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    Licensing
   Children's Services    Markets
   Community Rights    Officers
   Delivery of Services    Overview and Scrutiny
   Education    Parish Councils
   Energy Efficiency    Police
   Equality and Discrimination    Procurement
   Finance    Public Health
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme


Adult Social Services

DH: NICE to help drive standards in social care: announces that the role of the National Institute for Health and Clinical Excellence (NICE) is to expand to include social care, from April 2013. The DH has agreed an initial list of joint NHS/social care quality standard topics for NICE to start working on. Standards in autism and mental well-being of older people in residential care quality standards should be published in 2013/14 with other quality standards published later.  NICE is currently piloting two joint NHS/social care Quality Standards, covering the care of people with dementia and the health and well-being of looked after children and young people, which it aims to publish in April 2013. (28 September 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

DPM: £100m to expand early education and childcare: announces funding for local authorities to support new nurseries and childminders in getting established, as well as helping existing providers to create and provide additional places. (25 September 2012)

DfE: Social work practices – Report of the national evaluation: assesses the five social work practice (SWP) pilots that were commissioned by local authorities between December 2009 and May 2010 to provide services for looked after children and care leavers. The pilots were introduced to discover whether smaller independent social work-led organisations could improve the morale and retention of social workers and bring decision making closer to front-line practice. The evaluation analyses the advantages and disadvantages of the overall SWP concept, and the specific benefits (or otherwise) of the different models employed and any lessons for alternate models.  It also looks at the impact of SWP pilots on children, their carers and their families, and the impact of the SWP model on the children's social care workforce. (27 September 2012)

Welsh Government: £19 million boost for Flying Start: announces capital funding to support the development of the facilities and infrastructure needed to deliver the expansion of the Flying Start programme for families with children up to four years old in deprived communities. The funding will expand the programme to double the number of children benefitting through support for families, health visiting and childcare places. The funding is in addition to £55m over the next three years to support the expansion of Flying Start. (2 October 2012)

LGA: Evaluation of the National Youth Agency tailored support offer to local authorities - case studies report: presents 11 case-studies which highlight examples of the tailored consultancy support local authorities have received from the National Youth Agency to help with their youth offer. The NYA's Routes to Success programme enables local authorities to to apply for up to ten days of free support from an NYA associate who works as a consultant to help with: the redesign of young people’s services; effective commissioning; improving quality and cost effectiveness; and workforce development. (5 October 2012)

Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2012 (SI 2012/2488): s.7 of the Childcare Act 2006 places a duty on English local authorities to secure that free early years provision of a prescribed description is available for children of a prescribed description and who are under compulsory school age. Thee regulations, which come into force on 1 September 2013, prescribe those matters. (4 October 2012)

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

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Community Rights

DCLG: Community Right to Bid – Non-statutory advice note for local authorities: this advice note, which has non-statutory status, is aimed at helping local authorities to implement the Community Right to Bid scheme under Part 5 Chapter 3 of the Localism Act 2011 and the Assets of Community Value Regulations 2012. The scheme gives communities the opportunity to identify assets of community value and have them listed and, when they are put up for sale, more time to raise finance and prepare to bid for them. It requires local authorities to work with local communities to decide on asset listing, ensure asset owners understand the consequences of listing, enforce the moratorium period and take decisions as part of any appeals process. (4 October 2012)
See also our Alert: Community value - It's our asset and we'll bid if we want to.

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

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Delivery of Services

CBI: Open access: this report  shows how open public service markets can lead to an increase in quality, choice and value for money. The report identifies how to maintain high quality public services and achieve £22.6bn or more of taxpayer savings by further opening up public service delivery to independent providers. It highlights the challenge of making significant reductions in public spending to balance the budget by the end of 2016/17 and also takes into account the increasing pressure that changing demographics will put on services. Independent providers are already delivering many public services well, but in order to plan investment into new areas they need to know how markets will operate in the future. The report concludes that ploughing on regardless is not an option and urgent action is needed from the Government to deliver its Open Public Services strategy. (24 September 2012)

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

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DfE: Cash boost for disadvantaged school children: announces that the Pupil Premium is to increase to £900 per pupil next year; for 2012/13 it is £619. Schools receive extra cash through the premium for every child registered as eligible for free school meals at any point in the past six years and children in care who have been looked after for six months. Schools can use the Pupil Premium funding in innovative ways to boost results for the most disadvantaged pupils. They are held to account for their premium use by Ofsted through its inspections. In addition, there will be £50m funding for summer schools next year, providing up to two weeks' support for disadvantaged children. (24 September 2012)

