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    Officers
   Children's Services    Police
   Economic Development    Powers and Duties
   Education    Procurement
   Equality and Discrimination    Public Health
   Bevan Brittan's Local Government Training Programme


Adult Social Services

DH: Policy statement on care and support funding reform and legislative requirements: following the Government’s announcement to implement a new funding model for adult social care, based on the recommendations of the Dilnot Commission on the Funding of Care and Support, this document sets out further detail on what the new ystem will mean and how it may be legislated for. It will support pre-legislative scrutiny of the draft Care and Support Bill. It describes the case for change, and the Government’s objectives in bringing forward these proposals for a reformed system. The second section describes how this would work for individuals and the changes that might be provided for in legislation, including where revisions might be required to the proposals set out in the draft Care and Support Bill. Provisions to enact these reforms will be included when legislation is introduced.
The new measures for funding care include, from April 2017:  
  • a  £75,000 cap on care costs; and 
  • financial support for those with assets of less than £123,000.

For a summary of the proposals, see the LGA's On the day briefing: Adult social care funding reform. (11 February 2013)

CQC: Not just a number – Home care inspection programme: National overview: presents the findings of the CQC's review of home care services that was carried out between April - November 2012. The review looked at whether people receiving care at home are treated with dignity and respect, have a choice about the care they receive and benefit from effective systems to keep them safe. The findings show that good care is being delivered, but a minority of people are affected by late or missed calls, lack of continuity of care workers, poor care planning and more. Throughout the review, the CQC found that 74 per cent of the 250 inspected services are meeting all five of the national standards it checked against. (13 February 2013)

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

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Children's Services

Care Standards Act 2000 (Extension of the Application of Part 2 to Holiday Schemes for Disabled Children) (England) Regulations 2013(SI 2013/253): holiday schemes for disabled children which provide accommodation for less than 28 days a year are currently required to register as children’s homes under the Care Standards Act 2000 and so meet certain minimum requirements and the National Minimum Standards relating to children’s homes. In light of concerns that the regulatory framework was too burdensome for these providers, the Government is proposing to bring these schemes out of the scope of the definition of a children’s home and, instead, to apply the provisions of Part 2 of the 2000 Act, with modifications, to these providers. These regulations, which come into force on 4 March 2013, provide for the regulation making powers in Part 2 of the Act to apply to the providers of these schemes, with necessary modifications. There will be further regulations that will set out the substantive requirements for the registration and conduct of these schemes, including enabling schemes to operate across a number of sites under one registration. (11 February 2013)

R (Kebede) v Newcastle City Council (Unreported) (Admin Ct): two brothers, K, applied for judicial review of the Council's decision not to provide them with university tuition fees. K were Ethiopian nationals who had been looked after by the Council after their relatives abandoned them. K claimed that the Council had a duty under s.23C(4)(b) of the Children Act 1989 to give them, as former relevant children, assistance to the extent that their welfare required it, which included their educational needs under s.24B(2). The Council claimed that the provision of such assistance was not a statutory obligation but a discretion, and that expenses to do with education did not cover tuition fees.
The court held, granting the application, that s.24B, with s.23C, placed a duty on a local authority to make a grant to the extent that a former relevant child's educational needs required it. The Council was mistaken if it believed that the provisions were discretionary. If education expenses were to be met, it did not make sense to exclude tuition fees. As a matter of ordinary, natural language, tuition fees equated to education. The two were inseparable. (15 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 Olwen Dutton.

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Economic Development

Centre for Cities: Towards a City Deals 'core package': this report looks at the Government's proposal for two elements to the next wave of City Deals: a bespoke element, reflecting specific city needs, backed up with a ‘Core Package’ of powers that will be offered to every city in recognition of the common challenges that most cities face when trying to support economic growth. This discussion piece aims to stimulate debate about how the Core Package can most effectively enable economic growth by setting out a range of policies.
See also Centre for Cities: City Deals – Insights from the Core Cities, which summarises Wave 1 cities' views on the City Deals process so far, including the achievements of City Deals, difficulties experienced with City Deals, their messages for the Government and their advice for Wave 2 cities. (15 February 2013)

