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Read MoreThis 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 thetwo weeks up to27 July 2012. Items are set out by subject, with a link to where the full document can be found on the internet.
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:
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
DWP: Freud names local authority pilot long-list for Universal Credit: announces the 15 local authorities recommended as potential pilot sites for Universal Credit. The pilots will focus on delivering the face to face support some people may need to make claims for Universal Credit, including online support, help with budgeting and job searches, reducing fraud and error, and reducing homelessness. DWP will now draw up a shortlist of those that will go ahead in the Autumn. (20 July 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
DfE: Repeal of the duty on Ofsted to conduct an annual Children’s Services Assessment of each local authority in England: announces that the Government has apporved theLegislative Reform (Annual Review of Local Authorities) Order 2012 (SI 2012/1879) that repeals s.138 of the Education and Inspections Act 2006 so that Ofsted will no longer be required to produce an annual assessment of each local authority’s children’s services. Ofsted has already put in place a new, universal, child-focused inspection regime for local authority services for the protection of children. A new inspection regime for local authority fostering, adoption and looked after children’s services will be introduced early in 2013, and a new, multi-inspectorate child protection inspection framework will follow in mid-2013. (18 July 2012)
DCLG: Listening to troubled families - A report by Louise Casey CB: this report highlights the chaotic personal histories of the kinds of families who will be targeted as part of the Government's commitment to turn around the lives of 120,000 troubled families by 2015. Louise Casey's early conclusions are that a whole-family approach is often best for dealing with multiple and inter-linked problems rather than approaches that deal with single problems or single individuals within a household.(18 July 2012)
DfE: Childcare Commission - call for evidence: DfE and DWP have set up a Commission on Childcare that will look at how to make childcare more affordable for working families and reduce any unnecessary burdens on providers. It seeks the views of parents, early years professionals and others with an interest in childcare on how to help improve the accessibility and affordability of childcare. This evidence will inform the Commission's report that is scheduled to be published in the autumn. The closing date for comments is 31 August 2012. (19 July 2012)
DfE: Consultation on the review of contact arrangements for children in care and adopted children and on the placement of sibling groups for adoption: the Government has published two discussion papers seeking views on two aspects of the care and adoption systems:
The closing date for comments on either paper is 31 August 2012. (20 July 2012)
DH: New grants to support children’s hospice and hospice at home services: announces a further £721,000 available to support new children hospices in England, in addition to the existing annual revenue grant of £10m. The new grant is available for voluntary sector organisations that are providing children’s hospice and hospice at home services to children and young people between 0-19 years old. The closing date for applications is 16 September 2012. (20 July 2012)
Breaks for Carers of Disabled Children (Wales) Regulations 2012 (SI 2012/1674 (W.215)): these regulations, which came into force in Wales on 28 June 2012, prescribe how local authorities must carry out their duty under para.6 of Sch.2 to the Children Act 1989 to provide short breaks for the carers of disabled children in their area. (26 June 2012)
R (TT) v Merton LBC [2012] EWHC 2055 (Admin) (Admin
Ct): TT applied for judicial review of the Council's policy
relating to the financial assistance to be given to special
guardians. TT was the special guardian of a 4 year old boy, C, who
was the half-brother of TT's granddaughter. The Government had
issued Special Guardianship statutory guidance that included
advice that "in determining the amount of any ongoing financial
support, the local authority should have regard to the amount of
fostering allowance which would have been payable if the child were
fostered. The local authority's core allowance plus any enhancement
that would be payable in respect of the particular child, will make
up the maximum payment the local authority could consider paying
the family. Any means test carried out as appropriate to the
circumstances would use this maximum payment as a basis". The
Council's adopted policy stated that "children who are the subject
of Special Guardianship Orders are not looked after children, they
have become part of the family unit. The additional costs for a
looked after child are therefore not applicable to a child in a
Special Guardianship arrangement. The Local Authority therefore
adjusts the figures given by the Fostering Network and takes 2/3 of
this as the figure which will be required to look after a child of
that age. This deducts the additional 50% which is allowed for by
the Fostering Network". TT contended that when formulating
this policy, the Council had failed to have proper regard for
the amount of fostering allowance which would have been payable if
C were fostered, as required by the statutory guidance,
and that it had adopted a flawed method of assessing her
means for the purpose of arriving at any deductions that fell to be
made from the allowance.
