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:  

   Access to Information    Judicial Review
   Anti Social Behaviour    Localism Act 2011
   Audit    Maladministration
   Children's Services    Negligence
   Civil Contingencies    Officers
   Economic Development    Overview and Scrutiny
   Education    Police
   Finance    Procurement
   Fire and Rescue Authorities    Registration Services
   Governance    Regulatory Services
   Health and Social Care    Standards
   Housing
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme 

 

Access to Information

Cabinet Office: Open Data White Paper – Unleashing the potential: sets out how the Government will ensure that everybody can benefit from open data by making data held by the public sector more accessible and usable, so that it is easier to access public data, easier for data publishers to release data in standardised, open formats, and engraining a ‘presumption to publish’ unless specific reasons (such as privacy or national security) can be clearly articulated. The measures include: 
  • the Public Data Principles, which set out that public data policy will be driven by the public and businesses who want and use the data, will be officially adopted as government policy; 
  • open data released by government will be marked against inventor of the World Wide Web Tim Berners-Lee’s 5 Star Scheme for data quality and reusability; and 
  • a complete overhaul of the data.gov.uk site to include better search facilities, simpler ways to access information, an advanced GIS data search (including map previewing) and better tools for developers, such as API access to the catalogue holdings.

It also sets out the Government’s commitment to rigorously protect the public’s right to privacy and safeguard people’s data. (28 June 2012)

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

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Anti Social Behaviour

Home Office: Dealing with the problems of late night drinking - Response to consultation: this consultation invited views on two measures in the Police Reform and Social Responsibility Act 2011 that will be implemented through regulations: early morning alcohol restriction orders (EMROs) and the late night levy. It announces that from October 2012 local authorities will be able to use EMROs to restrict the sale of alcohol in all or part of their areas between midnight and 6 a.m., and to charge a levy for late-night licences to contribute to the cost of extra policing and other costs linked to late-night drinking such as street cleaning. There will be statutory guidance on these new powers. (4 July 2012) 

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

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Audit

DCLG: Draft Local Audit Bill:  in 2011, the Government announced its plans to disband the Audit Commission and put in place a new audit regime, where local public bodies will be able to appoint their own auditors, and in March 2011 it consulted on proposals for a new local public audit framework. It now seeks views on a draft Bill that sets out the proposed new audit framework for local public bodies, the process for the appointment of auditors, and the regulatory framework for local public audit. The paper also sets out proposals for a proportionate regime for the audit of smaller local public bodies (turnover of less than £6.5m).The consultation closes on 31 August 2012. (6 July 2012)

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

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Children's Services

DfE: Tackling child sexual exploitation action plan - progress report: the national Action Plan for Tackling Child Sexual Exploitation, published on 23 November 2011, brought together actions by the Government and a range of national and local partners to protect children from this largely hidden form of child abuse. It highlighted areas where more needed to be done, and set out specific action that the Government, local agencies, and voluntary and community sector partners needed to take, to address this abuse. This report shows encouraging progress being made in implementing the Action Plan. It also highlights some important work being taken forward over and above the Action Plan's commitments.
There is also a new Step-by-Step Guide on what frontline practitioners should do if they suspect a child is being sexually exploited.
DfE has also announced urgent reforms to protect children in residential care from sexual exploitation, outlining the proposed new measures such as: more robust checks before children are placed in homes outside their home boroughs; overhauling the quality and transparency of data so there is a clear picture of children who go missing from care; and reviewing all aspects of the quality and effectiveness of children’s homes. (3 July 2012)

DfE: Proposals for earlier placement of children with their potential adopters: sets out proposals for the earlier placement of children in need of adoption, including a new legal duty on local authorities to consider placing a child with carers who are likely to become their permanent carers, where it is clear that a child is unlikely to return home. The Government also plans to clarify the lawful use of concurrent planning and fostering for adoption, and to require local authorities to consider both, where appropriate. It will fund Coram to broaden their reach as a national centre of excellence in adoption and early permanence, in support of local authorities. (6 July 2012)