DfE: Schools causing concern – Guidance for local authorities: this statutory guidance provides information on the legislative requirements for intervening in schools causing concern under Part 4 of, and Sch.6 to, the Education and Inspections Act 2006. Local authorities must have regard to this guidance when exercising their functions in respect of schools causing concern. (25 September 2012)

DfE: 16-19 Bursary Fund audit guidance and working papers 2012/13: updated guidance for local authorities on gaining assurance over 16-19 Bursary funding, focusing on the funding paid during 2012/13. The purpose of the proposed audit approach is to gain assurance that the provider has an appropriate system of controls in place to effectively administer 16-19 Bursary Fund payments to learners, thereby ensuring that these payments are made in accordance with requirements. (27 September 2012)

DfE: Developing music partnerships in schools – Benefits and pitfalls: this report highlights the reasons why too many schools are not making the most of partnership opportunities for music education, as well as showing some truly outstanding practice. It finds that most of the schools visited for the survey used partnerships to offer a greater range of music activities than the school could provide by itself. However, in too many cases these were not managed well and did not improve long-term outcomes for pupils. (5 October 2012)

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

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Energy Efficiency

DECC: Legal framework for Green Deal signals green light for industry: highlights that the legal framework for the Green Deal is now in force, enabling Green Deal providers, assessors and installers to start to become authorised, and display the Green Deal Quality Mark, and put in place their systems for delivering assessments to consumers. (2 October 2012)
Documents and guidance are available on the Green Deal Oversight & Registration Body's website.
Bevan Brittan have published a Green Deal Alert: Are you ready to deliver Green Deal and ECO? that discusses the key issues for any contracting authority considering the opportunities presented by Green Deal and the Energy Companies Obligation (ECO).

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

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Equality and Discrimination

Equality Act 2010 (Age Exceptions) Order 2012 (SI 2012/2466): the ban on age discrimination in the provision of services and public functions (and associations)came into force on 1 October 2012. The intention is to ensure that the ban prohibits only harmful discrimination and permits beneficial or neutral differentiation because of age. This Order, which comes into force on the same date as the ban, inserts a number of specific age-related exceptions into Sch.3 and Sch.16 to, and s.195 of, the 2010 Act so as to put beyond doubt that such activities will always be excepted from the age discrimination prohibition in respect of services, etc. (19 September 2012)

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

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DCLG: Technical reforms to Council Tax – Determining the circumstances in which dwellings should not be liable to the empty homes premium: the Local Government Finance Bill includes provisions that will allow a billing authority to charge an empty homes premium to provide a stronger incentive to get homes back into productive use and remove the blight of such properties on local neighbourhoods. This paper seeks views on proposals for exceptions to the Premium - dwellings which may otherwise be liable for the Premium, but which are subject to circumstances which mean that it would not be appropriate for it to apply. The consultation closes on 9 November 2012. (28 September 2012)

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

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Licensing Act 2003 (Forms and Notices) (Amendment) Regulations 2012 (SI 2012/2290): these regulations, which come into force on 1 October 2012 amend SI 2005/42 and SI 2005/2918 by replacing a number of forms as a consequence of amendments to the Licensing Act 2003 made by the Live Music Act 2012. (10 September 2012)

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

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Edwards & Walkden (Norfolk) Ltd v Mayor & Commalty of the City of London [2012] EWHC 2527 (Ch) (ChDiv): this case concerned the grant of new business tenancies to tenants of stalls, shops and offices at Smithfield Market under Part II of the Landlord and Tenant Act 1954. Most of the terms of the new leases were agreed, but the parties disagreed on whether the tenants were entitled to have their rents reduced on account of income received by the City from other parts of the Market used for non-market purpose; and on whether there should be a basic rent set together with a service charge to reflect the actual running costs of the Market, or a simple rent with no service charge.
The court held that the tenants were not entitled to have their rents under the new tenancies reduced on account of income received by the City from letting any of the commercial offices or from the car park. The City was obliged by s.9 of the Metropolitan Meat and Pulrty Market Act 1860 to use its income from the letting of the relevant part of the commercial premises, after deducting expenses, for the purposes of supporting the maintenance and operations of the Market. If the City used the rental income from the commercial offices for other purposes, it would no longer be using the land for the purposes set out in s.9, as required by s.8 so its continuing compliance with its obligations under s.8 depended upon it continuing to put the relevant property and income derived from it to use for the Market purposes specified in s.9. There was no limitation in the 1860 Act as to which market purposes the income from the commercial offices and the car park should be spent on. It was open to the City to choose to spend that income on market purposes which were unrelated to the direct provision of services to tenants under the new tenancies. There was no reason why the existence of the obligations under the 1860 Act would be taken to be a matter causing a lower rent to be agreed by a notional willing landlord and a notional willing tenant for the purposes of setting rent under s.34 of the 1954 Act. The rents to be set under the new tenancies under the 1954 Act were to be exclusive rents with the tenants' contribution to services covered by a separate service charge. (12 September 2012)

