Practical and Legal Guidance for Assessing Capacity
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Read More14/12/2012
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.
This is the last Update for 2012. The next issue will be distributed in mid-January and will cover developments up to 11 January 2013.
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
Durham CC v D {2012] EWCA Civ 1654 (CA): this case
considered the ambit of the Council's duty of disclosure in
proceedings for damages in respect of assaults alleged to have been
committed by staff at a young people's centre for which the Council
was responsible. The council disclosed some redacted documents but
objected to disclosure of unredacted personnel files.
Following the case management conference, the judge ordered
redacted disclosure, treating the application as being governed by
the Data Protection Act regime. This was held on
appeal to be approach was incorrect as it took place
within the context of a case management conference to which the CPR
applied, and the proceedings were in the nature of a common law
action for damages, not a statutory application pursuant to the
DPA. The appeal judge ordered the disclosure of all the disputed
documents in unredacted form.
The Court of Appeal held, dismissing the council's appeal, that the
judge had carried out the right balancing
exercise. Although he ought to have confined himself to
the CPR, ultimately his approach addressed relevance and concluded
with the balancing of "the prejudice to the applying party of being
deprived of information against the prejudice to the third party as
a result of the disclosure". He applied a test of strict necessity,
albeit on the basis that the claimant had satisfied the test
whereas, in truth, it had been for the Council to establish that it
was strictly necessary not to disclose. His approach was
substantially correct and his conclusion was unassailable. (13
December 2012)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Adult Social Services
LGIU: A good death: the role of the local authority in end of life care: in recent years the health sector has taken the lead role in end of life care provision and the engagement of local authorities has been more mixed. However, many local authority services, such as social care and housing, are crucial components when delivering high quality end of life care. This report looks at the role of local authorities in this agenda and how councils can develop their part in this important service provision. (30 November 2012)DH: Market oversight in adult social care: seeks views on policy proposals to strengthen oversight of the social care market and new measures to protect people who rely on care services in the event of provider failure. The proposals look at what further measures are needed to strengthen and clarify the responsibility of local authorities in relation to care users in the event of the failure of a care provider, and whether a targeted model of central oversight would be appropriate and if so, what the elements of this model would be. The consultation closes on 1 March 2013. (1 December 2012)
Contracting Out (Local Authorities Social Services Functions) (England) (Amendment) Order 2012 (SI 2012/3003): tis Order, which comes into force on 13 December 2012, amends SI 2011/1568 so as to extedn the period in which local authorities can contract out their adult social services functions for the purposes of two types of pilot schemes – Social Work Practices and Right to Control. The Government proposes to extend the Social Work Practices pilot scheme until 31 March 2014, and to extend the Right to Control pilot scheme until 13 December 2013. (3 December 2012)
Disabled People’s Right to Control (Pilot Scheme) (England) (Amendment) Regulations 2012 (SI 2012/3048): the Right to Control was established under Part 2 of the Welfare Reform Act 2009 to enable disabled adults to exercise greater choice and control over the way in which certain services are provided to or for them by central government and by local authorities. These regulations, which come into force on 12 December 2012, extend the Right to Control Pilot Scheme for a further 12 months, until 12 December 2013. They also remove Oldham MBC from the list of local authorities delivering the Right to Control. (6 December 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Anti Social Behaviour
Home Office: Community Remedy consultation:
seeks views on propsals to introduce a Community Remedy approach for low-level
crime and anti social behaviour, whereby Police and Crime
Commissioners (PCCs) will be required to consult victims
and the public on the menu of sanctions available for those
committing low-level crime and anti-social behaviour, either as
part of an informal community resolution or a more formal
conditional caution. The aim of the proposals is help PCCs
make the approach to low-level crime and anti social behaviour in
their area more responsive and accountable to victims and the
public, with proportionate but meaningful sanctions. The
consultation closes on 7 March 2013.
The Home Office has also published a draft Anti Social Behaviour Bill that will give
local areas more effective measures to deal with anti social
behaviour, including two measures that focus on the needs of the
victims: the Community Trigger and the Community Remedy. (13
December 2012)
If you wish to discuss any of the items noted in this section please contact Steven Eccles.
