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 Services    Health and Social Care
   Children's Services    Human Rights
   Delivery of Services    Localism Act 2011
   Education    Police
   Employment    Procurement
   Equality and Discrimination    Shared Services
   Finance    Standards
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme 


Adult Social Services

South Gloucestershire Safeguarding Adults Board: Winterbourne View Hospital - A Serious Case Review: this review by independent adult safeguarding expert Margaret Flynn was commissioned following the BBC's Panorama programme in May 2011 that disclosed the abuse of adults with learning disabilities and autism at Winterbourne View, a private hospital owned and operated by Castlebeck Ltd. The report shows that the abuse at the hospital resulted from serious and sustained failings in the management procedures of Castlebeck Ltd. It also identifies where other organisations’ systems and procedures fell short in commissioning patient care, and in reviewing and safeguarding the wellbeing of patients before and during their stay at Winterbourne View. It makes a number of recommendations, including a call for greater investment in community-based care in order to reduce the need for in-patient admissions at such assessment, treatment and rehabilitation units. It also calls for notifications of concern, including safeguarding alerts, hospital admissions and police attendances, to be better coordinated and shared amongst safeguarding organisations to allow earlier identification of potential problems and earlier action to be taken. (7 August 2012)
CQC has published its Internal management review of the regulation of Winterbourne View that sets out the results of its own investigation into its role as regulator.

DH: Regulated activity (adults) The definition of ‘regulated activity’ (adults) as defined by the Safeguarding Vulnerable Groups Act 2006 from 10 September 2012: provides information on the scope of regulated activity in relation to adults, as defined in the Safeguarding Vulnerable Groups Act 2006 (SGVA) as amended by the Protection of Freedoms Act 2012. Regulated activities are the activities that the Independent Safeguarding Authority and, from December 2012, the Disclosure and Barring Service can bar people from engaging in. The definition of regulated activity for adults from 10 September 2012 identifies the activities provided to any adult which, if any adult requires them, mean that the adult is considered vulnerable at that particular time. The SVGA will no longer label adults as ‘vulnerable’ because of the setting in which the activity is received, nor because of the personal characteristics or circumstances of the adult receiving the activities. There is no longer a requirement for a person to carry out the activities a certain number of times before they are engaging in regulated activity - any time a person engages in the activities set out in this document, they are engaging in regulated activity. (7 August 2012)

DH: Review of Carers Direct information and advice: this report reviews the information and advice services provided through the Carers Direct website and telephone advice line. It  finds that the service met the initial objectives set for the improvement of advice and information available to carers. It also suggests a way forward towards ensuring a coherent, cost effective approach to services that is aligned with developing policy and delivers a quality service to carers. (8 August 2012)

House of Commons Library: Draft Care and Support Bill 2012-13 - Commons Library Standard Note: this briefing paper provides general information on the draft Care and Support Bill that was announced in the Queen’s Speech on 9 May 2012 and published by the Government on 11 July 2012. The draft Bill aims to focus care and support legislation on the well-being of individuals. It also places duties on local authorities to provide information and advice relating to care, gives carers the right to support as well the people for whom they care, and includes measures to ensure the ‘portability’ of care provision for people who move from one area to another. This paper sets out the background to the draft Bill, gives a summary of its main provisions and looks at how it is being taken forward. (6 August 2012)

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

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Children's Services

LGA: Local authorities' approaches to children's trust arrangements: sets out the findings of research by the National Foundation for Educational Research (NFER) on how local authorities are fulfilling their duty to promote cooperation with partners to improve children and young people’s health and wellbeing. It finds that local authorities and partners are building on existing foundations to construct new ways of working to meet children’s health and wellbeing needs and that generally, local authorities appeared to have taken advantage of new flexibilities and freedoms around children’s trust arrangements, e.g. by streamlining board membership. (23 July 2012)

Ofsted: Childcare - Registering school-based provision: this factsheet sets out when a maintained or independent school must register its early years or childcare provision with Ofsted, where this provision is made directly by the school. (3 August 2012)

