16/11/2012
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
Welsh Government: Approach to the development of a national outcomes framework for Social Services in Wales: seeks views on the Welsh Government’s approach to developing a National Outcomes Framework for Social Services in Wales. It describes a high level framework and plans to populate it for the social care sector over the next three years, with a structure to describe and measure the well-being of people who need care and support. The consultation closes on 4 February 2013. (12 November 2012)
DBIS: Care homes sector – enforcement of regulation: BIS is consulting with the adult care homes sector on how the enforcement of regulation can be improved. The Focus on Enforcement consultation is part of an initiative to drive up standards and enable providers to achieve the highest standards of care, while removing confusing bureaucratic requirements that divert carers from meeting the needs of residents. It focuses on the way regulation is delivered and compliance is achieved. The closing date for comments is 18 December 2012. (6 November 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Children's Services
DfE: Draft legislation on adoption – Early permanence through ‘Fostering for Adoption’ and matching for adoption: the DfE has laid draft clauses before Parliament for pre-legislative scrutiny by the Select Committee on Adoption Legislation. The draft clauses:
- place a duty on local authorities to give preference to a “Fostering for Adoption” placement; and
- remove the express duty on adoption agencies to give due consideration to religious persuasion, racial origin and cultural and linguistic background, when matching children with prospective adopters. This change reinforces the existing emphasis on the welfare of the child and the impact of any delay.
(8 November 2012)
DfE: The Edlington case: A review by Lord Carlile of Berriew CBE QC: this is the final report of the review that was commissioned by the Secretary of State in March 2012 regarding a serious assault by two young brothers on two young children. At the time of the assaults, Doncaster MBC was failing to perform adequately its statutory functions for children, and was characterised by poor performance at senior management levels, a demoralised social work profession with unacceptable churn of staff, and inadequate communications between agencies. The Serious Case Review found that local agencies had failed, over a period of years, to achieve better outcomes for the perpetraors and had therefore failed to prevent the assaults. This report concludes that, whilst there is a considerable way to go before Doncaster MBC can be comparable with the best performing local authorities, there can be reasonable measure of optimism and a sense of achievable ambition. However, it finds that there remain weaknesses, which were highlighted by an Ofsted report in October 2012 that was severely critical of the arrangements in Doncaster for the protection of children. Lord Berriew's review of the Edlington Case also explores a number of related issues of wider relevance for local authorities and for national policy. (16 November 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Economic Development
DCLG: Growth and Infrastructure Bill – Impact assessment: provides a cost benefit analysis of the provisions in the Growth and Infrastructure Bill, which received its 2nd Reading in the Commons on 5 November. It sets out the policy context for the Bill and, for each clause, explains the problem for consideration, the rationale behind intervention and the likely impact. (12 November 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Equality and Discrimination
R (South West Care Homes Ltd) v Devon CC [2012] EWHC 2967 (Admin) (Admin Ct): SWCH applied for judicial review of the Council's decision setting the fee rates in respect of persons placed in private care homes for the financial year 2012-13. SWCH contended that those fees provided for an effective nil rate of return on capital which meant that some of the homes would no longer be financially viable, resulting in unplanned closures and deteriorating conditions and quality of care. The council's Equality Impact Assessment (EIA) identified only one adverse discriminatory impact on the aged or the disabled, namely the need to relocate if homes failed, and no mitigation measures were identified in respect of the impact of such relocation. The Fee Structure Proposal report identified some 25 homes as being at risk of closure but the EIA was not reconsidered or amended in the light of that report. SWCH claimed that in reaching its decision, the Council failed to comply with its Public Sector Equality Duty under s.149 of the Equality Act 2010 and failed to consult lawfully, and that the decison was irrational. The council submitted that it had given sufficient regard to impact on elderly and disabled residents. The Fee Structure Proposal report merely put a figure on the homes which were at risk of closure, a risk which in general terms had already been considered in the EIA. Its exercise did not involve the assessment of needs or the cutting of services or curtailment of choice but merely the calculation of cost.The court held, granting the application and quashing the decision, that the Council's approach failed to have due regard to the need to eliminate discrimination and to promote equality of opportunity amongst elderly or disabled residents. In carrying out its exercise, the Council had failed to ask itself what it could do in respect of those needs. Even if most, if not all, homes identified in the Fee Structure Proposal report as at risk of closure would close in any event, there was no proper consideration of mitigation measures or proper management of such closures in setting the fees. Having regard to the procedure adopted in the case of the structured closure of one home was not a sufficient regard to deal with this identified risk; nor was there any proper consideration of the staff costs of engaging and interacting with those residents suffering from dementia. The consultation process was a fair one which gave a sufficient opportunity for a meaningful response and the decision was not irrational. (7 November 2012)