Ofsted: Registration of healthcare at children's homes: agreed joint guidance from CQC & Ofsted on the registration of children’s settings under the Care Standards Act 2000 and the Health and Social Care Act 2008, including children’s homes that provide health activities. It clarifies what children’s settings will need to register and how Ofsted and CQC will manage this registration process. (10 July 2012)

DfE: Letter about freeing orders and placement orders: Tim Loughton, Parliamentary Under Secretary of State for Children and Families, has written to all children's services authorities following the Family Division's judgment in A & S (Children) v Lancashire CC [2012] EWHC 1689 (Fam). That case concerned two children whom the judge described as 'statutory orphans': their  legal status was 'freed for adoption' (i.e. subject to a freeing order under the Adoption Act 1976) but who were not adopted. Although the plan for the children was no longer adoption but long term fostering, no robust and appropriate care plans were in place. The court found that the Council had breached the children's human rights as it had, inter alia:

  • failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life;
  • deprived them of the protection under the Children Act 1989 and and the procedural protection of a guardian;
  • failed adequately to protect their physical and sexual safety and their psychological health;
  • permitted them to be subjected to degrading treatment and physical assault and failed adequately to protect their safety and their psychological health;
  • failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews; and
  • failed to act as the 'responsible body' to enable the children to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of their human rights.

The court held that the children had suffered irreparable harm and ordered that their claims against the Council for damages for breach of statutory duty and negligence be transferred to the QBD. 
The judgment also raises questions about the number of children subject to placement orders but for whom adoption is no longer the plan and about the role of Independent Reviewing Officers (IROs). The judge drew specific attention to the failings of the IRO who did not monitor the children’s care plans and whether their legal status remained appropriate. The Minister advises local authorities to review all children’s cases whose legal status is 'freed for adoption' or who are subject to a placement order but whose plan has changed away from adoption. (11 July 2012)

DfE: Reform of the Office of Children's Commissioner - draft legislation: this paper follows on from John Dunford’s independent review of the role of the Children’s Commissioner. It sets out legislative changes to strengthen the Children’s Commissioner's powers so that they can take an active role in assessing the impact of new policies and legislation on children, are more independent from Government and more accountable to Parliament. The paper includes explanatory notes and a Keeling Schedule showing changes made to the Children Act 2004 by the proposed provisions. The changes will be brought in as part of the Children and Families Bill that is expected to be introduced early in 2013. (11 July 2012)

Ofsted: Arrangements for the inspection of services for children looked after and care leavers: seeks views on new inspection arrangements, which will come into effect from April 2013. The changes will enable Ofsted to work together with health, police, probation and other inspectorate services  from 2013 to carry out no-notice inspections of multi-agency arrangements for the protection of children. The consultation closes on 18 September 2012. (11 July 2012)

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

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Civil Contingencies

DCLG: Councils to get 100 per cent help to clear up after floods: announces that the Government announced that will reimburse councils under the Bellwin scheme for 100% of their clearing-up expenditure resulting from the record breaking rainfall over recent weeks, instead of the standard 85% as stated in the Bellwin scheme guidance. Councils, police, fire and National Park authorities are eligible for Bellwin reimbursement when they have spent more than 0.2% of their calculated annual revenue budget on works that have been reported to DCLG as eligible for grant. (10 July 2012)

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

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Economic Development

LGA: Local leadership, local growth: in 2011 the LGA launched a local growth campaign against a background of slow recovery from recession, a new institutional landscape for economic development, reduced public budgets for economic regeneration and policies to devolve economic powers. The campaign aimed to: re-examine the economic development role of councils and partners after two years of recession; establish the barriers to local growth that remain as localism and devolution became a reality; and compare local leadership in England with other developed nations. This report sets out the campaign’s conclusions and proposes new work and lobbying for the LGA, councils and partners to support national economic recovery. It highlights how councils have a long and proud history of promoting growth and that councils are continuing to reinvent their role in local economic development and are grasping new funding mechanisms to met the economic challenge. (28 June 2012)

