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:  

   Anti Social Behaviour    Health
   Byelaws    Procurement
   Children's Services    Public Health
   Delivery of Services    Regulatory Services
   Education    Standards
   Bevan Brittan's Local Government Training Programme


Anti Social Behaviour

R (Castelli) v Merton LBC (Unreported) (Admin Ct, Nicholas Paine QC): the Administrative Court has dismissed an application for judicial review of the Council's decision that four trees did not constitute a "high hedge" under s.66 of the Anti-social Behaviour Act 2003. C had complained to the Council about four trees on the edge of parkland adjacent to his garden. The Council contended that the trees were not a high hedge within the 2003 Act as there was "no growth in the essential two metre zone", the trees were "individual trees forming an edge to woodland" and there was "no overhang of the trees' canopy" onto C's property.
The court held, refusing C's application, that the fact that there was no foliage growth below two metres was not a legally good reason for finding that the growth was not a high hedge, nor was the overhang of the canopy relevant. However, the Council was entitled to conclude that the trees did not constitute a high hedge because they did not form a line as required by s.66(1). (5 February 2013)
The judgment is available on Lawtel (password required).  

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

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DCLG: Model byelaws: DCLG has published a number of new model byelaws for local authorities, together with flowcharts and guidance notes:

The notes state that byelaws should not be adopted en bloc, but only as genuinely required to address an existing problem. If authorities are in doubt about the layout of the byelaws they are advised to use the standard scheme and not seal the byelaws until they have received the Secretary of State's approval. Some of the models contain complex and detailed technical information and uniform standards throughout the country should be maintained as far as possible. Local variation is not desirable and these model byelaws should be adopted as a package without deviation. The Secretary of State will not confirm byelaws which deviate from these models. (8 February 2013)

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

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Children's Services

DfE: More great childcare - Raising quality and giving parents more choice: this report sets out a plan of action for how the Government will achieve its vision of a dynamic childcare market, delivering high quality early education. It includes proposals to make Ofsted the sole inspector of early years provision, removing local authorities' quality improvement role. (29 January 2013)

DfE: Early education and childcare staff deployment: seeks views on how the staffing arrangements at nurseries and other pre-school settings could work more effectively. It includes proposals to relax the staff:child ratios where nurseries hire highly-qualified staff. There are also proposals to relax the rules for childminders, while retaining the current maximum limit of six children that childminders can look after. The consultation closes on 25 March 2013. (30 January 2013)

Children and Families (Wales) Measure 2010 (Commencement No. 6) Order 2013 (SI 2013/18 (W.9) (C.2)): this Order brings provisions in Part 3 of the Children and Families (Wales) Measure 2010 into force in Neath Port Talbot, Bridgend and Swansea on 1 February 2013. The effect is that these local authorities have a duty to establish an integrated family support (IFS) team in their area, with the participation of their local health board. The authorities must also establish a board to oversee the IFS team. (10 January 2013)

Children and Families Bill: this Bill has been introduced into the House of Commons and received its 1st Reading. It takes forward a range of Government commitments which are intended to improve services for key groups of vulnerable children (children in the adoption and care systems, those affected by decisions of the family courts and those with special educational needs) and to support families in balancing home and work life, particularly when children are very young. The provisions include:

  • Adoption reform: supports the reforms set out in "An Action Plan for Adoption: Tackling Delay" by promoting fostering for adoption and improving support for adoptive families;
  • Children in care: requires every local authority  to have a ‘virtual school head’ to champion the education of children in the authority’s care, as if they all attended the same school;
  • Special Educational Needs: extends the SEN system from birth to 25, giving children, young people and their parents greater control and choice in decisions and ensuring needs are properly met. It takes forward the reform programme set out in "Support and aspiration: A new approach to special educational needs and disability: Progress and next steps" by replacing old statements with a new birth- to-25 education, health and care plan; offering families personal budgets; and improving cooperation between all the services that support children and their families, particularly requiring local authorities and health authorities to work together;
  • Childcare reform: reforms to ensure that the whole system focuses on providing safe, high-quality care and early education for children. The Bill introduces childminder agencies which will enable more flexible childminding and remove bureaucracy so that it is easier for schools to offer ‘wrap-around’ care;
  • Family justice system: introduces a 26 week time limit when courts are considering whether a child should be taken into care and makes sure that more families have the opportunity to try mediation before applying to court; and
  • Children’s Commissioner: makes the Children’s Commissioner more effective by clarifying their independence from Government with a remit to ‘protect and promote children’s rights’.

