrated system for children and young people with additional needs, using a multi-agency approach. Central to the proposals is the Individual Development Plan which is proposed to replace the existing SEN statement. The consultation closes on 19 October 2012. (26 June 2012)
DfE: Pupil behaviour in schools in England: this research report examines what is known about the nature and standard of behaviour in English schools, the impact of poor behaviour on pupils and teachers, and what schools and teachers can do to promote good pupil behaviour. It finds that the majority of pupils are well-behaved and want others to behave well too; however, there are some concerns that negative behaviour is driving some teachers out of the profession. (26 June 2012)
DfE: Action research into the evolving role of the local authority in education - The final report for the Ministerial Advisory Group: this research report explores how local authorities are evolving and adapting their role to meet the needs of a more autonomous education system. It focuses on LEAs' three core responsibilities: ensuring a sufficient supply of school place; tackling underperformance in schools whilst ensuring high standards; and supporting vulnerable children. (26 June 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Equality and Discrimination
Home Office: Equality Act 2010 - Banning age discrimination in services, public functions and associations: Government response to the consultation on exceptions: the Equality Act 2010 bans age discrimination against those aged 18 and over in the provision of services and the exercise of public functions, and by private clubs and other associations. This response announces that, following consultation, the Government has decided to implement the ban on age discrimination and related exceptions on 1 October 2012. The Government has laid a draft Equality Act 2010 (Age Exceptions) Order 2012 before Parliament that sets out the circumstances in which it will remain lawful to use age as a reason for treating people differently. (19 June 2012)If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Finance
LGA: Funding outlook for councils from 2010/11 to 2019/20 - Preliminary modelling: this report sets out to identify the level of service provision that councils could be expected to be able to sustain if their revenue base were to be constrained within the spending levels first set out by the Chancellor in the Autumn Statement in November 2011 and subsequently confirmed in the Budget on 21 March 2012. The financial projection reveals that unless reform is introduced immediately, the money available by 2020 to fund council services like road maintenance, libraries and leisure centres will have shrunk by 90 per cent in cash terms, because the rapidly rising cost of providing adult social care, combined with the growing cost of delivering councils' other explicit statutory responsibilities like social services, waste collection and concessionary travel, will soak up almost all of council spending. The LGA warns that in order to manage a £16.5bn shortfall, councils may have to significantly reduce, and possibly cut, entire service areas. It is calling on the Government to ensure local authorities are not placed in that position by introducing long overdue reform of how adult social care is paid for and giving councils access to the resources needed to deliver the services demanded of them by local residents. It is also suggested that a fundamental change may be required in the statutory demands placed on councils, as well as a shift in residents' expectations of what services a council will provide. (26 June 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Health and Social Care
DH: Personal Health Budgets - Experiences and outcomes for budget holders at nine months: Fifth interim report: this report assesses the effectiveness of the personal health budget pilot programme. It is based on interviews with 52 budget holders and 13 carers in the pilot which suggest that there is widespread potential for personal health budgets to lead to improvements in health and well-being; however, these benefits risked being reduced by delays and other problems in implementing personal health budgets. The report highlights the importance of information, advice and support, and identifies some challenges. (19 June 2012)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. (12 June 2012)
DH: Department of Health review - Winterbourne View Hospital: Interim report: this report sets out initial findings from the review of events at Winterbourne View private hospital and a wider investigation into how the health and care system supports vulnerable people with learning disabilities and autism. It is based on evidence from the CQC's focused inspection of 150 hospitals and care homes for people with learning disabilities and other evidence submitted to the review. It includes 14 national actions to improve the care and support of very vulnerable people with learning disabilities or autism, including:
- a Concordat will be made in the autumn by key partner organisations, including the ADSS, the LGA, the Royal Colleges and the NHS Commissioning Board, that contains a national public commitment to deliver the right care for people with learning disabilities or autism and challenging behaviour;
- the DH will work with the NHS Commissioning Board Authority to agree by January 2013 how best to embed Quality of Health Principles in the system, using NHS contracting and guidance; and
- encouraging the CQC to carry out unannounced inspections at any time and to look at how their registration requirements could be changed to improve the quality of services.
The final report will be published when criminal proceedings
have concluded and the DH will publish a follow up report
one year later to make sure that progress has been made.
See also the CQC’s report Learning Disability Services Inspection Programme:
national overview that gives details of its
inspections. It concludes that while no abuse on the scale of
Winterbourne View was found, half of the hospitals inspected failed
to meet CQC standards of care. (25 June 2012)
LGA: Get in on the Act - The Health and Social Care Act 2012: this guide gives a summary of the 2012 Act and sets out the implications for local government. It draws together aspects of the legislation that relate to the major changes for local government; and gives further details, where they are known, of how the legislation will be developed through regulation, guidance and policy. It also considers important aspects of the ongoing health reforms which do not appear on the face of the legislation but which are relevant to it and to the work of local government. (26 June 2012)
Compact Voice: Informing and influencing the new local health landscape - A guide for local Compacts: this guidance for voluntary and community bodies provides a detailed overview of the new health landscape, with information about the key elements of local health reform, and explains how the new and emerging health landscape will affect local Compact partnerships. It outlines how local Compacts can influence the development of local health partnerships and structures, and discusses who local Compact partnerships should be communicating with and how. It also contains a one page guide with key tips on how the voluntary and community sector can use local Compacts to inform and influence the new health landscape. (26 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Housing
DCLG: Allocation of accommodation - Guidance for local housing authorities in England: statutory guidance on social housing allocations for local authorities in England issued under s.169 of the Housing Act 1996. It advises on how to take advantage of the provisions in the Localism Act 2011 which give back to local authorities the freedom to manage their own waiting lists, and make it easier for them to move existing social tenants to more suitable accommodation. It also encourages authorities to make use of the existing flexibilities within the allocation legislation to ensure that social homes go to people who need and deserve them the most, such as hard working families and members of the Armed Forces. (29 June 2012)
If you wish to discuss any of the items noted in this section please contact David Isaacson.
