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    Education
   Adult Social Services    Employment
   Children's Services    Finance
   Community Rights    Police
   Economic Development   Regulatory Services 
   Localism Act 2011 Commencement Table 
   Bevan Brittan's Local Government Training Programme


Access to Information

DCLG: Open access to local data: this website has been set up by DCLG as the first step towards more open, accessible and re-usable data. It provides a selection of statistics on 63 datasets, divided into five themes: housing, finance, deprivation, wellbeing and geographical data.  (15 October 2012)

Draft Contracting Out (Local Authorities Social Services Functions) (England) (Amendment) Order 2012: this draft Order, which (once finalised) comes into force on 13 December 2012, amends SI 2011/1568 so as to allow local authorities to contract adult social services functions for the purposes of two types of pilot schemes (adult social work practice pilot schemes and right to control pilot schemes) beyond the period permitted under the 2011 Order. (16 October 2012)

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

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Adult Social Services

R (Sunderland City Council) v South Tyneside Council; SF and Leeds City Council (interested Parties) [2012] EWCA Civ 1232 (CA): S City Council appealed against the decision that it was responsible under s.117 of the Mental Health Act 1983 for the aftercare of SF, after she was discharged from the hospital where she had been detained. SF had been placed on a course at a college in S City Council's area and resided at a hall of residence in that area. After she attempted to commit suicide, she was moved, with her consent, to a hospital in ST Council's area; the college then terminated her placement and her licence to live at the hall of residence. SF was then detained at the hospital under s.3 of the 1983 Act. The judge ruled that SF was resident at the hall of residence and that, although she was admitted to hospital voluntarily, this did not amount to her becoming resident there. S City Council appealed, contending that the judge had erred in applying a test of "ordinary residence" derived from R (Shah) v Barnet LBC [1983] 2 AC 309 as that was concerned with ordinary residence under the Education Act 1962.
The court held, allowing the appeal, that the test set out in Shah was not a helpful guide to the meaning of "is resident" in s.117(3), because the circumstances to which the test of ordinary residence was to be applied under the Education Act 1962 were so very different from those in which s.117(3) had to be considered. A more helpful and relevant test was Lord Slynn's statement in Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, that the prima facie meaning of normal residence was a place where at the relevant time the person in fact resided, and it was not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as the person voluntarily accepted the place where they ate and slept, the reason why they were there rather than somewhere else did not prevent that place from being their normal residence. Once the college had terminated her placement, there was no place available which could be regarded as where SF was "resident" other than the hospital. ST Council was therefore the responsible local social services authority under s.117(3). (9 October 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

Welsh Government: Should the Welsh Government apply the ‘Articles’ in the United Nations Convention on the Rights of the Child (UNCRC) to young people aged 18-24 yrs?: the Rights of Children and Young Persons (Wales) Measure 2011 places a duty on Welsh Ministers to have to consider the rights and responsibilities within the UNCRC and its optional protocols. This consultation seeks views on whether these rights and protocols should apply to people aged 18-24. The consultation closes on 28 December 2012.  (8 October 2012)

Ofsted: Childcare – Requirements for the Childcare Register: Childminders and home childcarers: this factsheet describes the requirements set out in regulations for both parts of the Childcare Register (compulsory and voluntary). If providers choose to be included on either part of the register they must meet these requirements at all times when providing childcare. (9 October 2012)

Ofsted: Childcare – Requirements for the Childcare Register: Childcare providers on non-domestic or domestic premises: this factsheet describes the requirements set out in regulations for both parts of the Childcare Register (compulsory and voluntary). If providers choose to be included on either part of the register they must meet these requirements at all times when providing childcare. (9 October 2012)

Ofsted: The impact of virtual schools on the educational progress of looked after children: this report examines the impact of virtual schools established by local authorities to support and improve the educational achievement of looked after children. The report draws on evidence from cases and from the views of carers, children and young people, professionals, and representatives from schools, colleges and the voluntary sector in nine local authorities. (11 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: New 'Community Shares' to boost local services: the Communities Minister has launched a new Community Shares Unit to help local people claim a stake and become part owners of local assets and services. The new unit, which is run by Co-operatives UK and Locality , will enable more local enterprises to use share offers as a way of raising finance, in particular risk capital, to purchase buildings or get new projects up and running. Investors may also benefit from dividend payments that can be paid in money or in kind, e.g. cheaper energy, cut-price pints or local, fairly-priced food. (5 October 2012)

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

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Economic Development

Growth and Infrastructure Bill: this Bill has been introduced into the Commons and received its 1st reading. The Bill sets out a comprehensive series of practical reforms to reduce confusing and overlapping red tape that delays and discourages business investment, new infrastructure and job creation, including:

  • preventing unexpected hikes in business rates on local firms over the next five years;
  • allowing the reconsideration of economically unviable 'Section 106' agreements;
  • helping remove red tape which hinders superfast broadband being rolled out to local homes and businesses;
  • stopping misuse of town and village green applications to undermine planned development, whilst protecting its use to safeguard cherished community spaces and ensure the protection of genuine town and village greens;
  • implementing the recommendations from the 'Penfold' review to remove other over-lapping development consent regimes;
  • speeding up the planning system for large scale business and commercial projects; and
  • allowing existing energy project consents to be varied and releasing £160m in new gas infrastructure.

