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 four 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    Government Policy
   Children's Services    Health and Social Care
   Communities    Performance
   Community Infrastructure Levy    Police
   Council Tax    Procurement
   Delivery of Services    Public Health
   Education    Regulatory Services
   Bevan Brittan's Local Government Training Programme


Adult Social Services

R (Cornwall Council) v Secretary of State for Health;  Wiltshire Council, South Gloucestershire Council & Somerset CC (Interested Parties) [2012] EWHC 3739 (Admin) (Admin Ct): C Council applied for judicial review of the SoS's decision that PH was "ordinarily resident" in Cornwall for the purposes on the National Assistance Act 1948 so that C Council was under a duty to provide care and assistance to PH under that Act. PH was born with significant learning and physical disabilities. He lived in Wiltshire with his parents until 1991, when W Council placed him with foster carers in South Gloucestershire. His parents then moved to Cornwall but they remained closely involved in decisions affecting him and had regular contact with him. After PH reached 18, he moved to a care home in Somerset that was funded by W Council. He visited his parents in Cornwall and had no remaining close family ties with Wiltshire. W Council and C Council disagreed over responsibility for PH once he became 18 and they asked the SoS to determine his ordinary residence. The SoS found that PH was ordinarily resident in Cornwall, applying the test in R v Waltham Forest LBC, ex p. Vale (Times, 25 February 1985) that where a person was so severely handicapped as to be totally dependent upon a parent or guardian, that person was in the same position as a small child and their ordinary residence was that of her parents or guardian because that was their base.
The court held, refusing the application, that the SoS's determination that PH had as his base his parents' home as at the date of his 18th birthday, and hence was ordinarily resident in Cornwall, was one that was properly open to him. "Ordinary residence" was a question of fact and degree. Vale was the first case in which the approach to the determination of the "ordinary residence" of an incapacitated person fell for decision and central government and local authorities had placed significant reliance on it in formulating guidance. It should not be replaced without good reason and a satisfactory alternative approach. In deciding whether PH's base was at the home of his natural parents, the SoS had applied the Vale test in a fact-sensitive way and in a similar way to Scenario 2 in the DH's guidance on Ordinary Residence (updated 2011). (21 December 2012)

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

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Children's Services

DfE: Supporting families who adopt: sets out a package of reform measures aimed at improving adoption support.  These include:

  • giving adoptive parents the same rights to pay and leave as birth parents;
  • publishing an Adoption Passport informing adoptive parents about what support they can expect; and
  • piloting personal budgets which will enable parents to have a freer hand in choosing the right support for their family.

(24 December 2012)

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

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DCLG: New cash backing more communities to put neighbourhood plans together: announces an increase in the amount that local authorities can claim for their neighbourhood planning duties. From 2 January 2013 local planning authorities can claim up to a maximum of £50,000 for up to 10 area designations in 2012/13, with an overall limit of £1.5m on designation payments. From 1 April 2013 this is extended to up to 20 designations (£100,000) in 2013/14, with a £5m overall limit for designation payments in that financial year. In total, local planning authorities can claim up to £30,000 for each neighbourhood plan. The payment is made in three stages: £5,000 on designation of a neighbourhood area, in recognition of the officer time supporting and advising the community in taking forward a neighbourhood plan; £5,000 when the local planning authority publicises the neighbourhood plan prior to examination; and £20,000 on successful completion of the neighbourhood planning examination. (18 December 2012)

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

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Community Infrastructure Levy

DCLG: Community Infrastructure levy – Guidance: this guidance sets out the main procedures that local authorities need to follow when introducing and operating the Community Infrastructure Levy. It is issued by the Secretary of State under s.221 of the Planning Act 2008 and replaces the ‘Community Infrastructure Levy Guidance: charge setting and charging schedules procedure’ published in March 2010. (14 December 2012)

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

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Council Tax

DCLG: Localising support for Council Tax: Council Tax reduction scheme – Taking account of universal credit income: in October 2012, DCLG published a document setting out how the default council tax reduction scheme will take account of claimants receiving universal credit, and how these measures will help to support positive work incentives. This document now provides some worked examples of how default scheme universal credit provisions operate. (7 December 2012)

DCLG: Localising support for Council Tax – Taking work incentives into account: this guidance sets out the key considerations for local authorities when designing local council tax reduction schemes that support positive incentives to work, helping to make it clear that work pays and so making it worthwhile to enter work, work more, and rely less on benefits. (18 December 2012)

Council Tax regulations:

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

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Delivery of Services

DCMS: Library profile reports: DCMS has published a set of benchmarking reports, produced by CIPFA, that help library authorities ensure they are delivering a good level of service and review any areas for improvement. The comparative profile reports enable authorities to compare their services with those of similar authorities, using the CIPFA Nearest Neighbour Model, so that they can compare ‘like with like’ when considering the delivery of their library services across a wide range of indicators, including:  library usage; financial information; levels of staffing; the number of volunteers; loans figures; stock levels; and book acquisitions. (18 December 2012)

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

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DfE: Consultation on the revised statutory guidance on children missing education for local authorities: seeks views on draft revised statutory guidance for local authorities on how they can best fulfil their duty under s.436A of the Education Act 1996  to put into place effective arrangements for identifying children of compulsory school age living in their area who are missing education. The consultation closes on 15 February 2013. (17 December 2012)

DfE:Schools Funding Settlement 2013-14 including Pupil Premium: confirms details of school revenue funding for 2013-14, including the Dedicated Schools Grant and indicative allocations of the Pupil Premium.
The Government has also confirmed arrangements for the new Education Services Grant funding for local authorities and academies for education services. (19 December 2012)

DfE: Copyright licence deal to save schools time and money: announces that the Copyright Licensing Agency (CLA) and the DfE have signed a three-year agreement under which, from April 2013, the DfE will manage a national CLA Schools Licence for all state maintained schools in England. The agreement also includes a new licence from the Music Publishers Association to cover copying of items such as printed sheet music. The change will relieve local authorities and academies of the responsibility for administering copyright licensing for schools. (21 December 2012)

British Humanist Association v Richmond upon Thames LBC; Roman Catholic Diocese of Westminster and Secretart of State for Education (Interested Parties) [2012] EWHC 3622 (Admin) (Admin Ct): BHA applied for judicial review of the Council's decision to approve proposals put forward by the Diocese to establish two new voluntary aided Catholic schools under s.11(1A) of the Education Act 2006. BHA contended that the Council had identified a need for there to be two new schools in its area and therefore was under a duty under s.6A of the Education Act 2006 to invite proposals for the establishment of an Academy, so it was not entitled to proceed to consider and approve the proposals of the Diocese for the formation of the two schools as voluntary aided schools; alternatively, if the Council had not identified a need for two new schools, the public consultation it carried out was flawed as it gave the false impression that the Council had identified such a need and so materially misled those being consulted.
The court held, refusing the application, that the Council had acted lawfully in making the assessment that it did not think that a new school needed to be established in its area, and hence that no duty had arisen under s.6A. The Council's assessment was that there was no "need" (in a s.6A sense) for a new school to be established, but rather that it was merely desirable in its assessment of the public interest and having regard to factors relevant under ss.13 and 14 of the 1996 Act that the Diocese's proposals to establish the two new Catholic schools should be approved and the site made available for the implementation of those proposals. The obligation under ss.13 and 14 of the 1996 Act  to ensure sufficiency of education in its area, parental choice and diversity of provision was an obligation on the Council, even if the schools providing the education might be funded by others. A local authority was entitled when making an assessment under s.6A as to whether there was a "need" for a new school, to have regard to the overall impact on educational provision in its area. The test for the obligation in s.6A involved a very general judgment, in relation to which a wide range of factors were potentially relevant. The consultation paper contained no express statement that the Council considered that there was a current "need" (in the technical s.6A sense) for new schools to be established on the site, nor was there any implied representation to that effect. (14 December 2012)

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

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DCLG: Local Government Finance Settlement 2013-14: details of the provisional funding allocations for local authorities in 2013-14 as well as the provisional Revenue Support Grant for 2014-15. It includes the new arrangements for business rates retention that will come into place on 1 April 2013. The central and local shares will be set at 50% until the first reset of the system in 2020. The proposals are now out for consultation until 15 January 2013. (19 December 2012)
For details of the settlement, see the LGA's briefing paper.

DCLG: A practitioner’s guide – Business Rates Retention and the 2013-14 Local Government Finance Settlement in England: provides an overview of the calculations set out in the Local Government Finance Report 2013-14 and the draft Local Government Finance Report 2014-15. It also explains how the business rates retention scheme has been set up and how it will operate. (19 December 2012) 

DCLG: 50 ways to save – Examples of sensible savings in local government: suggests ways in which local authorities can make efficiency savings, and highlights ways that councillors can challenge officers to deliver savings, and ways that taxpayers can challenge councillors. (19 December 2012)
New figures from the LGA show that at least 337 local authorities in England are already engaged in sharing at least one service, by teaming up to deliver frontline services such as social care and waste disposal, and sharing back office functions like HR, legal services and accountancy, resulting in savings of £249m so far. A further £169m in savings from these agreements is projected in coming years.