EHRC: Reasonable adjustments for disabled pupils: schools and education authorities have a duty to provide reasonable adjustments for disabled pupils under the Equality Act 2010. From 1 September 2012 this has been extended to include a duty to provide auxiliary aids and services for disabled pupils. This guide explains how the requirement to include auxiliary aids and services in the reasonable adjustments duty will work in schools and education authorities. It focuses on the practical implementation of the reasonable adjustments duty and includes case studies showing how the duty can be applied in contexts which will be familiar to teachers. (31 October 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Finance and Rating
DCLG: Written statement – Business rates: the Parliamentary Under Secretary for Communities & Local Govenrment, Brandon Lewis, has explained the rationale for the Government's decision to postpone the 2015 business rates revaluation to 2017. (12 November 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Fraud
Audit Commission: Protecting the public purse 2012 – Fighting fraud against local government: this report gives the results of the Audit Commission's annual survey of English councils. It says that councils are targeting their investigative resources more efficiently and effectively, detecting more than 124,000 cases of fraud in 2011/12 totalling £179m; but despite these detection rates, more can still be done. It urges councils not to drop their guard, as new frauds are emerging in areas such as business rates, Right to Buy housing discounts and schools. The National Fraud Authority (NFA) estimates that the total amount of fraud in the UK costs every adult in the country about £1,460 a year. Fraud targeting just local government exceeds £2.2bn per year. (8 November 2012)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Health
NHS Confederation: Operating principles for Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies: the Health and Social Care Act 2012 establishes Health and Wellbeing Boards (HWBs) as committees in upper-tier local authorities. It gives duties to HWB members – both the local authority and each of its partner CCGs – to develop Joint Strategic Needs Assessments (JSNAs) and Joint Health and Wellbeing Strategies (JHWSs). This paper by the NHS Confederation provides additional support to the statutory guidance to outline the duties and powers relating to JSNAs and JHWSs, which is due to be published before the end of 2012. (9 November 2012)
NHS Confederation: Resources for Health and Wellbeing Boards: the NHS Confederation has been working with each Health and Wellbeing Board learning set in collaboration with the NHS Institute for Innovation and Improvement, DH and the LGA to produce publications which summarise their key points of learning and which will be shared with other shadow Health and Wellbeing Boards. This web page links to the various publications. (9 November 2012)
DH: Public health functions to be exercised by the NHS Commissioning Board: the NHS CB and the DH have published their detailed agreement showing how the NHS CB will drive improvements in the health of England’s population through its commissioning of certain public health services. The agreement sets out the outcomes to be achieved in exercising these public health functions and provides ring fenced funding for the NHS CB to commission public health services. (15 November 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Health and Safety
HSE: Local government FAQs: these FAQs help illustrate the nature of some of the issues that HSE routinely gives advice on regarding local authorities' health and safety duties: (16 November 2012)If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Local Government Pension Scheme
DCLG: Local Government Pension Scheme – Investment in partnerships: seeks views on proposals to relax the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2009 so as to allow local authorities to double the amount they can legally invest from their pension funds directly into key infrastructure projects in a new and more efficient way that ensures long-term value for the taxpayer. The options for change are:
- increase the limit on investments in partnerships from 15% of a local authority pension fund to 30%;
- create a new investment class for investment in infrastructure
(including via limited liability partnerships), with an appropriate
investment limit of 15% of an overall fund.
The consultation closes on 18 December 2012. (6 November 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Officers
DCLG: Eric Pickles acts to limit Town Hall chiefs' golden goodbyes: announces that the Government plans to amend the Local Government (Standing Orders) (England) Regulations 2001 so as to remove the requirement to appoint an independent person to investigate proposals for disciplinary action against the Chief Executive, Monitoring Officer or Chief Finance Officer because of misconduct, disciplinary issues or poor performance. The Communities Secretary also intends to toughen up the guidance on local remuneration arrangements before councils publish their pay policies for next year. The DCLG will consult on these changes shortly. (9 November 2012)If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Powers and Duties
Charles Terence Estates Ltd v Cornwall Council [2012] EWCA
Civ 1439 (CA): C Council's predecessors, R and P, had entered
into arrangements with CTE whereby CTE purchased properties
and then leased them back to R and P for subletting to housing
tenants, including vulnerable people in priority need, in order for
R and P to comply with their statutory duty to secure accommodation
for homeless persons in priority need. R and P entered into these
arrangements using their power to acquire land under s.17 of
the Housing Act 1985. In 2009, C Council became a new
unitary authority and took over R's and P's rights
and liabilities. It reviewed the CTE arrangements and in July 2010
it stopped paying rent, although it continued to occupy and use the
properties to house vulnerable people. CTE brought proceedings for
recovery of unpaid rents. C Council contended that R and P had
breached fiduciary duties owed to their council taxpayers with the
result that the leases were ultra vires and void. The judge held
that C Council had breached its fiduciary duty by failing
to have regard to market rents when agreeing the terms of leases
with CTE and that, as a result of that failure, C Council had
acted ultra vires and the leases were void. CTE appealed.