Audit
Audit Commission: Proposed work programme and scales of fees 2013/14 – Local government and police bodies: seeks views on the Audit Commission's planned programme of work at local government and police audited bodies during 2013/14, with the associated scales of audit fees. The consultation closes on 8 February 2013. (10 December 2012)
Audit Commission: Auditing the accounts 2011/12 – Quality and timeliness of local public bodies' financial reporting: summarises the results of auditors' work for 2011/12 at local authorities, fire and rescue authorities, police bodies, other local government bodies, parish councils and internal drainage boards. The report found that the quality and timeliness of financial reporting improved in 2011/12, with 426 (out of 472) principal bodies publishing their audited 2011/12 accounts by the 30 September 2012 deadline. No principal bodies received a qualified audit opinion. Parish councils and other small bodies also improved the timeliness of their financial reporting.. (13 December 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Children's Services
Ofsted: Conducting inspections of local authority and voluntary adoption agencies: guidance for Ofsted inspectors on conducting inspections of local authority and voluntary adoption agencies. It should be read in conjunction with the inspection framework and the evaluation schedule. (10 December 2012)
Ofsted: Conducting inspections of local authority fostering services and independent fostering agencies: guidance for Ofsted inspectors on conducting inspections of local authority fostering services and and independent fostering agencies. It should be read in conjunction with the inspection framework and the evaluation schedule. (10 December 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Delivery of Services
HC Communities and Local Government Select Committee: Mutual and cooperative approaches to delivering local services: this inquiry investigated what local authorities are doing to develop mutuals and cooperatives to deliver local services, in order to identify the benefits that such approaches might offer, to assess the risks and to examine the support being provided by Government to assist in setting up mutuals and cooperatives. The Committee found that the lack of progress was surprising given the benefits claimed for mutuals and cooperatives. However, the evidence for the benefits of mutuals and cooperatives operating in local government was limited, resulting in a “chicken and egg” situation with local authorities holding back until the evidence is stronger while the evidence cannot be produced until more authorities move to a mutual or cooperative approach. The Committee concludes that the Government needs to go further to help remove the barriers that are preventing more mutuals and cooperatives from starting up, including providing “off the shelf” models and guidance and advice. It should also ensure that procurement rules give the maximum flexibility in tendering for services so that mutuals and cooperatives are able fairly to compete with large companies and in-house providers. (6 December 2012)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Education
DfE: School Teachers' Review Body – 21st report: the STRB was asked to review current provisions for teachers’ pay with a view to raising the status of the profession and contributing to improving the standard of teaching in schools. This report sets out the STRB's findings that provide a strong case for reform, to free up the current system of teachers’ pay to support greater school autonomy. Its recommendations include:
- ending pay increases based on length of service;
- linking all teachers’ pay progression to performance, based on annual appraisals;
- abolishing mandatory pay points within the pay scales for classroom teachers to give schools greater freedom on how much teachers are paid. They would remain in place for reference only in the main pay scale to guide career expectations for new teachers entering the profession; and
- retaining the higher pay bands for London and fringe areas.
(5 December 2012)
School and Early Years Finance (England) Regulations 2012 (SI 2012/2991): these regulations, which come into force on 1 January 2013, define the local authority education budgets (the non-schools education budget, the schools budget, the central expenditure and the individual schools budget) and set out how, in the 2013-14 financial year, local authorities are to allocate funding from the individual schools budget to maintained schools and private, voluntary and independent providers of free early years provision through a locally determined formula. (7 December 2012)
DfE: Help for children in care to achieve better school results: announces measures to help children in care in England achieve better grades at school and to help them turn their lives around. Latest figures show that the results of children in care remain well below average. To improve these results, the Government intends to make it a legal requirement for local authorities to have a Virtual School Head, whose primary focus will be to raise the educational attainment of children in care by getting them the support they need to succeed at school and in later life. (12 December 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Enforcement
LGO: Taking possession – Councils’ use of bailiffs for local debt collection: this report outlines issues arising from complaints about bailiff action on behalf of councils. It focuses on cases that have resulted in injustice to the individuals concerned, showing what can go wrong and just how serious the injustice can be. The report suggests how councils and their agents can avoid others suffering in a similar way and highlights cases where inappropriate or unreasonable fees and charges have been made. It also sets out some questions that local authorities should ensure bailiffs consider when dealing with potentially vulnerable debtors. (28 November 2012)If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Finance
