Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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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||Members|
|Adult Social Services||Overview and Scrutiny|
|Anti Social Behaviour||Powers and Duties|
|Children's Services||Public Health|
|Bevan Brittan's Monitoring Officer Community of Interest Scheme|
ICO: Dealing with vexatious requests (section 14) – Freedom of Information Act: revised guidance on when an FOI request can be refused as vexatious under s.14(1) FOIA 2000, bringing greater clarity to one of the three circumstances under which an entire request can be rejected. Earlier this year, the Upper Tribunal took the view that the ordinary dictionary definition of the word "vexatious" was of limited use in the context of FOI requests, prompting their alternative suggestion of “a manifestly unjustified, inappropriate or improper use of a formal procedure”. Much of the guidance focuses on what is meant by the term, and more specifically, what a public authority should do to satisfy itself that a request is vexatious. It includes a list of typical key features of a vexatious request. (15 May 2013)
DBIS: Shakespeare Review – An independent review of public sector information: report of the review led by Stephan Shakespeare, the Chair of the Data Strategy Board, that explores the growth opportunities of, and how to widen access to, the wealth of information held by the public sector. It makes nine recommendations to government that fall into five basic themes:
The Government will publish its response to the review in summer
2013. (15 May 2013)
The review is supported by a Market assessment of Public Sector Information, produced by Deloitte, which forms the evidence base for the report.
National Health Service Commissioning Board (Payments to Local Authorities) Directions 2013: these Directions and explanatory note concern the transfer of £859m in the financial year 2013 to 2014 from the NHS to local authorities for social care. This funding, which was announced as part of the Spending Review and in the Care and Support White paper, must support adult social care services in each authority, which also have a health benefit. The local authority and CCGs must agree together how to use the money. The Directions came into force on 1 April 2013 and should be read together with the conditions relating to payments between NHS bodies and local authorities. (17 May 2013)
EHRC: Guidance on human rights for commissioners of home care: this guide aims to help local authority elected members and staff who are involved in the commissioning and procurement of home care better understand their obligations under the Human Rights Act 1998. It follows the Commission's in-depth formal Inquiry into the human rights of older people in home care which found although many were satisfied with their care, human rights breaches had a severe impact on others. These included physical and financial abuse, disregarding privacy and dignity, failing to support them with eating and treating people as if they were invisible. It revealed that whilst some local authorities were driven by quality when commissioning home care, most were not making the most of the scope they have for promoting and protecting older people's human rights. (23 May 2013)
Birmingham City Council v James  EWCA Civ 552
(CA): J appealed against the grant of a gang-related
injunction to the Council under s.34 of the Policing and Crime Act
2009 that prohibited him from entering a prescribed area
of Birmingham save for certain limited purposes, and from
associating with 19 named persons or gathering with them in any
public place within the city. J contended that the judge had
been wrong to find that J had engaged in gang-related violence
at a carnival as there was no evidence that he had engaged in
or deliberately encouraged violence of any kind at the
carnival. He argued that the acts to which s.34(2) referred
all required mens rea. J also contended that the judge
was wrong to hold that it was necessary to grant an
injunction because the alternative remedy of an ASBO was
available, which would have been equally efficacious and less
disadvantageous to J.
