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    Fire and Rescue Authorities
   Anti-Social Behaviour    Legislation
   Audit    Maladministration
   Children's Services    Police
   Delivery of Services    Powers and Duties
   Development Control    Public Health
   Education    Regulatory Services
   Bevan Brittan's Monitoring Officer Community of Interest Scheme


Adult Social Services

DH: Statement of government policy on adult safeguarding: this document provides an update on the Government’s policy on safeguarding adults vulnerable to abuse and neglect. It includes the statement of principles for Local Authority Social Services and housing, health, the police and other agencies to use, for both developing and assessing the effectiveness of their local safeguarding arrangements. It also describes the outcomes for adult safeguarding, for both individuals and organisations and outlines the next steps that Government is taking. (8 May 2013)

DH: Government response to the Safeguarding Power of Entry consultation: sets out the Government's response to the July 2012 consultation that sought views as to whether or not a specific power of entry for adult safeguarding (for a social worker and police officer to enter someone’s home by means of a warrant) would be an effective, proportionate and appropriate way to support the duty in the draft Care and Support Bill to make enquiries where they suspect that an adult with care and support needs is at risk of abuse or neglect. In light of the responses, the Government has concluded that there is not a compelling case to legislate for a new power of entry so it will not be adding a safeguarding power of entry to the Care and Support Bill. (10 May 2013)

Care Bill: this Bill has been introduced into the Lords and received its 1st Reading. The Bill is in three parts:

  • Reform of care and support: implement the recommendations of the Dilnot Commission and the Law Commission on consolidating and modernising existing care and support law. It sets out new rights for carers, emphasises the need to prevent and reduce care and support needs, and introduces a national eligibility threshold for care and support. It also introduces a cap on the costs that people will have to pay for care and sets out a universal deferred payment scheme so that people will not have to sell their home in their lifetime to pay for residential care.
  • Response to the Francis Inquiry on Mid-Staffordshire Hospital: helps deliver the Government’s commitment to ensure patients are the first and foremost consideration of the system and everyone who works in it. It sets out Ofsted-style ratings for hospitals and care homes so that patients and the public can compare organisations or services in a fair and balanced way and make informed choices about where to go. The new Chief Inspector of Hospitals, appointed by the Care Quality Commission, will be able to trigger a process to deal with unresolved problems with the quality of care more effectively. It also makes it a criminal offence for health and care providers to supply or publish false or misleading information.
  • Health Education England and the Health Research Authority: establishes Health Education England (HEE) and the Health Research Authority (HRA) as statutory non-departmental public bodies and provides for their roles in improving education and training for healthcare professionals, and protecting the interests of people in health and social care research.

The DH has published a number of factsheets that explain different areas of the Bill. 
See also The Care Bill explained that describes the changes that have been made in response to the public consultation and the recommendations of the Joint Committee that carried out pre-legislative scrutiny on the draft Care and Support Bill. (10 May 2013)

DH: Integrated care and support – Our shared commitment: this framework document on integration, signed by 12 national partners, sets out how local areas can use existing structures such as Health and Wellbeing Boards to bring together local authorities, the NHS, care and support providers, education, housing services, public health and others to make further steps towards integration.
See also National Voices's Narrative for Person-Centred Coordinated Care that sets out an agreed definition of what ‘integrated’ care means. It provides a guide to the sort of things that integrated care will achieve, such as better planning, more personal involvement of the person using services, and free access to good information. It also provides some clarity over what local areas should be aiming to achieve practically, in their efforts to integrate services.
The DH has also written to local areas inviting them to express an interest in becoming ‘integration pioneers’, demonstrating the use of ambitious and innovative approaches to delivering integrated care. The pioneers will work across the whole of their local health, public health and care and support systems, and alongside other local authority departments as necessary, to achieve and demonstrate the scale of change that is required. The closing date for Expressions of Interest is 28 June 2013. (14 May 2013)

DH: Adult social care – Choice framework: choice frameworks are part of the Cabinet Office’s Open Public Services agenda, and are designed to raise awareness of the choices available in a number of individual public services, such as health and education. This framework sets out the different choices people are able to make in relation to their care and support as at April 2013, including:

  • the right for people, including carers, to control the services they use;
  • the right to choose residential care accommodation that suits them; and
  • the right to access and receive information to inform choice.

