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:  

   Access to Information    Localism Act 2011
   Adult Social Services    Powers and Duties
   Delivery of Services    Public Health
   Finance    Regulatory Services
   Housing    Standards
   Bevan Brittan's Local Government Training Programme


Access to Information

Willis v Derwentside DC [2013] EWHC 738 (Ch) (Ch D): W brought a claim against the former local authority (now part of Durham Council) for damages in nuisance and negligence arising from the escape of CO2 from disused mine workings on land adjacent to their house. That land had been transferred to the Council by the National Coal Board (NCB), subject to the Council undertaking to keep the NCB indemnified against any liability and expense in any way related to the shafts and drifts or their fillings which had not been occasioned by any mining operations. W's claim included that the Council should reimburse W for the substantial expense of appointing of their own mining expert to advise them, as the Council had refused to reveal or explain the nature and causes of the gas emissions, or the thinking behind the design of the remedial scheme.
On this issue, the court held that the Council was liable to reimburse W for their expenditure on their mining expert. The Council had refused to disclose the reports and analyses being undertaken during the design and execution of the remedial works, on advice from its legal department, apparently due to a perception that information relevant to the potential liability to the Council both to W and to the NCB should be kept confidential. Reasonable steps to abate a potentially dangerous and frightening nuisance of this type included keeping W informed of the Council's developing understanding of the cause of the problem, together with the analysis and design of the remedial works being carried out by the NCB on behalf of the Council. W were not provided with that information, and their expenditure on the obtaining of advice about those matters from the expert was a reasonable mitigation of their loss, for which they should be reimbursed. (10 April 2013)

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

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Adult Social Services

DH: Ordinary residence – Guidance on the identification of the ordinary residence of people in need of community care services, England: this guidance explains how to decide where a person is ordinarily resident for the purposes of the National Assistance Act 1948 and certain other legislation. It is applicable to local authorities with social services responsibilities and sets out how to identify where responsibility lies between authorities for the funding and/or provision of care for people aged 18 and over who are assessed as needing social care services. It has been updated to take account of the NHS reforms that came into effect on 1 April 2013. (12 April 2013)

Arlington House Ltd v Torbay Care Trust (Unreported, QBD): AH was a care home for the elderly. It had entered into an umbrella agreement with the Care Trust (T) that envisaged T placing people with it under individual care agreements. After concerns were raised about the care provided by AH, T terminated all its agreements and moved the residents. AH brought a claim against T for breach of common law duty of care, breach of contract, unlawful interference with third party agreements, and interference with its right to peaceful enjoyment of possessions under Protocol 1 art.1 EHCR. AH's allegations included that T had: failed to exercise reasonable care and skill when decommissioning the care home and removing the residents; unreasonably terminated the agreements; tortiously interfered with its agreements with the local authority and the private residents; prevented it from carrying out its business and damaged its goodwill. T applied to strike out AH's claims and for summary judgment, submitting that none of the claims had any prospect of success.
The court held, granting T's application in part, that T had not established that AH had no prospect of successfully establishing that there had been a breach of contract. It was for the trial judge to determine whether T had acted reasonably and it was appropriate for that ground to proceed. It was, however, appropriate to strike out all other elements of AH's claim. It was nonsense to suggest that T owed AH a common law duty of care when exercising its rights under the agreements, and as AH was entitled to pursue damages for breach of contract, it was wholly inappropriate to determine whether T owed a duty of care. AH had failed to properly plead the required elements for alleging that T had induced the local authority and the private residents to breach their contracts as they failed to demonstrate what provision was breached, that T was aware of the provision, or what steps T took to induce the breaches. The right of a party to performance by the other was a chose in action and it was doubtful whether on proper construction of Protocol 1 art.1, a chose in action fell within the ambit of possession, and in any event, AH was not prevented from seeking damages for breach of contract. (12 April 2013)
The judgment is available on Lawtel (password required).