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

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HC Public Accounts Committee: Off-payroll arrangements in the public sector: this report examines the use of personal service companies in the public sector. it follows on from HM Treasury's May 2012 report on the use of off-payroll arrangements in central government, which showed that over 2,400 staff, each earning more than £58,200 pa, were being paid ‘off-payroll’. The Committee extended its inquiry to other public services, such as local government, the NHS and the BBC. It concludes that the public sector must itself maintain the highest standards of propriety in its employment practices if it is to show leadership in the fight against tax avoidance. It must avoid the practice of using off-payroll arrangements for staff who should be on the payroll – a practice which generates suspicions of complicity in tax avoidance and which fails to meet the standards expected of public officials. It states that those whose income is derived from monies raised through taxation have a particular obligation to make sure that they do not use tax avoidance schemes. (5 October 2012)

English Heritage: A fourth report on local authority staff resources: this report compares the levels of historic environment staff resources in local authorities in the early months of 2012 with those available since 2003.The figures show an overall reduction of over 25% since 2006 of historic environment specialists providing expert advice to English local authorities. (5 October 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

Welsh Government: The Local Authority (Joint Overview and Scrutiny Committees) (Wales) Regulations 2012, statutory guidance on Joint Overview and Scrutiny Committees and statutory guidance on Annual Reports: seeks views on draft Regulations made under s.58 of the Local Government Measure 2011 that will permit two or more Welsh local authorities to appoint a joint Overview and Scrutiny Committee to make report or recommendations to any of the authorities or their executive about matter affecting their areas. It also seeks views on draft statutory guidance to local authorities when appointing an overview and scrutiny committee and to the joint committee when it is exercising its functions, plus guidance to local authorities when making arrangements for elected members to publish an annual report. The consultation closes on 21 December 2012. (1 October 2012)

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

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Parish Councils

NALC: What next for localism?: the NALC has launched an inquiry into the success of government efforts to give more power to local communities, focusing on the role played by town and parish councils in promoting local decision making. The inquiry aims to offer analysis, insight and advice to the All Party Parliamentary Group on local democracy, to NALC and local councils themselves, as well as to the Government, on where localism needs to go next. This booklet is intended to start that debate with a series of essays from parliamentarians, thinktanks and others sharing their ideas and thinking. (24 September 2012)

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

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DH: Information sharing to tackle violence – Guidance for Community Safety Partnerships on engaging with the NHS: highlights how Community Safety Partnerships made up of local authorities, the Police and other local agencies can reduce violence in their community by encouraging A&E departments to collect and share information on time, type and location of assault. It also supports CSP partners to understand better ways of engaging with their health partners at a local level. (21 September 2012) 

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

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DfT: West Coast Main Line franchise competition cancelled: announces that the procurement competition to run trains on the West Coast Main Line has been cancelled following the discovery of significant technical flaws in the way the franchise process was conducted. This means that DfT will no longer be awarding a franchise contract to run the West Coast service when the current franchise expires on 9 December 2012 and it is consequently no longer contesting Virgin Trains’ judicial review. The flaws uncovered relate to the way the procurement was conducted by department officials and DfT has since announced that three civil servants involved in the procurement have been suspended. (3 October 2012) 
Bevan Brittan LLP has issued an Alert: Procurement – evaluation processes off the rails that highlights the impact of this decision for contracting authorities’ procurement processes.

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

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Public Health

DH: Local public health intelligence factsheets: set out the health intelligence requirements for local authorities and the actions that local areas may wish to take to support their new public health duties from an information and intelligence perspective. (28 September 2012)

LGA: Establishing local Healthwatch: the LGA have published a series of briefings to assist local authorities and their partners in local communities and the NHS to support the commissioning, setting up and early development of local Healthwatch. The topics covered include: the local authority role; commissioning and development; working with health and wellbeing boards; governance; and advice, information and signposting. (2 October 2012)

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

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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:

  • 17 October 2012 (London): Green Deal and ECO
  • 7 November 2012 (Bristol): Procurement Update
  • 15 November 2012 (Birmingham): Community Right to Challenge
  • 21 November 2012 (London): Procurement Update
  • 28 November 2012 (Birmnigham): Procurement Update

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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