Officers
Local Authorities (Exemption from Political Restrictions) (Designation) Regulations 2012 (SI 2012/1644): these regulations, which come into force on 26 July 2012, specify for those authorities that do not have a Head of Paid Service (such as Transport for London, a fire and rescue authority or a joint waste authority) the person who has responsibility for considering applications from local authority employees under s.3A of the Local Government and Housing Act 1989 for exemption from political restriction in respect of their posts and also, where appropriate, to issue directions requiring the authority to include a post in the list of politically restricted posts it maintains. (28 June 2012)If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Procurement and Contracts
R (Dudley MBC) v Secretary of State for Communities and
Local Government [2012] EWHC 1729 (Admin) (Admin Ct): the
Council applied for judicial review of the SoS's decision to
change the way in which he would make payments under a
PFI scheme in respect of a project for ICT in schools
in Dudley. From 1999 until 2011 the Council’s grant was
paid on the "declining balance" basis, by which the capital
cost associated with a project, which were paid by a local
authority during the term of a contract with the third
party, were defrayed not by annual payments during the term of
the contract, but over a much longer timeframe. The SoS announced
that payment would be changed to an "annuity" basis, under
which the Government would make payment for the authority’s
supported capital payments over the life of the contract. The
Council argued that the project had been extended by two years
in 2009 and the council had undergone an extensive procurement
process for a new contract, and the changes would leave it
with a shortfall in funding for the contract of £11.1m; however,
the SoS confirmed his decision to end PFI grant payments on a
"declining balance" basis. The Council claimed that the
decision was procedurally unfair as the Council had a
legitimate expectation that there would be consultation, and also
that it had an expectation that its grant would continue to be paid
on the declining balance basis and that fairness required that,
before it was withdrawn, it would be consulted on this issue.
The court held, granting the application, if a decision-maker
intended to take a decision which affected a person's rights, the
duty to act fairly would usually be required by public law, which
would imply such a duty into a statutory scheme even when none was
expressly laid down. Here, the SoS did owe a duty to act fairly,
and in particular to consult the Council, before he made the
decision, so to make the decision abruptly without
consultation would be so unfair as to amount to an abuse of power.
It was clear from the evidence that the SoS had not consulted
the Council at a formative stage of the decision-making
process. Although his letter did offer to consider any
representations that the Council might wish to make, when read
fairly and as a whole, the letter was inviting representations as
to how the impact of the decision might be mitigated, but not about
the principle of the decision itself. (25 June 2012)
If you wish to discuss any of the items noted in this section please contact Elizabeth Cooper.
Public Health
DH: Healthy lives, healthy people: Update on public health funding: sets out current thinking on local authority public health finance, and in particular:
- the next steps on moving from the estimates of baseline spending published in February 2012 to actual allocations for 2013-14 which are expected to be published by the end of 2012;
- further information on the high level design of the health premium which will be targeted towards areas with the worst health outcomes and most need;
- conditions on the ring fenced public health grant which state how the grant may be used, including proposals for local authority financial reporting requirements on public health spend.
It also gives the Advisory Committee on Resource Allocation's (ACRA's) interim recommendations on the public health formula. The DH welcomes feedback on the approach used and the proposed formula which will inform ACRA's continuing work to finalise their recommendations for 2013-14 public health allocations. (14 June 2012)
DH: Guidance to support the transfer of public
health functions from PCTs to local authorities: this
guidance, produced jointly with the LGA, supports the
transition of public health functions prior to the formal transfer
on 1 April 2013. It advises on achieving effective transition
working arrangements with minimal risk, as well as reminding the
parties of the good HR practice that applies to such arrangements.
It includes: key principles; a checklist of key stages; a checklist
of what such a transition working agreement might include; and a
sample agreement. (25 June 2012)
The LGA has developed an online resource From transition to transformation in public
health to assist the transfer of public health to local
authorities. The web page includes links to guidance on managing
the transition, case studies and national policy documents.
DH: 2012 Local Health Profiles: these profiles give a snapshot of health in each English local authority area. They can be used to help local government and health services understand their community’s needs, so that they can work to improve people’s health and reduce health inequalities. (26 June 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Standards
Committee on Standards in Public Life: New
standards regime for local authorities is not ready and risks
public confidence: reports that the CSPL has written to the Communities Secretary Eric
Pickles, expressing its concern that a large number of local
authorities remain unprepared for the new Standards regime which
took effect on 1 July. In particular, the Committee comments on the
short timeframe allowed for implementation and risks raised by the
lack of adequate scrutiny of the new arrangements. (28 June
2012)
DCLG has issued a press notice New rules to ensure greater town hall transparency in
which Local Government Minister Bob Neill announces the coming into
force of the new rules on 1 July.
See also Bevan Brittan's article on the regulations and the
transitional arrangements: Completing the Standards regime jigsaw.
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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