Coventry City Council v C [2012] EWHC 2190 (Fam) (Fam D): the High Court has given guidance on the use of Section 20 agreements to effect post-birth separation of mother and child.  
M had been admitted to hospital as an emergency and her baby, C, was delivered by Caesarean section. M initally refused to give consent under s.20 of the Children Act 1989 to the accommodation of her child but later that day, after receiving morphine for pain relief, she did sign a Section 20 agreement. C was then removed from M on the day she was born, and was placed for adoption. The Council applied for care and adoption orders for C; M applied for C to be returned to her, alleging breach of her human rights under Art.8 ECHR and lack of consent to the Section 20 agreement. The Council conceded M's human rights claim.
The court held, granting the applications, that C's future permanent care was best secured by adoption and a placement order should be made. The court was satisfied that M's consent should be dispensed with. Regarding the Section 20 agreement, the use of Section 20 was not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity under the Mental Capacity Act 2005 to make that agreement; and where there was capacity, it was essential that any consent was properly informed and was fairly obtained. Here, the fact that M could make decisions about surgery and pain relief did not necessarily mean that she could make decisions about the removal of her child, nor could willingness to consent be inferred from silence, submission or even acquiescence - it was a positive stance. The judge then gave guidance on obtaining consent under Section 20 from a parent to the removal of a child immediately or soon after birth, setting out 10 important aspects that social workers should consider. (30 July 2012)

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

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Delivery of Services

LGA: "Future Council" pilots worth £150,000 announced: the LGA has announced five new Future Council pilots, worth up to £150,000 altogether, that will focus on demand management, behaviour change, improved commissioning, increasing income and creating new delivery structures such as social enterprises. They are intended to play their part in helping town halls find new savings and revenues, allowing them to maintain spending on frontline services wherever possible. Funding is being made available for each pilot by the LGA, with this figure being match-funded by each council involved. (26 July 2012)

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

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DfE: Consultation on the proposed decision on the calculation and recovery arrangements for the Academies Funding Transfer for 2011-12 and 2012-13 - Government response: sets out the Government's response to the December 2011 consultation on the calculation and recovery arrangements for the Academies Funding Transfer for 2011-12 and 2012-13. It states that DfE will refund any local authority where the amount deducted in 2012-13 or 2011-12 was greater than it would have been had the deduction been based on the number of pupils in Academies during that financial year. The Annex sets out how the refund wil be calculated. (17 July 2012)

DfE: Academy funding: DfE has issued updated guidance on how maintained schools converting to academy status will be funded. It also sets out the principles of academies' funding and how it is calculated. (18 July 2012)

DfE: Academies to have same freedom as Free Schools over teachers: announces changes to the model funding agreement to be used by schools in their conversion to Academy status, giving head teachers in mainstream and alternative provision academies greater freedom over the teachers they employ. The funding agreement for between the Secretary of State and the academy trust will now state that academies can employ teaching staff who they believe to be suitably qualified, without the automatic requirement for them to have Qualified Teacher Status (QTS). Existing academies can request for their funding agreements to be changed to include this new freedom if they wish. (27 July 2012)

School Premises (England) Regulations 2012 (SI 2012/1943): these regulations, which come into force on 31 October 2012, set the standards for school premises at maintained schools in England. They reduce and simplify the requirements on schools so as to reduce bureaucracy while ensuring that school buildings remain safe and suitable for children to be educated in. They replace the requirements in SI 1999/2 for schools in England; however, the 1999 regulations continue to apply in Wales. (30 July 2012)
There is also new non-statutory guidance for local authorities, school leaders and governing bodies on Standards for School Premises

Education (Information About Individual Pupils) (England) (Amendment) Regulations 2012 (SI 2012/1919): these regulations, which come into force on 1 January 2013, amend SI 2006/2601 so as to require the collection of information, in both the School Census and Pupil Referral Unit Census, indicating which pupils aged 16 to 19 have been awarded a bursary during the academic year of the collections. (30 July 2012)

DfE: School funding reform - Final arrangements for 2013-14: confirms the final arrangements for the local school funding system for 2013-14 and the new approach to high needs funding, in light of responses to the March consultation School Funding Reform: Next steps towards a fairer system. DfE has also  issued revised operational guidance to local authorities on how the funding system will operate. (31 July 2012)