It also sets out where people can access further information, and how to complain if they are not offered choice.It will be updated when the new policies in the Care Bill take effect. (15 May 2013)

SL v Westminster City Council [2013] UKSC 27 (Sup Ct): the Council appealed against the Court of Appeal's decision that it was required to provide SL with accommodation under s.21(1)(a) of the National Assistance Act 1948. SL was a failed asylum seeker who had been granted indefinite leave to remain in the UK. He was admitted to a psychiatric hospital where he was diagnosed as suffering from depression and post traumatic stress disorder. On his discharge, the Council provided him with assistance in the form of weekly meetings with a care coordinator, W, but refused to provide him with accommodation on the basis that he was not in need of care and attention within the meaning of s.21(1)(a), and therefore they owed him no duty under that subsection to provide residential accommodation. The CA held that SL was at all material times in need of care and attention within s.21(1)(a), subject to the interpretation of "not otherwise available".
The Supreme Court held, allowing the appeal, that the Council was entitled to find that the "care and attention" provided to SL was "available otherwise than by the provision of accommodation under s.21". The need had to be for care and attention which was not available otherwise than through the provision of accommodation so the care and attention had to be accommodation-related, i.e. it had at least to be care and attention of a sort which was normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home. Authoritative guidance on the meaning of the expression "care and attention" was given in R (M) v Slough BC [2008] UKHL 52; the Lords stated in that case that care and attention involved "doing something for the person which he cannot or should not be expected to do for himself"  and it would be wrong to elevate those words into a compendious statement of all the elements of the "care and attention" or "looking after" concept. What was involved in providing "care and attention" must take some colour from its association with the duty to provide residential accommodation. It could not be confined to care and attention that could only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who were deemed to need care and attention strongly indicated that something well beyond mere monitoring of an individual's condition was required. Here, W's services to SL were in no sense accommodation-related and the care and attention could be, and was, provided independently of SL's need for accommodation or its location. (9 May 2013) 

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

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Anti-Social Behaviour

Anti-Social Behaviour, Crime and Policing Bill: this Bill introduces simpler, more effective powers to tackle anti-social behaviour that provide better protection for victims and communities. The new Community Trigger and Community Remedy will empower victims and communities, giving them a greater say in how agencies respond to complaints of anti-social behaviour and in out-of-court sanctions for offenders. The Bill will also tackle irresponsible dog ownership and the use of illegal firearms by gangs and organised criminal groups, strengthen the protection afforded to the victims of forced marriage, and enhance the professional capabilities and integrity of the police. 
For full details and background documents, see the Home Office website. (9 May 2013)

Welsh Government: Written Statement – The Draft Control of Dogs (Wales) Bill: announces that, in light of DEFRA's proposals to amend the Dangerous Dogs Act to make it an offence for dogs to be out-of-control on private premises and provide protection for assistance dogs, the Welsh Minister for Natural resources and Food has decided to suspend further work on the Control of Dogs (Wales) Bill. Instead, he will work with the UK Government on a a joint collaborative approach. (9 May 2013)

Home Office: Empowering communities, protecting victims – Summary report on the community trigger trials: the “community trigger” gives victims and communities the right to demand that agencies deal with persistent anti-social behaviour.  The trials tested the community trigger to ensure that it could help those victims who need it most. The trials also explored ways to implement the community trigger without imposing unnecessary bureaucracy or unanticipated burdens on agencies or businesses. This report included a description of each community trigger and how agencies responded. (9 May 2013)

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

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Local Audit and Accountability Bill: this Bill has been introduced into the Lords and received its 1st Reading. The Bill abolishes the Audit Commission and establishes new arrangements for the audit and accountability of local public bodies. It amends the legislative framework for council tax referendums to provide that increases set by levying bodies are taken into account when local authorities determine whether they have set an excessive amount of council tax each year. It also amends s.4 of the Local Government Act 1986 to ensure local authority compliance with the Code of Recommended Practice on Local Authority Publicity. (10 May 2013)
There is also a Plain English guide to the Bill.