Cabinet Office: Deputy Prime Minister launches more City Deals: Nick Clegg has announced that all of the second wave cities seeking to secure a City Deal with Government have been given the go-ahead to negotiate a finalised deal. The cities will now enter negotiations with the Government to finalise their Deals on a “staggered timeline”, a process which is expected to conclude by the end of the year. This press release gives details of the 20 Wave 2 outline proposals. (19 February 2013)

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

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Welsh Government: The draft Healthy Eating in Schools (Nutritional Standards and Requirements) (Wales) Regulations: seeks views on proposed regulations to ensure that all maintained schools in Wales provide food and drink that complies with statutory standards. The regulations will apply to breakfast, lunch, drinks and other food provided in all maintained schools in Wales during the school day. The consultation closes on 25 April 2013. (31 January 2013)

DfE: Review of 2013–14 School Funding Arrangements: following concerns over the impact of the new school funding arrangements, the DfE is carrying out a review as to whether and to what extent it needs to make small changes in 2014-15. This paper summarises how the 2013-14 funding arrangements have been implemented and seeks views on some specific concerns that have been raised. Comments are required by 26 March 2013. (12 February 2013)

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

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Equality and Discrimination

Equality and Human Rights Commission: Religion or belief in the workplace – A guide for employers following recent European Court of Human Rights judgments: on 15 January 2013, the ECtHR published its judgments in four combined cases about religious rights in the workplace (Eweida v United Kingdom [2013] ECHR 37). The judgment affects employer responsibilities for policies and practices protecting religion or belief rights in the workplace, the rights of employees (including job applicants) and the rights of customers. The judgments may be referred to the Grand Chamber of the European Court of Human Rights but in the meantime, the Commission has published new guidance that includes a selection of examples of requests and how employers might deal with them. 
See also Religion or Belief in the workplace: an explanation of recent European Court of Human Rights judgments and the Questions and Answer section that addresses some key employer questions. (14 February 2013)

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

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Council Tax Reduction Schemes (Transitional Provision) (England) Regulations 2013 (SI 2013/215): these regulations, which come into force on 6 March 2013, set out the transitional arrangements for the new localised council tax support schemes which come into effect, replacing council tax benefit, on 1 April 2013. (12 February 2013)

Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2013 (SI 2013/216 (W.28)): these regulations, which come into force in Wales on 28 February 2013, set out how a billing authority and a major precepting authority in Wales are to calculate their budget requirements for a financial year and how a billing and a major precepting authority in Wales are to calculate the basic amount of their council tax. The amendments take effect for financial years beginning on or after 1 April 2013. (6 February 2013)

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

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DCLG: Draft amendment regulations removing the requirement for a Designated Independent Person to investigate allegations of misconduct by senior officers: Paul Rowsell, DCLG Deputy Director - Democracy has written to local government bodies such as LGA, SOLACE, ACSeS  and CIPFA, seeking views on draft Local Authorities (Standing Orders) (England) (Amendment) Regulations 2013 that amend SI 1993/202 and SI 2001/3384 by removing the requirement to appoint a DIP where a local authority decides to take disciplinary action against the Head of Paid Service, Monitoring Officer or Chief Finance Officer; instead, such dismissal must be approved by full Council. The consultation closes on 14 March 2013. (14 February 2013)
To date, the letter and draft regulations have not been published on the DCLG website. Please contact DCLG or one of the above organisations if you would like a copy. See also the DCLG press release.

DCLG: Openness and accountability in local pay – Guidance under section 40 of the Localism Act 2011: Supplementary guidance: this guidance supplements the 2012 Pay Accountability Guidance on the requirement to publish pay policy statements under Part 1 Chapter 8 of the Localism Act 2011. The 2012 guidance advised local authorities to have a full vote on hiring officers set to earn pay deals above £100,000. In this new guidance, smaller councils that paid less can set lower thresholds, while all should provide public justification for big bonuses and above-inflation pay rises. The guidance must be taken into account by authorities in England when preparing their pay policy statements for 2013 to 2014 and subsequent financial years. (20 February 2013)

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

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Home Office: Radical package of police reforms announced: announces a number of new measures designed to ensure the highest standards of integrity in policing, including:

  • expansion of the role of the Independent Police Complaints Commission to deal with all serious complaints against the police;
  • national registers of chief officers' pay packages, gifts and hospitality, second jobs, and their media contact;
  • a new code of ethics for officers of all ranks; and
  • a national register of officers struck off from the police.  