Cabinet Office: Unlocking growth in cities – City Deals Wave 1: the Deputy Prime Minister and DCLG have announced that they have concluded deals with the eight Core Cities (Greater Birmingham and Solihull, Bristol and the West of England, Greater Manchester, Leeds City Region, Liverpool City Region, Nottingham, Newcastle and Sheffield City Region) that will help them invest in growth, improve local workers' skills and create jobs, support local businesses, control budgets and improve critical infrastructure. This paper summarises the deals that give various new freedoms, powers and tools to help the cities go for growth, including: 

  • a new “earn back” payment by result model that incentivises a city to invest in growth in return for a share of the national tax take; 
  • the freedom to deliver critical infrastructure through tax increment financing (TIF), with the ability to borrow against future business rate income in key development zones; 
  • power to pool multiple funding streams and business rate income into a single investment fund, leverage private sector capital and invest in local priorities; 
  • increased city control over rail services by devolving greater responsibility for commissioning and managing franchise arrangements for local and regional rail services; 
  • devolution of local transport major funding, matching local resources with devolved transport budgets so cities have the power and resources to make strategic transport investments; 
  • localised asset management: joint investment programmes that bring together local and national assets in an economic area to unlock resources for housing development and regeneration; and 
  • local programmes that will help cities make critical investment in green infrastructure and technology; generate low carbon jobs; and accelerate reductions in emissions (including Green Deal in Birmingham).

Full details of each City Deal are on the Cabinet Office City Deals website. (5 July 2012)

Commission on the Future of Local Government: Final report: the Commission, led by Leeds City Council, was set up to reassess the role of local government in the 21st century and put forward practical actions that aim to revitalise local democracy and public service. Its work is based on the concept of "civic enterprise": a new leadership style for local government where councils become more enterprising, businesses and other partners become more civic, and citizens become more engaged. This report argues that that while the will is there, local government still needs to be given the powers and resources to make growth happen. It concludes that councils are doing a good job in difficult times and if they want to adapt they can do even more. It makes five propositions about civic entrepreneurs, good growth, 21st century infrastructure, a new social contract with citizens, and English devolution. (3 July 2012) 

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

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Education

DfE: School funding reform - Arrangements for 2013-14: the DfE has published the final details of school revenue funding reform for pupils aged 3-16 from 2013-14, following on from the announcement and short consultation published on 26 March 2012. It marks the first step towards the introduction of a new national funding formula in the next Spending Review period which will ensure that similar pupils, no matter where in the country they go to school, attract similar levels of funding. It confirms the arrangements to simplify the local funding arrangements for 2013-14 and the new approach to high needs funding. Every local authority, with its Schools Forum, needs to complete its revised funding formula and submit it to the Education Funding Agency by 31 October 2012. The final proforma must be submitted by the end of January 2013. Local authorities also need to put in place arrangements with schools and education providers for high needs pupils. (29 June 2012)

DfE: Improving school food: announces that the co-founders of the Leon restaurant chain, Henry Dimbleby and John Vincent, are to examine school food across the country. They will create an action plan to accelerate improvement in school food and determine the role of food more broadly in school life. (4 July 2012)

DfE: Extending free early education to more two-year-olds: following a previous consultation, the Government has decided that around 20% of two-year-olds in England will be eligible for the first phase of the new legal entitlement to free early education from September 2013. This consultation seeks views on proposed eligibility criteria for the second phase of the new entitlement from September 2014 for around 40% of two-year-olds. The consultation closes on 15 October 2012. (5 July 2012)