DCLG: Future of local public audit – Report prepared by FTI Consulting Limited: this advice was prepared for DCLG in 2011 on three options for the transfer to the private sector of the Audit Commission's in-house practice. It includes a high level summary assessment of the likely impact on the audit market of the three scenarios in terms of potential effects on public sector audit fees and the concentration, level of competition and contestability of the local public audit market. The advice was initially judged to be commercially sensitive and so likely to prejudice the achievement of value for money for taxpayers if made public; it has been made available now that the transfer of the Audit Commission’s in-house audit practice has taken place. (16 May 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 Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013 (SI 2013/984): these regulations, which come into force on 1 July 2013, amend the Care Planning, Placement and Case Review (England) Regulations 2010 SI 2010/959), which make provision about care planning for looked after children. They also amend the Fostering Services (England) Regulations 2011 SI 2011/581), which provide a regulatory framework for fostering service providers and make provision about matters including the approval of foster parents by fostering service providers. (7 May 2013)

Adoption Agencies (Miscellaneous Amendments) Regulations 2013 (SI 2013/985): these regulations, which come into force on 1 July 2013, amend the Adoption Agencies Regulations 2005 (SI 2005/389) by substituting a new Part 4 (Duties of Adoption Agencies in Respect of a Prospective Adopter) that introduces a new two-stage approval process. In particular, these regulations introduce time limits for the adopter approval process with Stage One (the pre-assessment process) being limited to two months and Stage Two (the assessment decision) taking four months. They also introduce a fast-track process to allow certain previous adopters or foster parents to proceed straight to Stage Two and receive a tailored assessment. (7 May 2013)

DfE: Funding for foster care recruitment boost unveiled: announces a new £750,000 package of support to help local authorities attract and retain more foster carers from a wider range of backgrounds. it includes funding for three partnerships between local authorities and independent fostering services to explore new ways of recruitment and retaining a wider group of foster carers. (16 May 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

LGA: Spending Round submission: in advance of the Government's announcement on 26 June 2013, the LGA has submitted to the Treasury and other central government departments its final submission to the 2015/16 Spending Round. The submission maps the likely impact on local services if the next Spending Round were to deliver a 10 per cent cut to the funding that an average upper-tier council receives from central government, and sets out specific proposals for change that would help secure public services for the future. The analysis shows that the current financial position of most councils is unsustainable in the medium to long term. It warns that unless steps are taken to fix local government's current financial instability, councils will start to fail their communities because they will no longer be in a position to provide key services. The LGA is calling on the Government to take a number of steps in the 2015/16 Spending Round to ensure vital local services are not placed on the endangered list; in particular it calls for the removal or adjustment of ringfencing from health and schools budgets. (9 May 2013)

MoJ: The development and Year One implementation of the Local Justice Reinvestment Pilot: the Local Justice Reinvestment (LJR) Pilot is testing the extent to which local partners in six pilot sites can be incentivised to work together more effectively to tackle crime and reduce reoffending. These partners receive a financial reward if they reduce adult demand on criminal justice services by 5% or more and youth demand by 10% or more in each of the two test years, measured against the baseline period. This report focuses on the initial findings from a process evaluation of the Pilot and examines the early development and implementation of the pilot in the first test year. (13 May 2013)

Cabinet Office: Open Public Services 2013 update: the Open Public Services White Paper set out the Government’s approach to reforming public services, based on the principles of choice, diversity, accountability, decentralisation and fair access. This update reports on progress in modernising education, health, local government and other public services. (16 May 2013)

Cabinet Office: Choice Charter: the Government has highlighted choice as one of the core principles for open public services. This Charter sets out government principles to increase choice in public services and what users should receive from their services. (16 May 2013)