See also the DfE factsheet. The Bill's progress through Parliament can be tracked on the Bill's web page. (5 February 2013)

Ofsted: Missing children: this report  explores the effectiveness of arrangements to safeguard children and young people, including those who are looked after by the local authority, who are at risk of going missing or running away. It draws on evidence from 105 cases and from the views of children and young people, carers, and professionals from the local authority and from partner agencies. The report highlights the need for urgent action to establish a single register to accurately track the number of children who go missing. (8 February 2013)

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

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Delivery of Services

LGA: Modelling devolution - Working together to deliver local services: this paper describes five models of how principal councils are devolving services to a more local level. The report distils five broad models enabling local councils to become more involved in service. These are based upon the significant amount of engagement in service delivery that local councils already have and represent the core models from which most local variation derives, namely: the charter approach; community asset transfer; clustering; service delegation ; and joint service provision. It includes a number of case studies showing how leading councils are devolving services and assets and how principal councils are working with local councils to help develop their capacity and do even more on behalf of their communities. (29 January 2013)

DCLG: Government response to the Communities and Local Government Select Committee’s report – Mutual and co-operative approaches to delivering local services: the Commons Select Committee published its report on mutual and co-operative approaches to delivering local services in December 2012. This report sets out DCLG's response to the Committee's specific comments and recommendations addressed to government. It confirms the Government's commitment to grow and expand the potential mutual and co-operative models for delivering services as part of the Open Public Services agenda. (7 February 2013)

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

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Welsh Government: Proposals to introduce regulations to give Welsh local authorities the power to establish federations of maintained schools in Wales: the Education (Wales) Measure 2011 enables Welsh local authorities to establish federations of maintained schools by following a process to be set out in regulations. This consultation seeks views on the proposed content of those regulations. The intention is that the process local authorities will follow to federate maintained schools will largely, save for a few appropriate changes, replicate the process that governing bodies currently follow, as set out in SI 2010/638 (W.64). The consultation closes on 14 March 2013. (17 January 2013)

Ofsted: A good education for all – Inspection of local authority services: seeks views on proposals to introduce a new framework for the inspection of local authority services for supporting improvement in schools and other providers. The inspection framework will evaluate how well the local authority is carrying out its statutory duty. The consultation covers: Inspection criteria; Inspection notice; Inspection judgements; and Inspection reports. There is also a draft framework for the inspection of local authorities.  The consultation closes on 19 March 2013. (5 February 2013)

DfE: Consultation on replacement of the Education (Inter-authority Recoupment) Regulations 1994 with the Inter-authority Recoupment (England) Regulations 2013: seeks views on technical changes to SI 1994/3251 regarding recoupment between local authorities where a person belonging to the area of one authority in England is educated by another authority in England or Wales. The proposed regulations will continue to require recoupment between English local authorities in the case of looked after children, when the authority where the child is resident and which commissions education.  The recoupment arrangements will also remain in place for authorities in England in so far as they relate to pupils from England educated in Wales, and pupils from Wales educated in England. The consultation closes on 25 February 2013. (4 February 2013)

Welsh Government: Parents’ meetings – Draft statutory guidance to the governing bodies of maintained schools in Wales regarding the duty to hold meetings with parents: s.94 of the School Standards and Organisation (Wales) Act 2013 provides new arrangements whereby parents can request up to three meetings a year with a governing body, provided that all four statutory requirements are satisfied. This paper seeks views on draft statutory guidance to which all such governing bodies must have regard when exercising their functions under s.94. The consultation closes on 22 March 2013. (4 February 2013)