The court held, granting the application, that where a local
authority proposed to have a policy that set the allowance to be
paid to special guardians, it had to comply with the statutory
guidance and so consider the Fostering Network's minimum
recommended allowances and make such adjustments to those
allowances to reflect the (lower) costs to a special guardian as it
considered appropriate. Compliance was not achieved by ignoring the
additional costs of caring for a child not born into the family or
assessing them at nil. The Council had produced no reasons, cogent
or otherwise, for not complying with the guidance, therefore the
decision to adopt a level of allowance for special guardians of two
thirds of the Fostering Network's minimum allowances was unlawful
and must be quashed. The Council had departed from the means
test suggested and adopted an approach less favourable to special
guardians. However, the DfE's model means test did not carry
the same weight as the statutory guidance and the differences
adopted by the Council, even when taken cumulatively, were not ones
that no reasonable local authority could have taken. (25 July
2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Cabinet Office: Consultation principles - guidance: sets out the principles that Government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation. It states that the governing principle is proportionality of the type and scale of consultation to the potential impacts of the proposal or decision being taken, and that thought should be given to achieving real engagement rather than following bureaucratic process. In particular, it advises that the timeframe for consultation should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response, and might typically vary between two and 12 weeks. It also sets out the circumstances where consultation may not be not appropriate. This guidance replaces the Code of Practice on Consultation issued in July 2008 but does not take precedence over statutory or mandatory consultation requirements. (17 July 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
DfE: More new Free Schools than ever before to raise standards and increase choice: announces the 102 successful applicants that have been granted approval to progress to the implementation stage of the Free Schools process, to open in 2013 and beyond. These include five special Free Schools and 12 Alternative Provision Free Schools. There is a list on the DfE website. (13 July 2012)
Pupil Referral Units (Miscellaneous Amendments) (England) Regulations 2012 (SI 2012/1825): these regulations, which mainly come into force on 1 September 2012, amends SI 2007/2978 so as to give the SoS power to direct a local authority to close a PRU requiring significant improvement, and to constitute the management committee of a PRU so that it consists of interim executive members if the PRU requires significant improvement or special measures, or where the SoS considers it to be underperforming. They also amend regulations on the closure of PRUs to take account of this change, and amend the definition and eligibility criteria of PRU management committee “community members”. (13 July 2012)
Education (School Government) (Terms of Reference) (England) (Amendment) Regulations 2012 (SI 2012/1845): these regulations, which come into force on 1 September 2012, omit reg.8 of SI 2000/2122 so as to remove the obligation on head teachers of maintained schools to produce a curriculum policy and review it yearly. (17 July 2012)
Academies (Land Transfer Schemes) Regulations 2012 (SI 2012/1829): Part 1 of the new Sch.1 to the Academies Act 2010 (inserted by the Education Act 2011) enables the SoS to make a scheme to transfer local authority land that a local authority has identified as a possible site for a new school, or existing or former school land that is no longer needed for the school, from a local authority to a person concerned with running an academy. These regulations, which come into force on 3 August 2012, set out the documents and information that a local authority must provide, and the steps it must take, where the SoS makes such a scheme for the transfer of school land. (13 July 2012)
School Governance (Transition from an Interim Executive Board) (Wales) Regulations 2012 (SI 2102/1643 (W.212)): these regulations, wich come into force in Wales on 1 September 2012, provide for the transition of a school’s governing body from being constituted as an interim executive board in accordance with Sch.1A to the School Standards and Framework Act 1998 to being a governing body constituted in accordance with s.19(1) of the Education Act 2002. (26 June 2012)
Education (Induction Arrangements for School Teachers) (Wales) (Amendment) Regulations 2012 (SI 2012/1675 (W.216)): these regulations, which come into force in Wales on 1 September 2012, amend SI 2005/1818 regarding induction arrangements for teachers. In particular, they amend the length of an induction period that must be served so that teachers who serve an induction period by completing periods of employment of less than one school term or two consecutive half terms must serve 380 school sessions (equivalent to three school terms). They also remove the requirement for periods of employment to be of at least one term or two consecutive half terms and amend the supervision and training requirements during the induction period. (28 June 2012)
Education (Middle Schools) (Wales) Regulations 2012 (SI 2012/1797 (W.227)): these regulations, which come into force in Wales on 1 September 2012, specify the circumstances in which a middle school is to be treated as either a primary or secondary school for Education Act purposes. They revoke and replace SI 1980918. (10 June 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
DH: Local Health Resilience Partnerships - resource pack: this pack supports the roll-out of Local Health Resilience Partnerships - non statutory bodies that will provide strategic forums for joint planning for emergencies for the new health system and will support the health sector’s contribution to multi-agency planning through Local Resilience Forums. The new arrangements for local health emergency preparedness, resilience and response come in on 1 April 2013 under the Health and Social Care Act 2012. The pack includes a summary of the principal roles of health sector organisations, model Membership and Terms of Reference and model Concept of Operations. (26 July 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
DCLG: Business rates retention - Technical
consultation: seeks views on a range of detailed
technical issues concerning practical implementation of the
Business Rates Retention proposals. It focuses on how the
Government proposes to calculate local authority start-up funding
allocations, baseline funding levels as well as other parameters
which are required for the setup and operation of the Business
Rates Retention scheme. The consultation closes on 24
September 2012. (17 July 2012)
DCLG has published a number of other papers alongside this
consultation:
DCLG: Government Resource Review - Proposals for business rates retention: Technical paper on Tax Increment Financing and new development deals: sets out the Government's policy on Tax Increment Financing (TIF) and how it will work within the new local Rates Retention scheme under the Local Government Finance Bill. (17 July 2012)
DCLG: Localising support for council tax - Draft Council Tax Reduction Schemes (Prescribed Requirements) Regulations: these draft regulations set out the additional requirements, including classes of persons, which must or must not be included in a Council Tax Reduction Scheme, so as to ensure that each billing authority’s scheme contains certain administrative provisions relating to all schemes and provision ensuring support for pensioners in financial need.