The Bill's progress can be followed on the Parliament Bills web page. See also the Background notes. (18 October 2012)

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

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Education (Educational Provision for Improving Behaviour) (Amendment) Regulations 2012 (SI 2012/2532): these regulations, which come into force on 1 January 2013, amend SI 2010/1156 regarding the exercise of the powers of governing bodies of maintained schools, to require pupils to attend offsite provision under s.29A(1) of the Education Act 2002. The amendments relate to the continuation of offsite provision beyond the academic year in which the requirement was imposed, and to the governing body's duty to hold review meetings. (11 October 2012)

Ofsted: School inspection policies and protocols: Ofsted has updated its policies and protocols following the introduction of new arrangements for inspecting schools from the beginning of September 2012. Thsi webpage links to the updated documents. (11 October 2012)

Further Education Institutions (Exemption from Inspection) (England) Regulations 2012 (SI 2012/2576): these regulations, which come into force on 5 November 2012, prescribe that FE institutions falling within s.91(3) of the Further and Higher Education Act 1992 and 16 to 19 Academies are exempt from routine inspection by HM Chief Inspector of Education, Children’s Services and Skills under Part 8  Chapter 3 of the Education and Inspection Act 2006 where the institution’s overall effectiveness has been awarded the highest grade in its most recent inspection under s.125 of the 2006 Act. (15 October 2012)

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

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Renfrewshire Council v The Educational Institute of Scotland (Transfer of Undertakings: Consultation and other information) [2012] UKEAT 0018_12_0410 (EAT): this case considered whether a local authority's education department could be an establishment for the purposes of collective consultation under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Council appealed against the Employment Judge's decision that the establishment at which the claimant teachers worked, for the purposes of s.188, was the Council's Education and Leisure Service. The Council argued that the relevant establishment was the individual school at which each worked, so there was no right to collective consultation.
The EAT held, allowing the Council's appeal and remitting the case to the tribunal for further consideration, that the judge's decision was flawed. This case concerned a number of individuals, yet had been approached at a level of generality that did not address the particular circumstances of those employees. The central question was employee, not employer focused, namely: to which unit the worker was assigned to perform his duties. That involved two central questions – was the postulated unit capable of being an establishment; and if so, was the employee assigned to it? The nature of the Education and Leisure Service was unclear – whether this could sensibly meet the definition of unit, or whether it represented an organisational abstraction; and indeed, whether there was a proper case that the unit was the Council. (4 October 2012)

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

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HM Treasury: Third year of council tax freeze announced: the Chancellor has announced that the Government is to set aside an extra £450m to help freeze council tax bills in England. Local authorities, police and fire authorities who decide to freeze or reduce their council tax will stand to receive £225m of grant funding in both financial years 2013-14 and 2014-15, equivalent to raising their 2012-13 council tax by 1%. In addition, in 2013-14 the Government is propose to lower the local authority tax referendum threshold to 2% so that local peopling would be able to require a referendum vetoing any proposed increase above this threshold. The Secretary of State will set out further details on this alongside the provisional Local Government Finance Settlement in December. (8 October 2012) 

LGA: £700 million now recovered from failed Iceland banks: reports that local authorities have retrieved a further £25m of taxpayers' money from failed Icelandic bank Landsbanki, courtesy of their hard-fought priority creditor status. The third instalment of money means local authorities have now recovered around half of the £416m in funds held with the bank when it collapsed in October 2008. Local authorities are expecting the return of all of the money held with the bank after the LGA, working on behalf of the sector, and their legal representatives Bevan Brittan LLP coordinated legal action to ensure local authority depositors retained priority creditor status. This status means that local authorities will be among the first paid out by the bank's winding up board. In all, local authorities have now recovered more than £700m of the £1.04bn held with the four Icelandic banks which failed when the global financial crisis hit. More is expected in coming months. (9 October 2012)