The court held, dismissing J's appeal, that it was not helpful to introduce the concept of mens rea into s.34(2). Although the section was clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it could be held in some cases to apply to inadvertent encouragement. However, the question did not arise in this case as the evidence fully supported the judge's finding that the group, including J, was actively and deliberately engaged in gang-related violence. Part 4 of the Police and Crime Act 2009 represented Parliament's considered response to the particular problem of gang-related violence. Although some kinds of gang activity might be classified as anti-social behaviour, s.1 of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture but was much broader in nature and applied to anti-social behaviour of all kinds. Parliament could not have intended that when considering whether it was necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. The judge rightly held that if J's conduct fell within both pieces of legislation the Council could make an application under whichever Act it considered the more convenient, so an application under s.34 was not inappropriate. (15 May 2013)
DfE: Proposal to delegate looked-after children work: announces that following the January 2013 consultation on Changes to the Delegation and Inspection of Functions for Looked After Children and Care Leavers, the Government intends to take forward proposals to bring Part 1 of the Children and Young Persons Act 2008 fully into force, allowing local authorities to delegate some decision making and tasks around children in care and care leavers to external social work providers. It plans to use existing legislation to let local authorities who are already using external providers to continue to do so. It also plans to amend legislation so that social work providers do not need to register with and be inspected separately by Ofsted. Ofsted will instead consider the experiences of children receiving services under delegated arrangements as part of their new inspection framework. This change will be made through the Legislative Reform (Regulation of Providers of Social Work Services) (England and Wales) Order 2013. See also the Explanatory document. (13 May 2013)
DfE: Staying put – Arrangements for care leavers aged 18 years and above: the Planning Transition to Adulthood for Care Leavers Regulations 2010 and guidance and the Fostering Regulations 2011 and guidance both require local authorities to have a Staying Put policy that should set out the practical, financial, tax and benefit issues for both the foster carer and the child which impact on the decision to extend foster care as Staying Put care when a looked after child reaches the age of 18 years. This guidance outlines the arrangements where young people aged 18 and above, who were previously looked after, remain living with their former foster carers. (22 May 2013)
DfE: School Direct – Quick start guide for Schools 2014/15: School Direct is the new way of training teachers whereby schools can request training places directly, select the accredited provider of teacher training they want to work with, agree the content and focus of the training programme depending on their needs and negotiate directly with the provider on how the money for training should be divided. This guide explains to schools what School Direct is, how they can register and how it can help them. (22 May 2013)
DfE: Golden Hello reimbursement – Manuals for local authorities and academies in 2013 to 2014: explain how the National College for Teaching and Leadership will reimburse local authorities and academies for the Golden Hello scheme, which is a financial incentive for teachers of priority subjects in secondary state-maintained schools. The scheme is only available to teachers who trained through a postgraduate initial teacher training course leading to qualified teacher status. (22 May 2013)
Education (Individual Pupil Information) (Prescribed Persons) (England) (Amendment) Regulations 2013 (SI 2013/1193): these regulations, which come into force on 28 June 2013, amends SI 2009/1563 which prescribes the persons and categories of persons who can exchange information relating to individual pupils. The amendments enable this information to be shared with religious bodies for schools designated as having a religious character and with persons who, for the purpose of promoting the education or well-being of children in England, are conducting research and analysis, producing statistics, or providing information advice and guidance and who require individual pupil information for this purpose. (29 May 2013)
R (IA) v Westminster City Council  EWHC 1273 (QB)
(QBD): IA applied for judicial review of three decisions
of the Council made under Part VII of the Housing Act 1996
(local authority assistance in cases of homelessness of
vulnerable people in priority need). He also sought to extend a
without-notice injunction that required the Council
to secure suitable accommodation for him pending determination
of his claim. IA was an Iranian national who was granted asylum in
2009, having been imprisoned in Iran and subjected to both
mental and physical torture. He lived in a privately rented flat,
with his rent paid by his housing benefit. In October
2012 his landlord informed him that because of the forthcoming cap
on housing benefit payments, he would be serving IA with notice to
quit. IA then applied for homelessness accommodation under Part
VII of the 1996 Act, supported by a medical report from his
GP. The Council determined that IA was not in priority need under
s.184 and it refused to exercise its discretion under
s.192 to provide him with interim accommodation. IA applied for
judicial review and obtained an interim mandatory injunction
requiring the Council to provide him with suitable accommodation
pending the determination of the review.