DCLG: Localising support for council tax - Draft
Council Tax Reduction Schemes (Default Scheme)
Regulations: s.13A of the Local Government Finance Act
1992 requires each billing authority in England to make a scheme
specifying the reductions which are to apply to amounts of council
tax payable by persons, or classes of person, whom the authority
considers are in financial need. The Secretary of State must
prescribe a “default scheme” that takes effect if the authority
fails to make its own scheme on or before 31 January 2013. These
draft regulations set out the Default Council Tax Reduction Scheme
under the Act. (17 July 2012)
Both sets of draft regulations are issued for informal
consultation, and DCLG welcomes feedback - see the Explanatory Note to the draft regulations. (17
July 2012)
DCLG: Council Tax Information Letter 1/2012: Service personnel and second homes: this letter reminds local authorities of the position regarding service personnel to ensure that they are treated fairly and not disadvantaged when applying for a council tax second homes discount. (17 July 2012)
DCLG: Council Tax Information Letter 2/2012 - Potential council tax discount on empty homes: this information letter provides clarification on the proposed discounts for properties that are unoccupied and unfurnished. (27 July 2012)
Hunt v North Somerset Council [2012] EWHC 1928 (Admin)
(Admin Ct): H, who suffered from ADHD and had learning
difficulties, applied for an order quashing an item of the
Council's Revenue Budget 2012/13 relating
to financial provision for youth services. The Budget decision
proposed a reduction in expenditure on youth services of
£364,793 in the year 2012/13, which would be achieved by
the Council ceasing to provide many youth services directly and
also ceasing to finance some or all of those services. H contended
that in reaching its decision, the Council had failed to comply
with s.507B of the Education Act 1996 (duty to secure access for
young persons to leisure-time activities) and related statutuory
guidance, and that it had failed to comply with its Public Sector
Equality Duty under s.149 of the Equality Act 2010.
The court held, dismissing the application, that by approving the
Budget proposal that could lead to the closure of youth
services, the Council was exercising a function under
s.507B as it was making a decision which had a direct impact,
at least potentially, upon the sufficiency of positive leisure-time
activities and facilities for qualifying young persons. It was
therefore obliged by s.507B(9) to take steps to ascertain the views
of qualifying young persons about those matters and to take account
of those views before approving its Revenue Budget. On the
evidence, the Council had taken steps to ascertain the
views of qualifying young persons and it had taken such views as
were offered into account before approving the policy
document. There was no legal obligation on the Council to
repeat the process of seeking to ascertain the views of young
persons, given the short period of time which elapsed between
the adoption of the policy and the Budget decision,
and there was no important change of circumstances within that
time frame which called for separate consideration.
The Equality impact Assessment identified those budget
proposals which had a high impact on service users, it dealt
explicitly and in detail with the impact of the reduction in the
youth service budget, it referred explicitly to impact upon a
number of the protected characteristics itemised in s.149(7) of the
2010 Act, it set out the information upon which it based its
conclusions, and it set out the steps to be taken to minimise or
mitigate that impact. The members therefore were provided with
sufficient information so as to enable them to comply with their
statutory duty under s.149 and they did have due regard to
the Public Sector Equality Duty when they reached their
decision to approve the Revenue Budget.
Obiter: If the Council had been found to have acted
unlawfully, the court could have granted any remedy which was
appropriate and it would not have been constrained by s.66 of
the Local Government Finance Act 1992, which requires the court to
quash the calculation which was the subject of the
challenge. A quashing of one component of the Revenue Budget
did not mean that the Council had set its Council Tax without
making the calculations required by the 1992 Act - the one did
not follow from the other. The position would be that
the Council would have complied with its statutory duty to
undertake calculations before setting the Council Tax but that
thereafter a minor component of the calculation had been quashed.