The court held, allowing the appeal, that the judge was wrong
to find that the leases were void because of a failure to have
regard to market rents. The court rejected C Council's
attempts to present the case as one of "pure" ultra vires
which depended upon reading the words "at a reasonable price" into
s.17(1)(b) of the Housing Act 1985 – there was no evidence for
the conclusion that the rents were not "a reasonable price";
furthermore, it was rarely appropriate to read into a
statutory power a limitation defined by something such as a
"reasonable price". There were circumstances in which a public
authority could successfully invoke its own public law error as a
defence to a private law claim, but this was not a case of "pure"
ultra vires - P and R were doing what they were
empowered to do by s.17(1)(b) in order to meet their onerous
statutory duties. It was highly undesirable if, years after time
expired for the making of a prompt public law challenge, the fact
of an historic breach of fiduciary duty should inevitably lead to
the defeat of a private law claim brought by a party who acted
throughout in good faith. C Council had not established breaches of
fiduciary duty and even if they had, the breaches would not sustain
a defence to CTE's claim. The conclusion that C Council's
position in relation to the properties was merely one of tenancies
at will had scant regard to the temporal / periodic payment of
rent. (13 November 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Tortious Liability
Richards v Bromley LBC [2012] EWCA Civ 1476 (CA): R
appealed against the dismissal of her claim against
the local authority for damages for personal injuries
that she had suffered as a result of an accident at school when she
was aged 15. R suffered an injury to her heel that
required five stitches as she was exiting a school
building through swing doors that had an automatic closing
mechanism. The doors had been in place for about 30 years
and R had safely used them many times before. There had
been no previously recorded incidents of anyone being injured;
however, one pupil had suffered a minor injury to her heel when
using the doors four months before R's accident. R contended
that by reason of the earlier incident, her injury was
reasonably foreseeable and that the local authority
had failed to take such steps as were reasonable in order
either to eliminate or to reduce the risk of it occurring.
The court held, dismissing her appeal, that the earlier injury had
only a superficial similarity to that which happened to R and did
not render reasonably foreseeable R's more serious and very
different laceration injury. The trivial nature of the earlier
incident and the risk which it brought to light, seen in the
context of 30 years' safe use of the doors by thousands of
children and staff, rendered reasonable both the nature of the
remedial action which the school authorities proposed to take and
the timescale within which they proposed to do it. R had the
judges' sympathy; however, sympathy was an insufficient basis on
which to subvert the law of tort and it needed to be
understood that not every misfortune occurring on school premises
attracted compensation. (16 November 2012)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Wales
National Assembly for Wales (Official Languages) Act 2012: this Act has received Royal Assent and comes into force in Wales on 13 November 2012. It confers equal status on the Welsh and English languages in the proceedings of the Assembly. The Act first is the first legislation passed under the National Assembly’s new Assembly Act powers in Part 4 of the Government of Wales Act 2006. (12 November 2012)
R (Long) v Welsh Ministers; Monmouthshire County Council
and Optimisation Developments Ltd (Interested Parties) [2012] EWHC
3131 (Admin) (Admin Ct): L applied for judicial review
of the Welsh Ministers' decision to repeal s.28 of the
Abergavenny Improvement Act of 1854 that required the Council to
hold a livestock market within the town of Abergavenny on
designated land in the current town centre. In July 2005, the
Council entered into an agreement with the former market operator
AMAL, whereby AMAL would relinquish the use of the existing
livestock market and the Council would provide a new livestock
market some ten miles away. L, who was the founding member of a
group that opposed the loss of the livestock market in Abergavenny,
contended that the Welsh Ministers had misdirected themselves in
determining that s.28 of the 1854 Act was "spent, obsolete,
unnecessary or substantially superseded" within s.58(2)(d) of
the Local Government (Wales) Act 1994.
The court held, refusing the application, that the wording of
s.58(2)(d) permitted the repeal of "any statutory provision,
including a statutory provision which imposed an obligation;
it was not limited to one which conferred a power. The section
conferred a wide discretion on the Welsh Ministers to form a view
and exercise judgment as to whether earlier statutory provisions
had become obsolete or unnecessary or have been substantially
superseded. On the evidence, the Welsh Ministers used the precise
words of s.58(2)(d) in making their decision and there had not
been any misdirection, still less any misunderstanding, as to
the meaning of "obsolete" or "unnecessary" or "substantially
superseded". (8 November 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
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Bevan Brittan's Local Government Training ProgrammeBevan 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:
- 26 November 2012 (Birmingham): Education seminar – Navigating the changing landscape
- 5 December 2012 (London): Harrow & Barnet – The practicalities of delivering a shared legal service
For more details on our training programme or information on tailored training to meet your authority's requirements, please contact our Events team.