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

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National Audit Office: Financial sustainability of local authorities: this report examines the Government’s approach to local authority funding, and reviews local authorities’ financial sustainability against a background of changes to their funding. The NAO concludes that so far, local authorities have generally been able to absorb central government funding reductions; however, there is emerging evidence that some service levels are reducing. Funding reductions are continuing, along with changes to the resourcing mechanism of local authorities. These changes increase financial uncertainty and more local authorities are facing the challenge to avoid financial difficulties while meeting their statutory responsibilities. This risk must be identified early so it can be managed effectively. DCLG will need arrangements to detect where risks will emerge, and its response will need to be flexible and coordinated with local and sector-wide support mechanisms. Central government must also satisfy itself that it understands the cumulative impact of funding changes and can make informed decisions about the funding required for local authority services. The NAO recommends that DCLG work with other government departments to better evaluate the impact of decisions on local authority finances and services, before and after implementation. (30 January 2013)

DCLG: Local Government Finance Settlement 2013/14: the Government has published the finalised LGFS for 2013/14. This includes the new business rates retention scheme, and the settlement sets out individual start-up funding assessments, baseline funding levels, business rates baselines, tariffs and top-ups, and the basis of their distributions. There is also data showing spending power by local authority and details of the Efficiency Support Grant 2013 to 2014.
The supporting documents include:

See also the Local Government Minister's Letter to council leaders of English local authorities – council tax levels in 2013 to 2014 on the Government's scheme to help councils freeze council tax bills in England. (5 February 2013)

R (M) v Haringey LBC (Unreported) (Admin Ct, Underhill J): the Administrative Court has dismissed an application for  judicial review of the Council's decision to adopt a council tax reduction scheme. M had submitted that the Council's consultation on its proposed scheme was not fair because it did not give sufficient information, in particular about the other ways in which the shortfall could be funded, and that the announcement of the transitional grant scheme gave rise to an obligation to re-consult. The court held that any flaws in the consultation procedure were not so unfair that they rendered the consultation unlawful. (7 February 2013)
The judgment is available on Lawtel (password required). 

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

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Mid Staffordshire NHS Foundation Trust Public Inquiry: Final report: the Inquiry, chaired by Robert Francis QC, has published its report into the role of the commissioning, supervisory and regulatory bodies in the monitoring of Mid Staffordshire NHS FT between January 2005 and March 2009, considering why the serious problems at the Trust were not identified and acted on sooner, and identifying important lessons to be learnt for the future of patient care. The report is extensive, running to 1,782 pages and making 290 recommendations. Its findings and recommendations are of fundamental significance not only for the NHS but also beyond. It contains essential lessons affecting internal governance, culture and leadership, and interaction with, and between, commissioning, regulatory and oversight bodies which will be applicable right across the health and social care sector. (6 February 2013)
Bevan Brittan has published a series of articles that take an initial look at some of the key legal findings and wider outcomes relating to a number of areas: Mid Staffordshire NHS Trust inquiry report published - Key points briefing. 

NHS Confederation: Stronger together – How Health and Wellbeing Boards can work effectively with local providers: this report sets out a framework of different ways that Health and Wellbeing Boards (HWBs) might approach engagement in their localities. It highlights examples of current mechanisms being used, exploring how these have developed and the advantages of working in these ways. (28 January 2013)

Regional Voices: Influencing local commissioning for health and care – Guidance for the voluntary and community sector: this policy briefing gives an overview of HWBs, Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies, and the role of the voluntary sector. (1 February 2013)

Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013/218): these regulations, which come into force on 1 April 2013, set out details regarding the exercise of local authorities' functions in relation to HWBs, health scrutiny, Community Right to Challenge of public health services and the National Child Measurement Programme. In particular, they:

  • disapply and modify certain enactments relating to local authority committees appointed under s.102 LGA 1972 insofar as they are applicable to an HWB;  
  • disapply the political balance requirements set out in the LG&HA 1989 for HWBs;
  • revoke and replace the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 regarding local authorities' review and scrutiny of matters relating to the planning, provision and operation of the health service in their area; and
  • add three new exemptions from the Community Right to Challenge for certain public health services to be provided by local authorities, so as to allow for the effective transfer of public health services from PCTs to local authorities during a period of substantial reform to the NHS and local authority architecture without being disrupted by any potential challenges to current service provision.