Audit Commission: Striking a balance: this report presents the Audit Commission’s findings from research undertaken during 2012 on the level of reserves that councils hold and on the decisions councils make relating to them. It encourages English councils to focus more attention on the £12.9bn set aside in their reserves – the equivalent of nearly a third of their net spending on services in 2011/12. While the Commission found that councils routinely consider reserves as part of their annual budget setting, the report calls for officers to offer elected members clearer and more comprehensive advice, equipping them to make better-informed decisions. It also calls for greater clarity from councils about the reasons for holding reserves. The majority (£9.9bn) was earmarked for specific purposes, but this did not always mean there was a plan for spending the funds. It advises that councils should regularly review reserves to ensure they reflect the risks that councils face and the scale of their future spending plans; they also need to ensure that their reserves provide adequate protection against financial shocks. (6 December 2012)
HM Treasury: Autumn Statement 2012: the Chancellor has delivered his Autumn Statement to Parliament, giving a formal update on the current state of the economy, responding to the most recent analysis from the Office of Budgetary Responsibility, and setting out the Government's planned measures to boost growth. Key announcements for local authorities are:
- a further £6.6bn package of savings to be made in 2013-14 and 2014-15, with Departments to reduce spending by 1% next year and 2% year after. The reduction in the DCLG budget is expected to amount to £447m. Local authorities will be exempt from the additional reductions to departmental budgets in 2013-14 but will be subject to the 2% reduction to departmental budgets planned for 2014-15;
- the next Spending Review will be in 2013;
- support for local authorities that wish to create a combined authority or implement other forms of collaboration (for example, shared management), including ensuring that the existing legislation is fit for purpose;
- additional funding for infrastructure, including £333m for the essential maintenance of national and local road network, £980m investment in schools, £270m for capital investment to improve FE colleges and £120m for new flood defences;
- LEPs to lead the development of new strategic plans for local growth consistent with national priorities , with a single funding pot for local areas from April 2015. When developing their plans, LEPs will be expected to seek to leverage funding, including from local authorities and the wider public and private sector;
- a new concessionary public works loan rate to an infrastructure project nominated by each LEP (excluding London), with the total borrowing capped at £1.5bn;
- £350m towards the Regional Growth Fund;
- around £225m to accelerate delivery of large housing sites plus around £190m to de-risk public sector land and enable the quicker disposal of surplus sites for new homes, plus £100m to bring forward public sector sites for development.
(5 December 2012)
The LGA has produced an On the Day briefing that comments on the
implications for local authorities.
HM Treasury: A new approach to public private
partnerships: presents the conclusions of the PFI review and
sets out the Government’s new approach for involving private
finance in the delivery of public infrastructure and services
through a long-term contractual arrangement, Private Finance 2
(PF2). (5 December 2012)
For details of the proposals and a discussion of the issues they
raise, see our Alert:
PF2 – a new approach or business as usual? What is in it for
you?
HM Treasury: Standardisation of PFI Contracts: detailed draft guidance on the approach to be taken to structuring PF2 contracts, allocating risks between the public and private sector parties and promoting a common understanding of the new model in the market. Drafts of the new standard form services output template, pro forma payment mechanism, and shareholder arrangements will be published shortly for consultation. Following this they will be incorporated into “Standardisation of PF2 Contracts” which will then be republished in final form. (5 December 2012)
DCLG: Draft Council Tax Reduction Schemes (Prescribed Requirements and Default Scheme) (England) (Amendment) Regulations 2012: in September 2012 DCLG confirmed its intention to update and align the premia/ applicable amounts in regulations for the default and pensioner schemes with current rates/ DWP's autumn uprating, using Housing Benefit amounts. At the same time, DCLG said it would model the way in which non-dependent deductions would have been uprated had council tax benefit continued. Thess draft regulations effect these upratings. They are being published ahead of the regulations being made, to give authorities early notice of the changes required. (12 December 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Fire and Rescue Authorities
DCLG: Government fire chief to lead efficiency review of fire and rescue: announces that the Government has appointed the former firefighter and out-going government Chief Fire and Rescue Adviser, Sir Ken Knight, to conduct a review of the ways in which fire and rescue authorities may deliver further efficiencies and operational improvements without reducing the quality of front-line services to the public. The review will examine options for savings both within and beyond the current Spending Review period. The review report should be submitted to Ministers in Spring 2013. (14 December 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Judicial Review