DfE: Youth Contract provision for 16- and 17-year-olds not in education, employment or training: gives details of Youth Contract  funding to support disengaged 16- to 17-year-olds to move into education, training or employment with training, to support the rise in the participation age to 17 in 2013 and 18 in 2015. The programme focuses on young people who are not in education, employment or training (NEET), have low levels of attainment and a range of factors that put them at greater risk of long-term disengagement. DfE states that local authorities have a statutory duty to support young people to participate and will have a key role in helping to deliver this programme, working with providers to target those young people who most need support and ensure that this provision fits closely with the wider local offer. (8 August 2012)

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

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Equality and Discrimination

Home Office:  Equality Act 2010 - Banning age discrimination In services: an overview for service providers and customers: the Equality Act 2010 bans age discrimination in services from 1 October 2012. This guide provides an overview of how the ban will work. (26 July 2012)

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

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R (Lock) v Leicester City Council [2012] EWHC 2058 (Admin) (Admin Ct): L applied for judicial review of the local authority's decision to dismiss her from her post as Chief Executive and from her functions as head of paid service. Following the election of the city's first  directly-elected Mayor in 2011, the authority's Employees' Committee resolved to proceed with the new Mayor's proposals to abolish the role of Chief Executive and to restructure the senior management team, including making the role of Chief Executive redundant. The Committee wrote to L, purporting to give her four months' notice of redundancy; she appealed. The full Council then resolved to dismiss L's appeal against abolishing the post of Chief Executive, to approve her dismissal by reason of redundancy as a result of the deletion of the post of Chief Executive, and to appoint the deputy Chief Executive as temporary head of paid service pending the outcome of the senior management review. L contended that: her dismissal was unlawful; the authority had failed to comply with the Standing Orders Regulations 2001 (SI 2001/3384); and it had breached her rights under Art.6 and Art.8 ECHR.
The court held, dismissing the application, that there had been no material irregularity, unlawfulness, unfairness or irrationality in the decision to dismiss L as Chief Executive and as a person who was the designated head of paid service. The Employees' Committee was concerned only with the question whether the post of Chief Executive should be retained; however, the consequences that might flow from that were matters for the full Council not the Employees' Committee. The Committee was not tasked, as the agent of the local authority, with dismissing the claimant - that decision was for the full Council and it had complied with the 2001 Regulations. A clear distinction had to be be made between L's contractual position as Chief Executive and her statutory position as the designated head of paid service. The court was concerned with the public office (a matter of public law), not the contractual employment (private law) and so this case should be distinguished from R (Shoesmith) v Ofsted [2011] EWCA Civ 642 where S's role (Director of Children's Services) was a wholly statutory one. L was never "Head of Paid Service", she was the Chief Executive, but was also, as an officer of the Council, designated as head of their paid service. If she was dismissed as an officer of the local authority she inevitably lost her designated status. There was nothing that prevent L from continuing with her alternative private law remedy in the Employment Tribunal in respect of her loss of employment. (25 July 2012)

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

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HM Treasury: Introduction of the Certainty Rate discount on PWLB loans: HM Treasury has sent a letter to Chief Finance Officers announcing that the Government will introduce a 20 basis points discount on loans from the Public Works Loans Board (PWLB) under the prudential borrowing regime. This Certainty Rate discount will be available to local authorities from 1 November 2012. To receive the discount, local authorities must submit details of their long-term borrowing and debt financing plans and their capital expenditure programme by 17 September 2012. (2 August 2012)