School Staffing (England) (Amendment) Regulations 2012 (SI 2012/1740): these regulatons, which come into force on 1 September 2012, amend SI 2009/2680 by inserting a new regulation that requires the governing body of a maintained school to confirm whether or not a member of the teaching staff at that school has, within the last two years, been the subject of capability procedures, and if so, provide details, if asked to do so by the governing body of a maintained school, or the proprietor of an Academy School, to which that person has applied for a teaching post. (10 July 2012)

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

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Finance

DCLG: Annual Report and Accounts 2011-12: the Annual Report sets out the activities of the Department over the past year including progress against its priorities, along with the Department's aims in future. They provide an overview of DCLG's performance in 2011-12, structured around the five Coalition Priorities set out in its Business Plan, and the role the Department is playing in reducing the deficit. The resource accounts provide detailed accounting and expenditure information for 2011-12. The press release gives a summary of the key achievements. (2 July 2012)

DCLG: Localising support for council tax - A statement of intent on information sharing and powers to tackle fraud: localising council tax support is part of a wider set of reforms to the welfare system. On 17 May 2012  the Government published a statement of intent on the localisation of council tax support, and made a commitment to publish additional policy statements of intent while the Bill is still before Parliament. This supplementary document sets out two further policy statements of intent, setting out:

  • the purposes relating to council tax for which regulations will permit information held by HMRC to be supplied to billing authorities in England, and the purposes for which information may be supplied by DWP to billing authorities under existing powers in the Welfare Reform Act 2012; and
  • the necessary powers, offences and penalties to allow local authorities to investigate and tackle potential fraudulent council tax support claims.

(9 July 2012)

The unfolding LIBOR news story – potential consequences for local authorities: we have published an article that looks at the unfolding news story regarding the attempt by Barclays to manipulate the LIBOR and considers the possible far reaching consequences for local authorities. Any substantial savings held, and/or transactions carried out, between 2005 and 2009 and linked to LIBOR should be reviewed if the FSA discover that LIBOR was artificially changed by Barclays and a number of other banks under investigation. We now await the outcome of the FSA’s investigations into the other banks on the LIBOR panel. (6 July 2012)

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

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Fire and Rescue Authorities

DCLG: Fire and Rescue National Framework for England: the Government has a duty under the Fire and Rescue Services Act 2004 to produce a Framework that sets out the Government's expectations and requirements for fire and rescue authorities (FRAs), and keep it current. This revised Framework places an emphasis on local accountability and continues to provide an overall strategic direction for the FRAs. The priorities in the revised Framework are for FRAs to:
  • identify and assess the full range of foreseeable fire and rescue related risks that their area faces, make provision for prevention and protection activities and to respond to incidents appropriately;
  • work in partnership with their communities and a wide range of partners locally and nationally to deliver their service; and
  • be accountable to communities for the service they provide.

FRAs must have regard to the Framework in carrying out their duties. (11 July 2012)

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

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Governance

Charity Commission: Regulatory case report - The Knotty Ash Special School Trust (now known as Bright Park): report of the Charity Commission's investigation into the Trust, of which the City Council was the sole trustee. The investigation was undertaken after concerns were raised about the trustee's actions and failure to use the Charity's property in furtherance of its purposes. The Commission concluded that the City Council was in breach of trust with regard to allowing the improper use of charitable property that was not in furtherance of the Charity's objects or in the best interests of the Charity; there was also a lack of evidence of charitable activity. The report highlights wider issues where charities have a local authority as a sole trustee. It states that when a local authority is the sole trustee of a charity it must take care to be clear when it is acting in its capacity as a trustee; when acting as a trustee a local authority must act in the best interests of the charity and not permit its interests as a local authority to interfere with its decisions as a charity trustee. (23 March 2012)