Home Office: Judicial review – Proposals for reform: seeks views on a package of measures that aim to stem the growth in applications for judicial reviews by dealing with unnecessary delays in the system and weak or meritless cases which have no chance of success, in roder to tackle the burden that this growth has placed on stretched public services whilst protecting access to justice and the rule of law. The proposals focus on three key areas: the time limit for bringing proceedings; applying for permission to bring a claim; and fees for judicial review proceedings. The consultation closes on 24 January 2013. (13 December 2012)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Maladministration
Parliamentary Ombudsman: Responsive and accountable? 2011-12: this report looks at the way that government departments and agencies manage complaints. It shows how difficult it can be for people to get their voice heard when things have gone wrong, with stories of some of the many people who turned to the Ombudsman’s Service in the last year when all other attempts to get simple problems resolved had left them with nowhere else to go. The report also demonstrates how resolving complaints quickly, rather than letting them escalate, is better for the public purse. There is also a supplement with detailed data about the complaints that the Parliamentary Ombudsman dealt with in 2011-12. (12 December 2012)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Overview and Scrutiny
DH: Local authority health scrutiny – A summary of consultation responses: summarises responses to the Government's July 2012 consultation on proposals to update the current arrangements for health scrutiny so as to reflect the wider changes brought about by the Health and Social Care Act 2012, to ensure that the new organisations are subject to appropriate scrutiny and that all NHS commissioners and providers continue to be held to account through local democratic structures. The Government will now finalise the new regulations in light of the responses received, to come into force from 1 April 2013. It will also issue guidance to accompany the new regulations. (14 December 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Police
Home Office: Police and Crime Panels – Application of local authority enactments: this guidance explains which local authority enactments apply to PCPs. The legislation includes the provisions on meetings, access to information, discharge of functions, publicity and indemnities. (3 December 2012)
Home Office: Police and Crime Panels secondary legislation: this table lists all secondary legislation and related guidance relevant to the operation of police PCPs in England and Wales. It is designed as an easy reference guide and provides a link to each of the legislative enactments with a separate link to explanatory guidance. (23 November 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Public Health
Draft Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012: these draft regulations, once in force, provide for the steps to be taken by local authorities in exercising certain public health functions, for the exercise by local authorities of the Secretary of State’s public health functions and the making and recovering of charges by local authorities in respect of their public health activities. They also contain provisions relating to Local Healthwatch organisations under Part 14 LG&PIH Act 2007 as amended by Part 5 HSC Act 2012. (10 December 2012)If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Regulatory Services
DEFRA: Consultation on repeal of sections 63 to 67 of the Control of Pollution Act 1974 – Abolishing Noise Abatement Zones: seeks views on proposals to abolish Noise Abatement Zones (NAZs) and prevent new ones being established, as part of the Government’s Red Tape Challenge. Local authorities have powers to set up NAZs in areas where sound levels are established for classified premises within chosen zones and then used as reference levels for the control of noise in that area. The powers have been little used since they were introduced nearly 40 years ago and DEFRA believes that only two NAZs are currently in active use. Its analysis suggests that repealing the relevant sections of the 1974 Act would save local authorities time and money, as they would not have to formally revoke any NAZs that are no longer in use. Few local authorities are affected, so the savings are relatively small but repeal may also benefit premises covered by ‘inactive’ NAZs, as abolishing them would remove any confusion over their status. The consultation closes on 14 January 2013. (7 December 2012)If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Social Enterprises
Charitable Incorporated Organisations (General) Regulations 2012 (SI 2012/3012): these regulations implement the Charitable Incorporated Organisation (CIO) provisions in Part 11 of the Charities Act 2011, with the exception of those which allow for the conversion to CIO status of other forms of charity (such as charitable companies, IPSs and CICs), which will be implemented later. These General Regulations provide for the registration, constitution and administration of CIOs.See also:
- Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (SI 2012/3013): provide for the dissolution of a CIO either through a bespoke dissolution procedure or through the insolvency and dissolution procedures set out in the Insolvency Act 1986. They also provide for the restoration to the register of a dissolved CIO in certain circumstances;
- Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (SI 2012/3014): makes certain amendments to primary legislation in consequence of the coming into force of Part 11 of the Charities Act 2011.
The measures all come into force on 2 January 2013. (5 December 2012)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
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