DCLG: Spending power data by local authority for 2013 to 2014: this spreadsheet sets out ‘per household’ figures that are calculated using total spending power (a combination of the new start up funding assessment and council tax) and the number of dwellings by council tax band for each administrative area in England. The counts are calculated from data for England extracted from the Valuation Office Agency’s database on 12 September 2011. (21 December 2012)

Non-domestic rating regulations:

  • Draft Non-Domestic Rating (Levy and Safety Net) Regulations 2013: these regulations, once in force, set out the operation and calculation of levy and safety net payments under the scheme for local retention of non-domestic rates. (11 January 2013)
  • Draft Non-Domestic Rating (Rates Retention) Regulations 2013: these regulations, once in force, implement the core elements of the scheme for local retention of non-domestic rates. In particular, they define non-domestic rating income for the purpose of calculating the billing authority’s payments under the scheme to the Secretary of State and certain other relevant authorities. They also set out the billing authority’s liabilities towards other authorities, and provide for the administration of the scheme generally. 11 January 2013)
  • Draft Local Government Finance Act 2012 (Consequential Amendments) Order 2013: this Order, once in force, makes amendments to the Local Government Finance Act 1992 and the Greater London Authority Act 1999 in consequence of the changes made to the way non-domestic rates income is distributed by the Local Government Finance Act 2012. (11 January 2013)

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

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Government Policy

HM Government: The Coalition – Together in the national interest: the Coalition Government has published its Mid Term Review that takes stock of progress made in implementing the Coalition Agreement signed in May 2010. The Review mainly lists what the Government has done so far to implement its policies to build a stronger, more balanced economy and a fair society. It also highlights what it claims are a "new set of reforms" to secure the country’s future and help people realise their ambitions. These include:

  • continued support for the creation of mutuals and co-operatives, and continued development of Right to Provide policies that will enable mutual and co-operative organisations to deliver a wider range of public services;
  • support for proposals from local authorities to share services and to integrate their services with other local providers;
  • a second wave of City Deals, to give more British cities the power to strengthen their local economies;
  • progress with Lord Heseltine’s recommendation that local areas should have single funding pots;
  • each public body will be reviewed once every three years to ensure that it can justify to Ministers its existence and structure;
  • an additional £1bn to expand good or outstanding schools, including enough funding for up to 100 new Free Schools and Academies in areas of basic need, and
    support for those wanting to set up new schools, primarily in areas of disadvantage and basic need, and  capital for the expansion of good schools and for improving FE colleges;
  • revised statutory guidance on child protection and reform of family law to reduce delays in care proceedings;
  • legislating to give people with eligible needs for care an entitlement to a personal budget and a care and support plan in England; and
  • replacing Anti-Social Behaviour Orders with a more effective system for protecting the public.

Detailed plans for public spending for the 2015/16 fiscal year will be set out before Summer 2013, in line with the overall path of deficit reduction which has already been set out to 2017/18. (7 January 2013)
Alongside the Mid Term Review, the Government has published its Mid-Term Review – Programme for Government Update, which provides details of the progress that has been made in implementing each of the commitments in the Coalition's Programme for Government (2010). The Update provides a snapshot of the work that has been done, up to the end of 2012. (9 January 2013)

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

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Health and Social Care

DH: Addendum to the Summary Report on issues relating to local Healthwatch regulation: this supplementary report covers issues around the local Healthwatch regulations and provides information on the DH’s approach to the drafting of regulations in response to the views received from the targeted six week consultation. (17 December 2012)

CentreForum: Delivering Dilnot: paying for elderly care: this report discusses the recommendations of the Dilnot Commission on Funding of Care and Support, focusing on whether the Government can find the resolve and the funding to deliver practical reform that works for Britain. There are a wide range of contributors, from Paul Burstow MP, former Care Services Minister under the Coalition, and Lord Sutherland, former chair of the Royal Commission on Long Term Care under Labour, to a carer and a pensioner. It emphasises that tough political decisions must be made to deliver reform, and proposes how it can be funded a way that is fair and sustainable. The report also looks at what the private sector needs in order to deliver the necessary insurance products. (3 January 2013) 