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

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Health and Social Care

DH: Caring for our future - reforming care and support: this White Paper and the associated draft Bill (see below) set out proposals for the reform of adult social care and support. The proposals include:
  • a Universal Deferred Payments scheme enabling councils to lend money to individuals that need care, and to recoup the money when the house is sold after the person’s death;
  • a legal entitlement to a personal budget;
  • a number of new duties on local authorities, such as a duty to develop and maintain a diverse range of high quality care providers locally;
  • a duty to ensure that adult social care and housing work together, with a new capital fund, worth £200m over five years, to support the development of specialised housing for older and disabled people; 
  • a duty to incorporate preventative practice and early intervention in care services;
  • trailblazer areas to develop new ways of investing in supporting people to stay active and independent, such as Social Impact Bonds;
  • local authorities will be discouraged from contracting 'by the minute’;
  • a national minimum eligibility threshold for access to care, and a similar threshold for support for carers;
  • pilots to test the benefits of direct payments for people in residential care;
  • the transfer of £300m (£100m in 2013/14 and £200m in 2014/15) from the NHS to social care to support the transformation of local services and promote better integrated care for patients and service users; and
  • the NHS will be required to work with local authorities and local carers' organisations to agree plans and budgets to identify and support carers.

The DH has published a number of other documents alongside the White Paper, including:

  • Draft Care and Support Bill: revokes and replaces existing social care laws and provides the legal framework for some of the main principles of the White Paper; it also includes some health measures on the establishment of the Health Research Authority and Health Education England. The Bill will be introduced into Parliament in late 2013 with a view to it coming into force in April 2015;
  • Caring for our future: progress report on funding reform: the Government accepts the principles of the Dilnot Commission's model. It intends to base a new funding model on these principles but is unable to commit to introducing a new system at this stage. Funding reform will be considered at the next Spending Review; 
  • Consultation on new safeguarding power: seeks views on a proposed duty on local authorities to make enquiries where there is a safeguarding concern and on powers to support this duty, e.g. a power of entry, enabling the local authority to speak to someone with mental capacity who they think could be at risk of abuse and neglect, in order to ascertain that they are making their decisions freely. The consultation closes on 12 October 2012; and
  • Reforming the law for adult care and support: The Government’s response to Law Commission report 326 on adult social care: formal response to the report that lays the foundations for the legal framework set out in the draft Care and Support Bill. 

See also the LGA's On the day briefing that comments on the Paper's key messages for local authorities. (11 July 2012)

DH: DH review – Winterbourne View interim report: this letter from David Nicholson, NHS Chief Executive, and David Behan, Director General Social Care, Local Government and Care Partnerships, highlights action to be taken forward by local authorities and NHS bodies as set out in the recent interim report of the review into the events at Winterbourne View hospital that was published on 25 June 2012. They say that local authorities and PCTs need to work together to assure themselves that they are continuing to take all action needed to improve outcomes for people with learning disabilities in preparation for the outcomes of the final report into the events at Winterbourne View, which will be published in the autumn. (4 July 2012)

Institute for Fiscal Studies: NHS and social care funding: the outlook to 2021/22: this report, porduced by the Nuffield Trust for the IfS, maps the longer term financial challenges facing the health service. It plots future spending scenarios for the NHS in England and examines their consequences for other public service spending and for taxation. It also assesses future prospects for social care funding: demographic pressures are increasing demand for social care, while the recent Dilnot Commission on Funding of Care and Support proposed a reform of the system for funding socia  care in England that would increase the cost to the taxpayer. it finds that the result of combining the Commission’s recommendations for funding social care with policies that keep English NHS spending constant as a share of national income is that all other areas of public service spending would grow at just 0.3% p.a. over the seven years from April 2015, absent any tax increases, borrowing increases or further cuts to welfare spending. (4 July 2012)

DH: CRAG consultation 2010 - Consultation on issues concerning the current charging arrangements for residential social care: Government response: sets out the Government's response to the 2010 consultation on areas of the current charging arrangements for residential social care. The consultation covered:

  • the treatment of personal injury compensation awards;
  • the treatment of single premium investment bonds carrying an element of life insurance;
  • introducing a disregard for pre-paid funeral plans; and
  • deferred self top-ups during the 12 week property disregard period.