(12 February 2013)

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

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Powers and Duties

R (London Jewish Girls' High Ltd) v Barnet LBC (Unreported) (QBD): LJG, a registered charity set up to further the Jewish education of girls of high school age, applied for judicial review of the Council's decision to sell a derelict site to developers, M, for residential development. LJG had to vacate its current premises and had attempted to buy the site to use as a permanent school, but was unsuccessful. The Council then negotiated to sell the site to M for a cash price of £2.8m plus overage payments to be calculated, conditional on M being able to secure planning permission for a residential development scheme of at least 100 units.  The district valuer advised that this offer was the best available to the Council. LJG then submitted a bid for £3.5m. The Council's Cabinet Resources Committee resolved to complete the sale to M. A valuer then advised that although LJG's offer was higher, it did not include any overage payments and the council decided to proceed with the sale to M. LJG applied for judicial review, submitting that the decision to sell to M would breach s.123(2) LGA 1972 as it prevented the disposal of land for a consideration less than the best that could reasonably be obtained.
The court held, dismissing the application, that "consideration" in s.123(2) referred to the price payable for the land, which could consist simply of the sum of money offered for the land or part of such a sum and in part other elements such as rights in the nature of easements or a right to repurchase reserved to the selling authority, provided such elements had a commercial or monetary value capable of assessment by experts. It did not include elements which were not capable of having a commercial or monetary value to the local authority.  Although there were could be some criticism of the decision-making process, the Council's decision was lawful. M's offer was clearly the better of the two on the table and the Council would have been in breach of its duty if it had decided not to sell to M. (20 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 Peter Keith-Lucas

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Cabinet Office: Procurement Policy Note – Supplier financial risk issues (Information Note 02/13): this PPN gives advice on carrying out an assessment of potential providers' financial or economic standing as part of a procurement exercise. It stresses that all such assessments should be undertaken in a manner that is proportionate, flexible and not overly-risk averse while ensuring taxpayer value and safety is protected and the relevant EU procurement law is complied with. Financial standing should only be considered as part of the overall selection criteria; it may not, on its own, reflect potential providers’ ability to deliver. (13 February 2013)

DBIS: Directive 2011/7/EU on combating late payment in commercial transactions – Government response to consultation: sets out how the Government proposes to implement the new Late Payments Directive 2011/7. The Government will retain the current 30 day payment period for public authorities and will not extend it to 60 days; it will also retain the current three tier compensation payment of £40, £70 or £100, depending on the size of the debt, rather than change to the Directive's minimum €40 (approximately £31). The Government will transpose the Directive by amending the Late Payment of Commercial Debts (Interest) Act 1998. The amending Regulations will be laid before Parliament on 22 February 2013 and enter into force on 16 March 2013. The changes will not apply to contracts concluded before 16 March 2013. (20 February 2013)

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

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Public Health

District Councils' Network: District action on public health – How district councils contribute towards the new health and wellbeing agenda in local government: this publication discusses how district councils can play an important role in the new public health system and help to deliver lasting improvements to health outcomes and reductions in health inequalities. It includes a number of best practice case studies of service delivery and public health collaboration in two-tier areas. (11 February 2013)

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 (SI 2013/351): these regulations, which come into force on 1 April 2013, provide for the steps to be taken by local authorities in exercising certain public health functions and the making and recovering of charges in respect of their public health functions. Part 2 of the regulations imposes duties on local authorities to exercise prescribed public health functions of the Secretary of State and to take prescribed steps in exercise of public health functions of their own, in particular their duty as to the improvement of public health. The regulations also prohibit local authorities from charging individuals for anything which is done for the purpose of improving that individual’s health, and for anything which the local authority is required to do in exercise of its public health functions under Part 2 of this SI. (18 February 2013)

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

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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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