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

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R (Buck) v Doncaster MBC [2012] EWHC 2293 (Admin) (Admin Ct): B applied for a declaration that the MBC's Mayor and Cabinet had acted unlawfully in refusing to implement a budget amendment agreed by the full Council with a two-thirds majority.
Following a review, the Mayor decided to restructure the delivery of library services in the borough, including closing two libraries and replacing employed staff in some libraries with volunteers or self service facilities. His draft Budget for 2012/13 included a proposed reduction in the Customer Services & ICT budget of £533,000, most of which was attributed to the changes to the library service. The full Council voted not to approve the Mayor's Budget but instead voted, with a two-thirds majority, to approve an amended Budget that included an amendment that would be sufficient to maintain the same library services that there had been in the past. The Mayor refused to accept the amendment and continued to implement his programme of restructuring the library services. B contended that the Mayor had acted unlawfully in going against the wishes of the full Council.
The court held, refusing the application, that the Mayor and his Executive Cabinet had not acted unlawfully and had exercised their functions properly and lawfully. The role of the full Council in the budget process was limited to the allocation of resources to meet the authority's potential expenditure for a future period, which enabled it to set an appropriate level of council tax. The full Council's budgetary function under s.31A(2)(a) of the Local Government Finance Act 1992 did not give the full Council any other decision-making powers; in particular, it did not give the full Council powers to interfere with the executive function of the Mayor and Cabinet, except where the Mayor proposed to exercise their function in a way that was "contrary to, or not wholly in accordance with… the authority's budget". The decision on the mode of delivery of library services was properly a decision of the Mayor and the Cabinet and they were exercising an executive function in making that decision. If the full Council purported by their amendment to direct the Mayor and Cabinet to spend money allocated in the budget in a specific way, then that amounted to an interference with their executive functions and was an unlawful interference by the full Council in the proper role of the Mayor and Cabinet. The Council's amendment was written in terms of a sum being allocated in the budget which was available to the Mayor to spend on library facilities, without going over the budget, and the Mayor treated it as a budget allocation and a contingency fund. The Mayor's decision not to spend the additional money allocated to library services by the amendment was not a departure decision and it did not fall within either para.2 or para.3 of Sch.4 to the Functions and Responsibilities Regulations 2000 as a decision which could only be taken by the full Council. It was a decision properly taken by the Mayor and Cabinet. (1 August 2012)

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

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Health and Social Care

DH: Consultation on Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy guidance: seeks views on a draft framework for NHS and local government to work together to undertake Joint Strategic Needs Assessments (JSNA) and Joint Health and Wellbeing Strategies (JHWS). The papers include a table showing the powers and duties of CCGs, local authorities, Health & Wellbeing Boards, Local Healthwatch and the NHS Commissioning Board that have been introduced by the HSC Act 2012 and that are relevant to JSNAs and JHWSs. The consultation closes on 28 September 2012. (31 July 2012)

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

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Human Rights

R (Reilly and Wilson) v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin) (Admin Ct): R and W applied for judicial review of two schemes made by the SoS under the Jobseeker's Allowance (Employment and Enterprise) Regulations 2011, namely the sector-based work academy scheme (SBWA) and the Community Action Programme (CAP). They contended that: (1) the regulations were ultra vires because they failed to prescribe a description of each scheme or the circumstances in which an individual could be required to participate in the scheme, as required by s.17A of the Jobseekers Act 1995; (2) R and W had not been given specific notice of various matters, including details of what was required by their personal participation in a particular scheme and the consequences of not participating; and (3) each scheme breached Art.4 ECHR in that it required the performance of "forced or compulsory labour".
The court held that (1) the regulations did comply with the 1995 Act and so were not ultra vires; (2) the SoS had fulfilled his duty of openness - the use of Jobcentre advisers and correspondence was an adequate way of dealing with the process of communication about the schemes, irrespective of whether other ways may have been better or more effective or whether, in any individual case, the process resulted in insufficient information being given; (3) the SBWA scheme and the CAP were a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Art.4. The ECHR was a living instrument, capable of development to meet modern conditions, and views might reasonably differ about the merits of a scheme that required individuals to "work for their benefits" as a means of assisting them back into the workplace. However, characterising such a scheme as involving or being analogous to "slavery" or "forced labour" was a long way from contemporary thinking. Research showed that schemes like the CAP could and did have a beneficial effect in relation to the obtaining of work by the long-term unemployed. It was no part of the court's function to evaluate that evidence or to comment on its validity; however, if valid, its existence would reinforce the view that a scheme like the CAP did not offend Art.4. (6 August 2012)
See also the DWP’s press release Judge rejects claims that work schemes are forced labour.