The court held, granting leave to apply for judicial review, that IA's prospects of showing that the decision was unlawful, flawed with procedural irregularity and Wednesbury unreasonable were very strong. The Homelessness Code made it clear that in a case involving alleged vulnerability due to mental health and other reasons, a housing authority should immediately after receiving an application or referral undertake an initial screening exercise to determine whether it has reason to believe that the applicant was unintentionally homeless, eligible for assistance and in priority need and, if its Part VII duties were engaged, it should embark on the necessary inquiries and should make interim accommodation available. Where the case concerned mental health issues and issues arising from historic mistreatment of a former asylum seeker, the housing authority should normally consult with the applicant's medical advisers and with the relevant mental health services and obtain a psychiatric assessment and report. Where the applicant was depressed, alone, unable readily to cope with day-to-day living tasks, unemployed and possibly unemployable, had no settled links with England and had minimal support mechanisms at his disposal, the inquiries should to extend to a detailed inquiry into the applicant's way of life prior to his homelessness. Here no s.184 inquiry had been carried out and none of these matters were considered by the Council, so IA had good prospects of success in showing that the decision was flawed. He also had good prospects of success in obtaining a judicial review of the interim accommodation decisions. (20 May 2013)
LGA: Finding your way – A guide for new councillors 2013/14: updated version of the Councillors' Guide that introduces new councillors to the world of local government. It is designed to provide them with all the information that as a new councillor they need to know. It explores some of the key issues and challenges facing local government today and includes useful hints and tips from experienced councillors. (21 May 2013)
CfPS: Valuing inclusion – Demonstrating the value of scrutiny in tackling inequalities: this report gives examples of CfPS's ‘return on investment’ model for scrutiny review. It presents the learning from Phase 3 of the Health Inequalities Programme, setting out six pilots that demonstrate savings available to taxpayers if recommendations from council scrutiny about services for the homeless, gypsies and travellers and sex workers are accepted. (15 May 2013)
Local Authorities (Joint Overview and Scrutiny Committees) (Wales) Regulations 2013 (SI 2013/1050 (W.112)): these regulations, which come into force in Wales on 24 May 2013, provide for two or more local authorities to appoint a joint overview and scrutiny committee to make reports or recommendations to any of the authorities or their executives about matters affecting their areas. (2 May 2013)
DCLG: Protecting the independent press from unfair competition – Government response to consultation: sets out the Government's response to the April 2013 consultation 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. Having carefully considered all the responses, DCLG dismisses local authority respondents' arguments and supports the Newspaper Society's complaints about council newspapers taking away their advertising revenue. It remains satisfied that its proposed approach is appropriate, proportionate, and will deliver fully the commitments that it has given to put compliance with the Code’s recommendations on a statutory basis. This will both enable local newspapers to be protected from unfair competition, and ensure that in future effective action can be taken should any council be considering publicity that is of a political or tendentious character. The Government is proceeding to implement its proposals through the Local Audit and Accountability Bill that is already before Parliament. (21 May 2013)
Regional Voices: Learning from the LINks – Resources for Healthwatch: a consortium of partners, including Regional Voices, the Race Equality Foundation, Disability Rights UK and NAVCA, was asked to research into good practice in the LINks, to share as a legacy for developing local Healthwatch. This has led to resources being produced on four themes: Leadership and Governance; Representation; Engagement; and Influencing. The resources ensure that examples of good practice are not lost and that learning is accessible and easy to use. These resources stand as a legacy to the work of LINKs and are also intended to help volunteers and staff feel supported in the transition to local Healthwatch. We hope they will help local Healthwatch deliver a stronger voice for communities in the improvement of local health and social care services. (15 May 2013)
Public Safety Charitable Trust v Milton Keynes Council
 EWHC 1237 (Admin) (Admin Ct): this case concerned three
appeals by way of case stated from magistrates' courts relating to
applications by the rating authorities to the magistrates'
court for a liability order against PSCT requiring it to pay
non-domestic rates in respect of commercial properties that it
occupied. Each appeal raised the issue of the test for relief
for charities from non-domestic rates under s.43(6)(a) LGFA 1988 in
relation to PSCT's activities.
PSCT, a registered charity, leased unoccupied commercial premises in which it placed broadcasting transmitters to provide a free wi-fi service and free crime and public safety messages to the public. These services were charitable in nature and PSCT claimed that it was therefore entitled to relief from payment of rates under s.43(6) in respect of the premises. In two of the cases (Milton Keynes and South Cambridgeshire), the authority refused relief on the grounds that the relevant hereditaments were not used "wholly or mainly" for charitable purposes; in the third case (Cheshire West and Chester), the Valuation Office Agency listed the building and the wi-fi hereditaments separately and allowed relief for the wi-fi hereditament only. The Councils applied for liability orders. In the first two cases, they were successful and a liability order was imposed. PSCT appealed, contending that the courts had erred by having regard to the nature or designation of the buildings in question, which it submitted was an irrelevant consideration. In the third case the magistrates rejected the Council's application for a liability order and the Council appealed, submitting that the judge had erred in law in his approach to the wi-fi hereditament and so in his approach to the use of the main hereditament.