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

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Police and Crime Commissioner Elections (Local Returning Officers’ and Police Area Returning Officers’ Charges) Order 2012 (SI 2012/2378): these regulations, which came into force on 13 September 2012, provide for payments for local returning officers' and police area returning officers' services and expenses in connection with the election of police and crime commissioners to be held on 15 November 2012. (12 September 2012)

Police and Crime Panels (Modification of Functions) Regulations 2012 (SI 2012/2504): these regulations, which came into force on 3 October 2012, modify Sch.6 to the Police and Social Responsibility Act 2011 governing the arrangements for the formation and maintenance of Police and Crime Panels that scrutinise the actions and decisions of the Police and Crime Commissioner. The modifications provide that where a relevant local authority has failed to exercise its powers to nominate or appoint panel members, the panel arrangements must be agreed by the other relevant local authorities, but not the defaulting local authority. (2 October 2012)

Elected Local Policing Bodies (Specified Information) (Amendment) Order 2012 (SI 2012/2479): this Order, which comes into force on 22 November 2012, makes minor amendments to SI 2011/3050 regarding the information that Police and Crime Commissioners and the Mayor’s Office for Policing and Crime must publish. (2 October 2012)

Police and Crime Commissioner Elections (Declaration of Acceptance of Office) Order 2012 (SI 2012/2553): this Order, which comes into force on 15 November 2012, prescribes the form of words that the newly elected Police and Crime Commissioners will be required to declare before they take office, following the elections on 15 November 2012. (10 October 2012)

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

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Regulatory Services

DH: Change to no-smoking signs regulations: draws attention to the Smoke-free (Signs) Regulations 2012 (SI 2012/1536) that simplify the duty to display no-smoking signs in smoke-free premises and vehicles in England. From 1 October 2012, at least one legible no-smoking sign must still be displayed but owners and managers are now free to decide the size, design and location of the sign(s). No action is needed for anyone who is already complying with the current regulations, but the new regulations give owners and managers the freedom to move, change or remove multiple signs. (8 October 2012)
See also the Chartered Institute of Environmental Health's Supplementary guidance for local authority regulatory officers and businesses about the use of no-smoking signs from 1 October 2012.

Home Office: Protection of Freedoms Act 2012 – Changes to provisions under the Regulation of Investigatory Powers Act 2000 (RIPA): Home Office guidance to local authorities in England and Wales: from 1 November 2012 local authorities are required to obtain judicial approval prior to using covert techniques. Local authority authorisations and notices under the Regulation of Investigatory Powers Act 2000 (RIPA) will only be given effect once an order has been granted by a JP in England and Wales, a sheriff in Scotland and a district judge (magistrates' courts) in Northern Ireland. Additionally, from this date local authority use of directed surveillance under RIPA will be limited to the investigation of crimes which attract a six month or more custodial sentence, with the exception of offences relating to the underage sale of alcohol and tobacco. This guidance advises on how local authority investigation teams can best approach these changes in law and the new arrangements that need to be put in place to implement them effectively. It is supplementary to the legislation and to the statutory Codes of Practice. It will also be of use to authorising officers and designated persons and to those who oversee the use of investigatory techniques in local authorities including elected members. (9 October 2012)

Protection of Freedoms Act 2012 (Commencement No.1) (Wales) Order 2012 (SI 2012/2499 (W.274) (C.98)): this Order brings s.56 of, and Sch.4 to, the Protection of Freedoms Act 2012 into force in Wales on 1 October 2012. These provisions relate to the recovery of unpaid parking charges in respect of the parking of a vehicle on relevant land in Wales. The provisions were brought into force in England on 1 October by SI 2012/2075. (1 October 2012)

Late Night Levy (Expenses, Exemptions and Reductions) Regulations 2012 (SI 2012/2550): Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011 enables a licensing authority in England and Wales to introduce a late night levy in its area if it considers it desirable to raise revenue in relation to the costs of policing crime and disorder connected to the supply of alcohol in that area between midnight and 6am. These regulations, which come into force on 31 October 2012, prescribe matters relating to the expenses that a licensing authority may deduct from its levy receipts, and the categories of holders of premises licences or club premises certificates which the authority may exempt from, or afford a reduction to, their liability to pay the levy. (9 October 2012)

Licensing Act 2003 (Early Morning Alcohol Restriction Orders) Regulations 2012 (SI 2012/2551): ss.172A – 172E of the Licensing Act 2003 enable a licensing authority to make an early morning alcohol restriction order (EMRO) in its area, prohibiting the supply of alcohol subject to prescribed exceptions. These regulations, which comes into force on 31 October 2012, prescribe the requirements and forms in relation to the process which a licensing authority, and other persons, must follow to make, vary or revoke an EMRO. (9 October 2012)

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

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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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