The Government has decided to consider these proposals as part of the wider work on reform of care and support funding, rather than proceed with them separately. (10 July 2012)

DWP: The Future of the Independent Living Fund (ILF): seeks views on the proposal to close the ILF in 2015, and for local authorities to take on the funding and responsibility for ILF users’ care and support. It also discusses how closure could be managed in a way which would minimise disruption to the care and support needs of existing ILF users. The consultation closes on 10 October 2012. (12 July 2012)

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

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Housing

DCLG: 120 councils sign up to keep Right to Buy cash: announces the local authorities with retained housing stock that have signed up to the Government's Right to Buy deal. Under the deal, authorities can keep the receipts from their additional Right to Buy sales but must spend it on new affordable homes for rent within three years of first receiving it. Right to Buy funds should account for no more than 30% of the total spend on new homes. If the money remains unspent after three years it will be returned to Whitehall to be invested nationally in more housebuilding. (2 July 2012)

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

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Judicial Review

R (Harrow Community Support Ltd) v Secretary of State for Defence [2012] EWHC 1921 (Admin) (Admin Ct): HCS, a residents' association, applied for judicial review of the SoS's decision to locate a Ground Based Air Defence system and military personnel on the roof of a residential tower block in Leytonstone for the duration of the 2012 Olympic Games. The residents contended that in making the decision, the SoS had failed to consult adequately and failed to comply with the Public Sector Equality Duty, and that the decision breached their human rights under Art.8 and Protocol 1 art.1 ECHR.
The court held, dismissing the application, that the first duty of the Government was to defend the realm and to protect national security. Military operational deployments for reasons of national security were matters for which the Government was answerable to Parliament and not, in the absence of bad faith or acting outside the limits of the discretion, the courts. The Crown also had a positive obligation to take measures to protect the public's Art.2 and other human rights.  Art.8 was a qualified right to which the proportionality test must be applied. Here, the 'proportionality' of the deployment was overwhelming - the manifest purpose of the deployment was to prevent or deter an attack on the Olympic Park which would lead to massive loss of life. There was no statutuory duty to consult - the proposed use fell within the scheme under the TCPA 1990 relating to emergency development by the Crown which did away with the need for an express application for, and grant of, planning permission or consultation. The Public Sector Equality Duty claim was unarguable -  the SoS did carry out a careful Equality and Disability Impact Assessment (EDIA) during the decision making process and the evidence was that the SoS's attention was specifically drawn to the s.149 duty and that the EDIA was conscientiously taken into account at all levels of decision making. Furthermore, the need for very great promptness in bringing proceedings was obvious and had not been met in this case. The failure to act promptly was seriously prejudicial to the SoS and the public interest in appropriate measures being taken to defend the 2012 Olympics. (10 July 2012)

Eventech Ltd v Parking Adjudicator; Camden LBC and Transport for London (Interested Parties) [2012] EWHC 1903 (Admin) (Admin Ct): E was the registered keeper of a fleet of minicabs that was operated by its associated company AL. E applied for judicial review of TfL's and London boroughs' Bus Lane Policy to permit black cabs to drive in most London bus lanes but not minicabs, save to pick up or set down pre-booked passengers. E claimed that this policy: offended against the right of freedom to provide services (Art.56 TFEU) and of freedom of establishment (Art.49 TFEU) and/or the EU general principle of equal treatment; was Wednesbury unreasonable at common law; and/or to amounted to favourable treatment of black cabs as against minicabs so as to constitute unlawful State Aid, contrary to Art.107 TFEU.
The court held, refusing the application, that free movement of services in the transport sector was not governed by Art.56 TFEU but by Art. 58(1) TFEU and so the complaint relating to restriction on the freedom to provide services did not arise. There was a clear distinction between the need of black cabs to be in the bus lanes, by way of visibility and availability of, and access to, black cabs for those hailing a cruising taxi. The situations of minicabs and black cabs were not comparable and their different treatment was objectively justified. The policy to  include black cabs but exclude minicabs was not Wednesbury unreasonable. Regarding state aid, the Bus Lane Policy, even though it might have an impact on competition between minicabs and those black cabs who could be pre-booked, did not affect trade between Member States; even if it did, that measure did not offend against the Selectivity principle. (11 July 2012)