The court held, dismissing PSCT's appeals in the Milton Keynes and South Cambridgeshire cases and allowing the Council's appeal in the Cheshire West and Chester case, that it was established case law that s.43(6) covered not only consideration of the purpose of the use of the hereditament, but also the extent or amount of the actual use. It was reasonable to infer that Parliament intended that the substantial mandatory exemption from rates for a charity in occupation of a building should depend upon the charity actually making extensive use of the premises for charitable purposes, rather than leaving them mainly unused.
In the third case, it was established case law that the same land could be subject to rateable occupation for different purposes, as distinct hereditaments might exist in relation to the same land. There was no absolute requirement for physical contiguity in order for a single hereditament (such as the wi-fi network in this case) to exist - it could be sufficient that there was an essential functional link and a substantial degree of propinquity. Therefore it was lawful and proper for a valuation officer to identify the wi-fi network as a distinct hereditament. However, it was not properly open to the judge to question or set aside the wi-fi hereditament , and on proper and ordinary construction of the entry for the wi-fi hereditament in the local rating list he should have held that it covered the entire wi-fi network installed at the building. The validity of a hereditament was not open to challenge in enforcement proceedings in the magistrates' court. PSCT should have challenged the identification of a wi-fi hereditament as a hereditament distinct from a main hereditament at a building, by making a proposal for amendment of the list and pursuing an appeal to the Valuation Tribunal for England and the Upper Tribunal if necessary. (14 May 2013)
Sunderland City Council v Stirling Investment Properties
Ltd  EWHC 1413
(Admin) (Admin Ct): the Council appealed by way of case stated against the District Judge's dismissal of its application for a liability order against SIP in respect of non payment of non domestic rates. SIP owned vacant premises that were described in the rating list as "warehouse and premises". It let part of the premises to CMML who placed a "blue tooth box" in the corner of the premises to perform marketing and advertising functions. CMML paid the rates on the premises for the period that it was using the premises. The dispute was whether SIP were liable for business rates for the period of six months after CMML removed its blue tooth box. SIP contended that it was entitled to enjoy a period without liability to business rates under reg.4(b) of the Non-Domestic Rating (Unoccupied Property) Regulations 2008 as the exemption under reg.4(b) applied for a period of six months immediately following the end of the tenancy. The Judge dismissed the council's aplication for a liabilty order, finding that CMML was in occupation of the premises and SIP had the benefit of the rating exemption under reg.4(b).
The court held, dismissing the Council's appeal, that the District Judge had not erred in law in finding that the presence of the blue tooth apparatus constituted occupation of the hereditament nor had he erred in law in finding that the presence of the apparatus amounted to rateable occupation of the hereditament, even though it had been placed there for the purposes of advertising and not for warehousing. CMML occupied the hereditament in circumstances which amounted to rateable occupation for the duration of the lease. The fact that they did not need to "use" more than a minute fraction of the area encompassed within the premises did not prevent their occupation being rateable occupation. The intended use, though slight in terms of the extent of the space occupied, did give rise to actual occupation and surmounted the de minimis hurdle. It was irrelevant that the nature of the use to which CMML put the hereditament was different than that which was described in the rating list. There was nothing in the legislation which limited the ability of a local authority to levy rates to occupation for a purpose which was identical to the description of the hereditament in the rating list. The issue of any apparent disconnect between the nature of the occupation of an hereditament and its description in the rating list was a matter for the valuation officer.
The court distinguished Public Safety Charitable Trust v Milton Keynes Council (above) as the issue in that case was different, namely whether the appellant qualified for charitable status exemption on the basis that the premises were wholly or mainly used for charitable purposes. (24 May 2013)
DWP: New code curbs unnecessary council safety checks: announces the HSE’s new statutory National Local Authority Enforcement Code that will ban local authorities from unnecessary health and safety inspections. Instead, it targets proactive council inspections on higher risk activities in specified sectors or when there is intelligence of workplaces putting employees or the public at risk. The Code sets out the risk based approach to targeting health and safety interventions to be followed by local authority regulators. It includes a list of sectors and activities suitable for proactive inspection by local authorities. (29 May 2013)