The court should be very slow to interpret the 1992 Act in
such a manner so as to frustrate legitimate challenges to the
decision-making process leading to the approval of local authority
budgets and/or the setting of Council Tax as a consequence of the
approval of such budgets. (18 July 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Pusey v Somerset CC [2012] EWCA Civ 988 (CA): P, who
were farmers and landowners, appealed against the dismissal
of their claim against the Council for damages for
nuisance. P alleged that the use of a strip of land on the
highway adjacent to their land as a lay-by had materially
interfered with their reasonable use and enjoyment of their
property and formed an actionable private nuisance. The use they
complained about included noise, fumes and anti-social behaviour.
The Council argued that the only activity that had taken place on
the strip was ancillary to the lawful use of the highway. It
also contended that it had a statutory duty to assert and protect
the lawful use of the highway under s.130 of the Highways Act
1980, and that the right of the public to use the highway was not
limited to passing and re-passing over it but included the right to
stop and park; therefore activities which constituted the lawful
use of the highway (e.g. vehicle noise from lorries parking and
re-starting their engines) could not amount to an actionable
nuisance even if audible to P. The judge decided that no actionable
nuisance had been proved and that activities on the lay-by did not
amount to an unreasonable interference with P's use and enjoyment
of their own land. P appealed, contending that the judge had
erred.
The court held, dismissing the appeal, that the judge had
been right to have mentioned the local support for the lay-by
as part of the history because it was relevant to a consideration
of subsequent events; however, he was well able to dissociate the
merits of the lay-by from an objective consideration of what
actually occurred on siteand there was no suggestion that he
wrongly took into account the balance of public
interest. Setting a threshold was not a legitimate means of
establishing whether the degree of interference which the claimant
had experienced amounted to an actionable nuisance; however,
the judge had not applied one in this case. His summary of the
frequency of the parking, swearing, urination and the other
incidents complained of was undertaken in order to assess the
overall level of activity and its effect upon P's reasonable
enjoyment of their property. Nor had the judge been misled by
his analysis of the frequency and duration of the individual
incidents into assessing their effect in isolation from each other
rather than by considering the cumulative effect of what occurred.
(19 July 2012)
If you wish to discuss any of the items noted in this section please contact Steven Eccles.
Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869): these regulations, which come into force on 24 August 2012, provide that where a local housing authority uses a local connection requirement as a criterion to decide whether a class of persons are qualifying persons for an allocation of housing accommodation, they must not apply that criterion to certain persons who are in or connected to the armed forces. (19 July 2012)
If you wish to discuss any of the items noted in this section please contact David Isaacson.
If you wish to discuss any of the items noted in this section please contact Adrian Neale.
HC Communities and Local Government Committee: Local Government Ombudsman: this report critically examines the role and efficacy of the LGO, focusing on whether the LGO is providing the service to the public which the legislation requires and the taxpayer expects. It finds that the LGO needs to carry out a significant number of changes, including:
The LGO has issued its response to the report in which it agrees that some changes need to be made to the organisation, and outlines progress with its comprehensive programme of change over the past 12 months. (17 July 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
NALC: New code of conduct for parish and town councils: the NALC has published its own model Code of Conduct that local councils may adopt. The model Code includes the obligations regarding disclosable pecuniary interests that are required by the Localism Act 2011. (20 June 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
HM Treasury: Government uses fiscal credibility to unveil new infrastructure investment and exports plan: the Government has launched a new UK Guarantees scheme that aims to kick start critical infrastructure projects that may have stalled because of adverse credit conditions. The scheme has three parts:
The UK Guarantees scheme is being run by Infrastructure UK. (18
July 2012)
Bevan Brittan has published an Alert on the implications of
this announcement for public and private sector sponsors of
infrastructure projects: Government unveils £40bn guarantee scheme to help
deliver infrastructure projects.
If you wish to discuss any of the items noted in this section please contact David Hutton.
HC Communities and Local Government Committee: The role of local authorities in health issues: from 1 April 2013, top tier local authorities will assume responsibilities for public health, and Health and Wellbeing Boards will be established as statutory committees responsible for encouraging integrated working and joint strategies on health and wellbeing. The CLG Committee is inviting submissions from interested parties on the future role of English local authorities in health issues. The closing date for submissions is 18 October 2012. (17 July 2012)
NICE: Public health briefings for local government: NICE has developed public health briefings for local authorities and their partner organisations that provide advice on the public health actions that are most effective and provide best value for money. The first three briefings cover tobacco, workplace health and physical activity. (25 July 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
DCLG: Fourth statement of new
regulation: provides information on all regulations within
the scope of Government's One-In, One-Out regime (including
measures which are deregulatory) that are scheduled to come into
force between 1 July and 31 December 2012, to give businesses an
indication of when regulations affecting them will be coming into
effect.
See also the Update on the third statement of new regulation
that gives details of the progress of each measure in the
Third Statement that came into force between 1 January and 30 June
2012. (17 July 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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For more details on our training programme or information on tailored training to meet your authority's requirements, please contact our Events team.
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