HC Communities and Local Government Committee: Implementation of welfare reform by local authorities: this report looks at the impact on local authorities of the far reaching reforms to the welfare system that started to be implemented on 1 April 2013. It focuses on implementation and the part that local authorities are playing. The Committee identifies four key areas that will be crucial to the successful implementation of the changes: the need for close interdepartmental working, particularly between DCLG and DWP; working with the LGA to assess the cumulative impact of the entire programme on local authorities' resources; the cost to housing associations and local authorities of providing support and information to tenants regarding the simplification of benefits; and the readiness of ICT systems, specifically  the systems for fraud detection. (3 April 2013)

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

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Delivery of Services

DCMS: Decision letter on local inquiry into library provision in the London Borough of Lewisham: the Secretary of State has considered whether to intervene by directing an inquiry under the Museums and Libraries Act 1964 into the changes in the library provision in Lewisham LBC. This letter from Culture Minister Ed Vaizey to the Mayor of Lewisham sets out the reasons for the Secretary of State's decision not to direct a local inquiry. (15 April 2013)

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

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Council Tax (Administration and Enforcement) (Amendment No. 2) (Wales) Regulations 2013 (SI 2013/570 (W.66)): these regulations, which come into force on 1 April 2013, rpovide for the billing, collection and enforcement of council tax in Wales. They amend SI 1992/613 in relation to Wales to provide for the circumstances in which an HMRC officer may supply information to qualifying persons, and for what purposes. They also extend the application of the provisions relating to the collection of penalties, and account for the introduction of universal credit by the Welfare Reform Act 2012. (12 March 2013)

Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (Wales) Regulations 2013 (SI 2103/588 (W.67)): these regulations, which come into force on 13 March 2013, provide for the creation of offences and for powers to require information and to impose penalties in connection with council tax reduction schemes and the default scheme in Wales. (12 March 2013)

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

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DCLG: £1.7 million Gold Standard sets new homelessness benchmark: announces the £1.7m Gold Standard support and training scheme that will showcase the very best services across the country and ensure that homelessness remains the last possible option. The scheme will be delivered by the National Practitioner Support Service Team and hosted by Winchester City Council (receiving £1.3m) with the National Homelessness Advice Service (receiving £700,000) providing technical and training support. It will provide a host of free training and support to help local authority housing options teams learn from each other and gain Gold Standard status. The first 10 councils to receive Gold Standard Status will then offer advice and a critical eye to other councils looking to achieve the same. Applications for the scheme will open on 1 May 2013. (9 April 2013)

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

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Localism Act 2011

Localism Act 2011 (Commencement No. 9) Order 2013 (SI 2013/797 (C.38)): this Order brings the remaining provisions of s.116 and 121 of, and Schs.9 to 12 to, the 2011 Act (neighbourhood planning) into force on 6 April 2013. It also brings s.67 and Sch.15 (abolition of the HRA subsidy) into force on 1 October 2013. (5 April 2013)
This is the 14th Commencement Order made under the 2011 Act. For a full list of all the Orders showing the commencement date(s) for each section, see Bevan Brittan's Localism Act 2011 Commencement Table.

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

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R v Cosford, Falloon and Flynn [2013] EWCA Crim 466 (CA): three nurses appealed against their convictions for misconduct in public office, for which they had been sentenced to imprisonment. The issue on appeal was whether they held a public office. The court held, dismissing their appeals, that the existence or otherwise of a public office was for the judge to decide. The responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting were not only for the welfare of the prisoners (their patients); they were also responsible to the public for the proper, safe and secure running of the prison in which they worked. Their duties more than amply fulfilled the requirements of a public office. Whether the prison was run directly by the state or indirectly through a private company paid by the state to perform this function did not alter the public nature of the duties of those undertaking the work: the responsibilities to the public were identical. (16 April 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

DCLG: Protecting the independent press from unfair competition: seeks views on proposals to give the Secretary of State power to direct English authorities to comply with some or all of the Code of Recommended Practice on Local Authority Publicity. It asks for comments on how best to frame the new legislation to stop politically contentious advertising campaigns, municipal newspapers and the hiring of lobbyists by councils. The consultation closes on 6 May 2013. (8 April 2013)
Bevan Brittan has issued an Alert that highlights the significant issues raised by this consultation: DCLG seeks power to direct local authorities’ compliance with Publicity Code.

Welsh Government: Revised Code of Recommended Practice on Local Authority Publicity: seeks views on a draft revision of the Publicity Code that provides guidance on the content, style, distribution and cost of local authority publicity. Welsh local authorities are required by legislation to have regard to the Code in coming to any decision on publicity, which is defined as any communication, in whatever form, addressed to the public at large or to a section of the public. The Welsh Code has been updated to reflect changes that have occurred since it was published in 2001 so that it refers to relevant statutory provisions and to exclude the publication of annual reports by elected members imposed by the Local Government (Wales) Measure 2011 from the operation of this Code. The draft revised Code also adds guidance on council newspapers and on filming and broadcasting council meetings. The consultation closes on 14 June 2013. (22 March 2013)