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

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Localism Act 2011

DCLG: Policy statement for Part 2 of the Localism Act 2011: Part 2 of the Localism Act introduces a discretionary power for a Minister to require a public authority to pay some, or all, of an ECJ financial sanction where the public authority has demonstrably caused or contributed to that sanction. The Act includes a duty for the Secretary of State to consult upon and publish a policy statement to which a Minister and any independent advisory panel must have regard when exercising functions under Part 2. This policy statement sets out a fair, proportionate and reasonable approach for the use of Part 2. it states that costs would only be incurred by those public authorities that had responsibility to comply, had demonstrably caused or contributed to the financial sanction, and had previously been designated under s.52 of the Localism Act for the infraction case in question. The Government expects that, through the use of these provisions to incentivise public authorities' compliance, the risk of financial sanctions being allocated to the UK (and therefore the risk to public authorities) will be significantly reduced. (13 July 2012)

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

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Maladministration

LGO: Annual report 2101/12 - Delivering public value: the Local Government Ombudsmen have published their annual report on their performance over the past year. in 2011/12, the LGO Advice Team registered 20,906 complaints and enquiries, of which 10,627 complaints were allocated to investigators and the investigative teams made 11,229 decisions, with redress obtained in 25.3% of all complaints decided. The report highlights how complaints and enquiries about adult social care continue to rise, with an increase of 24% in 2011/12. (12 July 2012)

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

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Negligence

Hammersley-Gonslaves (a Child by his Litigation Friend Gonsalves) v Redcar & Cleveland BC (Unreported) (CA): the court held that the local authority was not liable in negligence for an injury sustained by a school pupil when he was hit by another pupil's golf club at the start of a golf lesson. The court found that the teacher had provided adequate supervision, and could not have been expected to see every action of all 22 boys at all times. (13 July 2012)
The judgment is available on Lawtel (password reuqired)

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

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Officers

Local Government Officers (Political Restrictions) (Amendment) (England) Regulations 2012 (SI 2012/1772): these regulations, which come into force on 6 August 2012, amend SI 1990/851 so as to disapply restrictions on the public political activities of the Deputy Mayor for Policing and Crime, which is a politically restricted post for the purposes of Part 1 of the Local Government and Housing Act 1989. (11 July 2012)

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

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Overview and Scrutiny

DH: Consultation on local authority health scrutiny: seeks views on proposals to update the arrangements and regulations for local authority health scrutiny, to bring them into line with changes introduced by the Health and Social Care Act 2012. The proposals include:

  • local authorities and the NHS to agree and publish clear timescales for making a decision on whether a proposal should be referred;
  • a new intermediate referral stage to the NHS Commissioning Board for some service reconfigurations;
  • local authorities to take account of the financial sustainability of services when considering a referral; and
  • health scrutiny to obtain the agreement of full Council before a referral can be made. 

The consultation closes on 7 September 2012. (12 July 2012)

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

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Police

Police and Crime Panels (Nominations, Appointments and Notifications) Regulations 2012 (SI 2102/1433): s.28 of the Police Reform and Social Responsibility Act 2011 provides for each police area in England and Wales to have a Police and Crime Panel with the function of scrutinising the actions and decisions of the Police and Crime Commissioner. These regulations, which come into force on 2 July 2012, set out the procede for the appointment of members of Police and Crime Panels. In England, the local authorities covered by the police force area must make panel arrangements and each authority must nominate and appoint at least one of its members to be a member of the Police and Crime Panel. In Wales, the Secretary of State is responsible for establishing and maintaining Police and Crime Panels, and who invites each relevant local authority to nominate at least one of its members for appointment to the Police and Crime Panel, and is required to appoint the nominated persons. The regulations require the relevant local authorities to notify the Secretary of State, by specified dates, of any failure to comply with the duty to make panel arrangements and to nominate and appoint councillors. (7 June 2012)