(31 January 2013)

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

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DCLG: Best councils to do business with contest: announces a new competition to identify and celebrate councils taking a supportive approach to engaging small and medium-sized enterprises in procurements. DCLG would like these examples of excellent practice to gain the recognition they deserve, so that other councils can learn from them and that small suppliers can come forward with more confidence in bidding for local government business. The competition winners will be invited to a reception at No.10 Downing Street to share and celebrate their success. The closing date for nominations is 22 February 2013. (25 January 2013)

Cabinet Office: Procurement Policy Note – Public procurement and the Public Sector Equality Duty (PPN 01/13): this PPN reminds public bodies of their legal obligations under the PSED when conducting their public procurement activities. This is not a comprehensive guide to the PSED, but a summary of how the duty can be taken into account when conducting public procurement. (28 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

Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013 (SI 2013/160 (C.9)): this Order brings a large number of provisions in the 2012 Act into force on 1 April 2013. The provisions being commenced include:
  • Part 1 Chapter 1 (ss.29 - 32) on local authorities' public health role;
  • Part 5 Chapter 1 (ss.182 - 189) on Local Healthwatch organisations; and
  • Part 5 Chapter 3 (ss.190 - 199) on local authorities' scrutiny functions, joint strategic needs assessments and strategies, and Health and Wellbeing Boards.

There are also a number of savings and transitional provisions. (28 January 2013)

DH: Public health services non mandatory contracts and guidance: this non-mandatory Public Health Services contract is designed for use by local authorities in commissioning services to meet their new public health functions. It is adaptable for use for a broad range of public health services and delivery models. Although the contract is non-mandatory it provides a robust framework to hold providers to account for the delivery of high quality public health funded services to achieve improved health outcomes. There is also guidance. (31 January 2013)

DH: Public Health England people transition policy – FAQs for Module 2: sets out a series of frequently asked questions about module 2  of the people transition policy, for terms and conditions for staff on transfer into Public Health England. Module 2 also sets out terms and conditions for staff joining after 1 April 2013. (5 February 2013)

DH: Transfer of public health staff from PCTs to LAs: updated slides on transition issues for the transfer of public health staff from PCTs to local authorities, prepared for events organised by the HR Concordat Steering Group for senior managers in both PCTs and local authorities. (7 February 2013)

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

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Regulatory Services

DBIS: Street trading and pedlary laws – Compliance with the European Services Directive: seeks views on draft regulations that amend street trading legislation and repeal the Pedlars Acts 1871 and 1881, to ensure that the legislation complies fully with the requirements of the European Services Directive 2006/123. The consultation also emphasises the need for local authorities to screen their local street trading legislation against the requirements of the Directive. The consultation closes on 15 March 2013. (6 February 2013)

Home Office: Surveillance camera code of practice consultation: seeks views on the scope and clarity of a draft surveillance Code of Practice and its likely impact. The draft code is built upon 12 guiding principles, and for the first time introduces a philosophy of surveillance by consent. It builds on the regulatory framework in the Protection of Freedoms Act 2012, which is intended to complement and be coherent with existing legislation, such as the Data Protection Act 1998, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000. The consultation closes on 21 March 2013. (7 February 2013)

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

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DCLG: Removing unnecessary red tape – Council Tax setting: this letter from Local Government Minister Brandon Lewis to local authority leaders explains DCLG's opinion that councillors do not need to declare their interest as a council tax payer and get a dispensation when they take part in council discussions or votes about Council Tax. (6 February 2013)

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 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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