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

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Public Health

HC Communities and Local Government Committee: The role of local authorities in health issues: this report examines the return to local government of the responsibility to improve the health and wellbeing of local people that came in from 1 April 2013. The Committee urges councils to fully grasp this opportunity by using every lever at their disposal to adopt a holistic approach to public health. The report also raises concerns over the complex accountability mechanisms of the reformed system. In particular, it argues it is not clear who will be in charge in the event of a health emergency and urges the Government to set out clearly and unambiguously the lines of responsibility. Finally, the Committee notes a perverse incentive in the funding formula and calls for it to be reviewed. (27 March 2013)

DH: The Arrangements to be made by Relevant Bodies in respect of Local Healthwatch Organisations Directions 2013: these Directions, which come into force on 1 April 2013, mirror those for previous Local Involvement Networks (LINks), to require that local authority contracts with independent care providers allow local Healthwatch authorised representatives to enter and view premises. (11 April 2013)

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

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Regulatory Services

DEFRA: Dangerous dogs law changes cover attacks on private property: announces the publication of the draft Dangerous Dogs (Amendment) Bill that extends the law on dangerous dogs so that owners can be prosecuted if they fail to stop their dogs attacking someone on their own or someone else’s private property. If convicted, they could face an unlimited fine and/or up to two years in jail. However, there will be no protection for trespassers such as burglars who are attacked by a householder’s dog. The draft clauses also make it clear that dangerous dogs legislation covers attacks on guide dogs and other assistance dogs. (9 April 2013)

DBIS: New fund will help regulators and business work together for growth: the Business Minister has invited local authorities to bid for a share of the new Regulatory Innovation for Growth fund that will provide up to £20,000 per project to support innovative new ways of enforcing regulation. Proposals must be based on closer working relationships with businesses, helping firms comply with essential requirements without burdening them with bureaucracy. The closing date for bids is 29 May 2013. (15 April 2013)

DBIS: Business-friendly regulation scheme extended: under the Primary Authority scheme, firms forge partnerships with a single local authority to ensure that regulation is consistently applied across local authority boundaries. DBIS has now announced that, following consultation, the Government is to extend the scheme to the following sectors: the age-restricted sale of gambling; the Housing Health and Safety Rating System; sunbed tanning; and Welsh regulations on single use carrier bag charging. The Government is also extending Primary Authority to small firms that follow advice from business organisations such as trade associations. (16 April 2013)

DEFRA: Draft Wild Animals in Circuses Bill: this draft Bill proposes to make it an offence for any circus operator to use a wild animal in performance or exhibition in a travelling circus in England. Circus operators will have a "grace period" until 1 December 2015 to remove any wild animals from their circus before the offence comes into force. The Government will introduce the Bill into Parliament as soon as the legislative programme allows. In the meantime, anyone in England operating a travelling circus with wild animals must be licensed under the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012; all those training and exhibiting such animals must be registered with the appropriate local authority under the Performing Animals (Regulation) Act 1925. (16 April 2013) 

Kingsley v Secretary of State for Communities and Local Government (Unreported, Admin Ct): K, a property developer, applied for an interim injunction to prevent the local authority from further exercising its powers under s.78 of the Building Act 1984. The independent buildings inspector had advised the authority that, because of safety concerns, he was unable to continue to oversee compliance with building regulations at K's site. The local authority notified K that because there was no inspector in place, the works were unauthorised and it issued K with a s.78 notice which allowed the local authority to take steps to remedy any dangers that the work posed and which identified block work on the site as not conforming to building regulations and as potentially harmful to footpath users. K did not formally appeal against the s.78 notice.
The court held, refusing K's application, that  although there had been no properly issued proceedings in relation to the s.78 matter, the court was not prevented from granting interim relief. There was no statutory appeal in relation to a s.78 notice but the section did provide for compensation in situations where the power had not been properly exercised. Nevertheless, it seemed that where a local authority sought to exercise its powers improperly the High Court had jurisdiction to entertain a judicial review claim and a claim for an interim injunction. An interim injunction could only be granted if there was a substantial issue to be tried and that necessitated the court being satisfied of improper conduct or bad faith on behalf of the local authority. Here, although K had raised serious allegations, there was not enough evidence to found an allegation of bad faith. Accordingly, there was not a serious issue to be tried that warranted the grant of an interim injunction. Considering the safety concerns that had been raised, the local authority would not be prevented from exercising its s.78 powers. (17 April 2013)
The judgment is available on Lawtel (password required).

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

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House of Commons Library: Local government – The standards regime in England: this briefing paper gives a summary of the new standards arrangements under the Localism Act 2001, that replaced the ethical framework introduced by the LGA 2000. (16 April 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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