Draft Police and Crime Panels (Modification of Functions) Regulations 2012: these draft regulations, once in force, modify Sch.6 to the 2011 Act governing the arrangements for the formation and maintenance of Police and Crime Panels where a relevant local authority has failed to exercise its powers to nominate or appoint members. (11 June 2012)

Draft Police and Crime Commissioner Elections Order 2012: this draft Order, once in force, provides for the conduct of elections for a Police and Crime Commissioner for police areas in England and Wales. It sets out the rules for the conduct of the elections to be held on 15 November 2012, and every four years thereafter, as well as for the questioning of such elections and the consequences of any irregularities. (15 May 2012)

Draft Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012: these draft regulations, once in force, set out the functions placed on returning officers in exercise of their powers in respect of the Police and Crime Commissioner elections held on 15 November 2012 and every four years thereafter, in accordance with the Police Reform and Social Responsibility Act 2011. (15 May 2012)

Police (Complaints and Misconduct) Regulations 2012 (SI 2012/1204): these regulations, which come into force on 22 November 2012, consolidate SI 2004/643 and other existing regulations about police complaints, with limited changes designed to reflect amendments made to the primary legislation, including the replacement of police authorities with directly elected Police and Crime Commissioners, and to improve the efficiency and effectiveness of the police complaints system. (3 May 2012)

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

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Procurement

Local Government Best Value (Exclusion of Non-commercial Considerations) Order (Northern Ireland) 2012 (SR 2012/271): this NI SR, which comes into force on 4 July 2012, specifies that two of the matters listed in Art.19(4) of the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1992 , 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. (4 July 2012)

Procurement alert: What can you do when a contractor is unable to deliver?: recent reports suggest that G4S, the private security firm tasked with keeping the London 2012 Olympics safe and secure, may be unable to supply all the guards it was contracted to deliver for the games. This situation highlights a problem that any contracting authority can face - what to do if a contractor cannot deliver. As the Government will be well aware, a perceived failure on the part of a contractor can lead to a hefty share of the blame falling on the shoulders of the contracting authority. Service users inevitably turn to the authority in charge for answers about what is being done to put this right. As the example of the Olympic Games clearly illustrates, the show must go on. We have published an article that looks at the practical steps that a public body can take when a contractor is unable to deliver. (13 July 2012)

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

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Registration Services

Home Office: New measures allow couples to tie the knot at any time: s.114 of the Protection of Freedoms Act 2012 removes restrictions in the Marriage Act 1949 and other legislation so to allow people to marry or register a civil partnership outside the hours of 8am-6pm. This press release announces that the Home Secretary intends to bring these changes into force on 1 October 2012. (2 July 2012) 

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

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Regulatory Services

DfT: Licensing motorcycles as private hire vehicles: guidance for local licensing authorities who want to license motorcycles as private hire vehicles. The note provides best practice advice about assessing applications for motorcycle PHVs and attaching conditions to licences. (2 July 2012)

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

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Standards

Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) (Amendment) Order 2012 (SI 2102/1714): this Order, which comes into force on 3 July 2012, amends art.7 of the 6th Localism Act Commencement Order (SI 2012/1463) so as to limit the period of an appointment of an Independent Person under the transitional provisions to not later than 30 June 2013. This amendment does not apply to appointments been made before 24 July 2012 where the period of that appointment ends on or after 1 July 2013. (2 July 2012)

DCLG: Letter from Bob Neill to local authority leaders - New standards and conduct arrangements: the Local Government Minister has written to local authorities to update them on the introduction of the new standards and conduct arrangements for members, which apply from 1 July 2012 in all principal authorities. His letter focuses on the role of the Independent Person. (28 June 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 events 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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