R (Chatting) v Viridian Housing and Wandsworth LBC [2012] EWHC 3505 (Admin) (Admin Ct): C, aged 92, applied for judicial review of decisions regarding the provision of her residential care. C lived in a flat in premises that had been run by VH as a residential care home but which were later converted into sheltered housing. C brought proceedings challenging the conversion from a care home into sheltered housing, on the grounds that she had been promised a home for life. Her action was dismissed by consent on agreed compromise terms that VH would provide C with residential accommodation with board and care at the premises, funded by the local authority, until either her death or until she required nursing care. VH later transferred the premises and its care obligations to a new provider. C contended that that transfer breached the compromise agreement and her rights under Art.8 ECHR.
The court held, refusing her application, that VH was not in breach of the compromise agreement. VH's obligation was to provide C with accommodation with board and care in the premises, subject to conditions regarding her need for nursing care and the local authority's compliance with its funding obligations. VH was not in breach of the terms of compromise so long as that situation obtained, nor was there any explicit assurance that the identity of the provider would not change. The transfer of the legal identity of the organisation providing C's care did not interfere with her private life under Art.8 nor had any changes left her in inhuman and degrading circumstances. The local authority had not acted unlawfully in its handling of C's care. It was not under any legal duty to make arrangements under s.26 of the National Assistance Act 1948 for C to receive accommodation and care in a residential unit of one person. (13 December 2013)

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

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Welsh Government: Local authority service performance 2011-12: this report sets out performance information for each of the key services that local authorities are responsible for delivering in Wales. It details why each service is important and what it is reasonable for citizens to expect from the delivery of that service. It also compares each authority's performance with other Welsh authorities. There is a summary Quick Guide. (11 January 2013)

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

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Compact Voice: Gloucestershire – Influencing the Police and Crime Commissioner: this case study explores how Gloucestershire Association for Voluntary and Community Action worked proactively with the Gloucestershire Police Authority and Gloucestershire Constabulary to help the voluntary and community sector to engage with and influence the new Police and Crime Commissioner. (7 January 2013)

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

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Public Services (Social Value) Act 2012 (Commencement) Order 2012 (SI 2012/3173 (C.124)): this Order brings ss.1 & 2 of the 2012 Act into force on 31 January 2013. These sections require public authorities at the pre-procurement phase of procuring public services to consider how what is being procured might improve the economic, social and environmental well-being of an area and how the authority might secure that improvement by the procurement process itself. They also require that authorities consider whether to consult on these matters. (20 December 2012)
For a summary of the Act , see our Alert: Public Services (Social Value) Act 2012.

Cabinet Office: The Public Services (Social Value) Act 2012 – Advice for commissioners and procurers (Procurement Policy Note 10/12): this PPN advises commissioners and procurers on how they must follow the 2012 Act and take it into account when considering procurements of certain types of services contracts and framework agreements. (7 January 2013)

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

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Public Health

LGiU / Westminster City Council: A dose of localism – The role of councils in public health: this joint report examines the role of councils in promoting public health. It discusses how local government is receiving responsibility for public health at a challenging time, when it is facing both a significant increase in demand and a significant reduction in resource. It makes five recommendations as to how local authorities can integrate public health across all service areas, help communities to provide services for themselves and invest in prevention. In particular, it highlights the need for councils to incentivise people to exercise. (3 January 2013)

DH: Ring fenced public health grants to local authorities 2013-14 and 2014-15: announces the ring fenced grants for 2013-14 and 2014-15 that provide local authorities with £2.66bn and £2.79bn to spend on public health services for their local populations. The DH states that the allocations provide for average growth of 5.5% in 2013-14 and 5.0% in 2014-15. The grant conditions and reporting arrangements that will apply to the grant from April 2013 have also been published, along with a technical guide. (10 January 2013)

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

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Regulatory Services

HSE: Public consultation on a National Local Authority Enforcement Code – Health and Safety at Work: seeks views on proposals for a National Local Authority Enforcement Code that has been developed in response to Professor Ragnar Löfstedt's report "Reclaiming health & safety for all: An independent review of health and safety legislation" which recommended that HSE be given a stronger role in directing local authorities' health & safety inspection and enforcement activity. The consultation closes on 1 March 2013. (21 December 2012)

DCMS: Entertainment deregulation consultation response: sets out the Government's response to the September 2011 consultation on deregulating entertainment regulated by Sch.1 to the Licensing Act 2003. In light of the responses received, the Government intends to remove the requirement for entertainment licences between 8am and 11pm for indoor sport activities for audiences of up to 1,000 people, and for plays, dance and live and recorded music in alcohol licensed premises for audiences of up to 500 people. The measures will also include plays, dance and indoor sport events taking place on community and local authority owned premises. The key protections of the Live Music Act 2012 will be retained, but raise the permitted audience limit from 200 to 500, in line with most other deregulated activities in on-licensed premises and workplaces. Regulation for recorded music will be suspended between 8am – 11pm in on-licensed premises such as bars and clubs, subject to controls from the local licence review process. (7 January 2013)

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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