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

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Localism Act 2011

Localism Act 2011 (Commencement No. 7 and Transitional, Saving and Transitory Provisions) Order 2012 (SI 2012/2029 (C.80)): this Order brings certain provisions of the 2011 Act into force on 3 August 2012, namely: s.116, s.121 and Schs.9, 10, 11 & 12 (neighbourhood planning) and Sch.25 Part 23 (housing tenure). It also revokes art.12 of the 4th Commencement Order (SI 2012/628) which was a transitional provision relating to neighbourhood planning. (2 August 2012)

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

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Home Office: Candidate briefing - Working with others within your force area: this set of briefings helps Police and Crime Commissioner (PCC) candidates understand partnership structures, working and initiatives. They include tackling troubled families, and working with: probation boards; prisons; voluntary, community and social organisations; and the courts. (19 July 2012)

Home Office: Candidate briefing - Working beyond your force area: this set of briefings looks at the national context for the Police and Crime Commissioner (PCC). They cover the role of key government departments and relevant agencies, and some important strands of operational (public order and international police assistance) and administrative work. (2 August 2012)

LGA: 101 ways councils will be helping Police and Crime Commissioners: with 101 days to go until elections for commissioners are held on November 15, the LGA has pulled together a list of 101 ways in which local authorities will be helping new Police and Crime Commissioners protect the public and drive down crime. The list covers a range of local government services, such as trading standards, licensing, protecting children, planning, parking, and community safety. The LGA's PCC website is counting down the days to the 15 November elections with details each day of a different way in which councils can help PCCs. (6 August 2012)

Police and Crime Commissioner Elections Order 2012 (SI 2012/1917): this Order, which comes into force on 25 July 2012, sets out how elections for a Police and Crime Commissioner for police areas in England and Wales are to be conducted. (24 July 2012)
There is detailed guidance on the PCC elections on the Electoral Commission's website.

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

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LGA: Procurement pledge for local authorities: LGA has launched a Local Government Procurement Pledge to highlight the sector’s commitment to greater collaboration with business, SMEs and the voluntary sector, to help drive improvements and efficiencies in how councils procure goods and services. It aims to  ensure that the £62bn that councils spend each year on buying goods and services provides value for money and supports local economies. The Federation of Small Businesses, local authorities and a range of charities have offered their support to the Procurement Pledge. (26 July 2012)

Procurement law survey: against a backdrop of stringent European rules and decisions, the Government's austerity programme and pressure to support small and social enterprise, local authorities are finding the procurement landscape more challenging than ever. In an effort to make some sense of it all, Bevan Brittan LLP has teamed up with Local Government Lawyer to undertake a comprehensive survey of procurement lawyers and professionals.
The survey should take no more than 10 minutes to complete and covers the following topics:

  • engagement with suppliers pre-procurement 
  • social factors
  • social enterprises
  • new models for delivering services
  • challenges to procurement exercises
  • standstill letters
  • SMEs.

Click here to take the survey. The survey results and analysis will be published in the Autumn, but those that take part will receive an advance copy of the results.

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

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Shared Services

LGA: Services shared, costs spared?: this report into local authorities sharing services was commissioned by the LGA and produced by Drummond MacFarlane. It  quantifies the benefits and feasibility of joining forces to save money, with a detailed analysis of five high-profile shared service arrangements, such as back office functions like IT and legal, and frontline services like waste disposal and road maintenance. The key findings are in the summary report. There is also a new, Excel-based prototype evaluation tool that has been developed to help local authorities to understand and track the benefits of sharing front and back office services.  (9 August 2012)

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

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DCLG: Openness and transparency on personal interests - A guide for councillors: this guide gives basic practical information about how councillors should be open and transparent about their personal interests, and about how monitoring officers should approach their roles under the new standards arrangements introduced by the Localism Act 2011. It discusses what is a Disclosable Pecuniary Interest (DPI), registration of personal interests and how to apply for a dispensation. It includes a link to DCLG's illustrative Code. (2 August 2012)
The accompanying letter from Bob Neill to local authorities states that the DCLG's view is that the new legal requirements about DPIs apply to sitting councillors as well as to newly elected councillors.

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

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Bevan Brittan's Local Government Training Programme

Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act.

Forthcoming seminars include:

For 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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