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

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Development Control

DCLG: Ministerial statement – Planning: promoting regeneration: announces that the Communities Secretary has laid secondary legislation before Parliament to amend the Town and Country Planning (General Permitted Development Order) 1995. The changes will: bring empty and underused buildings back into productive use; make it easier to bring forward suitable buildings for state-funded schools; allow business and families to extend and improve their premises and homes without the expense of moving; and facilitate delivery of superfast broadband. These measures also implement recommendations from Mary Portas’ review to reduce restrictive ‘change of use’ red tape. The amending regulations are the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 (SI 2013/1101), in force 30 May 2013. (9 May 2013) 

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

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DfE: Governors' handbook: provides information about the role and legal duties of governing bodies in maintained schools and academies, including free schools. It replaces the Governors’ Guide to the Law. (14 May 2013)

Ofsted: The framework for the inspection of local authority arrangements for supporting school improvement: this framework constitutes the basis for the inspections of local authority arrangements for supporting school improvement in schools, and the education of children and young people from May 2013, under s.135 and s.136(1)(b) of the Education and Inspections Act 2006.
There is also a Handbook for the inspection of local authority arrangements for supporting school improvement that provides instructions and guidance for inspectors conducting inspections under s.136(1)(b) of the 2006 Act. It sets out what inspectors must do and what local authorities can expect, and provides guidance for inspectors on making their judgements. (14 May 2013)

DfE: Schools choice framework: choice frameworks are part of the Cabinet Office’s Open Public Services agenda, and are designed to raise awareness of the choices available in a number of individual public services, such as health and education. This guide explains how to express school choice, where to access information to make that choice and the school admissions process. (16 May 2013)

DfE: Funded early education choice framework: this guide explains how a child can take up a funded early education place, what information is available to parents and how to complain. (16 May 2013)

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

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Fire and Rescue Authorities

DCLG: Protocol on Government intervention action on fire and rescue authorities in England – Summary of responses: in September 2012 DLG consulted on revising the protocol on government intervention action for fire and rescue authorities in England. This document summarises the responses received.
It has also published its response to the consultation on light-touch guidance on statements of assurance for fire and rescue authorities in England. (14 May 2013) 

DCLG: Facing the future – Findings from the review of efficiencies and operations in fire and rescue authorities in England: Sir Ken Knight, the outgoing Chief Fire and Rescue Adviser, was asked to conduct an independent review of efficiency in the provision of fire and rescue in England. This report presents his findings. It highlights the scope for the fire and rescue services to find millions in savings whilst safeguarding emergency operations and protecting public safety. He found that there are huge variations between how the 46 English fire authorities operate, with the cost per head of providing a service almost double in some areas to that in others. In particular, each had their own management structures, senior leaders and operational differences, which often led to widespread duplication of the design, commissioning and evaluation of fire-specific products and demonstrates the potential for much closer co-operation and reconfiguration of services. (17 May 2013)

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

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Queen’s Speech 2013: the Queen has outlined the Coalition Government’s legislative programme for the next year, on the State Opening of Parliament. Bills of particular interest to local government include:

  • Local Audit and Accountability Bill: closes the Audit Commission, makes new arrangements for the audit of local public bodies and increases local accountability by strengthening the legal status of the existing Code of Recommended Practice on Local Authority Publicity. For more information, see under Audit (above) and the DCLG press release;
  • Anti-Social Behaviour, Crime and Policing Bill: contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used by gangs and in organised crime – see under Anti-social Behaviour (above);
  • Care Bill: reforms the way long term care is paid for, to ensure the elderly do not have to sell their homes to meet their care bills, including creating a cap on care costs, extending the means test threshold for financial assistance and ensuring no-one has to sell their home in their lifetime to pay for residential care. It will modernise the law so that it prioritises the well-being of individuals and enables all those needing health and social care to get good care. It will also introduce a number of measures in response to the Francis Inquiry, including a ratings system for hospitals and care homes. For more information, see under Adult Social care (above);
  • Immigration Bill: reforms immigration law, including provisions to strengthen enforcement powers and protect public services. Private landlords will be required to check the immigration status of their tenants and councils will have to give priority to local people when allocating their social housing – see the DCLG press release;
  • Draft Deregulation Bill: reduces or remove burdens on businesses and Civil Society and facilitate growth, including:  
    • a duty to require non-economic regulators to have regard to the impact of their actions upon growth; 
    • reducing the qualifying period for Right to Buy and Right to Acquire from five years to three years; 
    • exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others; 
    • removing a power for employment tribunals to make wider recommendations in successful discrimination cases under the Equality Act 2010.
  • Draft Wales Bill: makes a number of changes to the electoral arrangements for the National Assembly for Wales.

The Speech also announces help with childcare for working parents, reform of the National Curriculum and a new style exam system, changes to teachers' pay, and traineeships scheme for school leavers.
Five Bills from the 2012-13 Parliamentary session, including the Children and Families Bill, are carried over to the 2013-14 session, i.e. they resume progress in the new session without having to start the Parliamentary process afresh.
For further details, see the Government's briefing notes and the LGA's On the day briefing. (8 May 2013)

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

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LGO: External evaluation of the Local Government Ombudsman in England: this independent report was commissioned by the LGO in response to a recommendation of the CLG Select Committee in 2012. The review, chaired by Richard Thomas, was asked to consider the extent to which the LGO’s complaint-handling operations meet the Criteria for Membership of the Ombudsman Association. The review concludes that in a short space of time, the LGO has restructured itself in an impressive fashion. The report identifies a few areas where further progress could be made, but finds that the underlying business model now being applied is a strong one. The major challenges now for the LGO are to make sure the new model works in practice, to raise its profile, to introduce immediate structural and governance changes on a non-statutory basis and to work with the Government and Parliament to secure appropriate amending legislation to ensure that the LGO operates within the strongest possible legal framework. (29 April 2013)

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

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Home Office: Riot (Damages) Act 1886: announces that the Home Secretary has commissioned an independent review of the Riot (Damages) Act 1886. This will be led by Neil Kinghan and is expected to conclude by the end of September 2013. The review will examine the existing criteria which determine when compensation is payable under the Riot (Damages) Act. This includes looking at key issues involving the definition of a riot, who should be liable and what level of entitlement should be afforded under the Act. (9 May 2013)

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

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Powers and Duties

DCLG: Sustainable Communities Act 2007 – Government Response to consultation on proposal for extending powers to town and parish councils: local authorities which find that a bureaucratic barrier prevents them from taking action may, after consultation and with the agreement of their local communities, submit a formal ‘proposal’ under the Sustainable Communities Act 2007 asking Government to remove the barrier. In June 2012 DCLG issued a consultation on whether these existing arrangements for submitting barrier busting proposals were appropriate or whether town and parish councils should be able to submit such proposals independently of their local authority. This document sets out the Government's response to the consultation. It states, in light of the responses, the existing legislation will be extended to town and parish councils. The new legislation will help local people to work with town and parish councils to consider key issues of concern,  giving town and parish councils the incentive to work with their communities to explore opportunities for improving local sustainability and encouraging local citizens to become more involved in the democratic decision-making. The Government will ensure that the proposed new arrangements will be robust enough to address the specific concerns about the risk of greater bureaucracy and duplication in the process. It will also work with key partners to engage local councils properly at all levels in implementing these changes. (13 May 2013) 

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

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Public Health

DH: £10 million funding for hospital aftercare for the homeless: announces the £10m Homeless Hospital Discharge Fund 2013 to 2014 that will support voluntary organisations to work with the NHS and local authorities to create services to ensure that homeless people receive the best possible support and care after leaving hospital. The application form, guidance and eligibility criteria for voluntary sector organisations are on the DH website. (13 May 2013)

DH: Protecting the health of the local population – The new health protection duty of local authorities under the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013:  explains local authorities' new duty in line with the final Regulations made under s.6C NHS Act 2006 (SI 2013/351), which came into force on 1 April 2013. (17 May 2013)

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

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Regulatory Services

Welsh Government: Microchipping for all dogs in Wales by 2015: in 2012 the Welsh Government consulted on its plans to introduce compulsory microchipping for all dogs. In light of responses received that were overwhelmingly in favour of the plans, the Minster for Natural Resources has announced that he has decided to proceed with the making of regulations that will require all dogs in Wales to be microchipped by 1 March 2015. (26 April 2013)

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

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