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    Finance
   Adult Social Services    Fire Authorities
   Benefits    Governance
   Children's Services    Highways
   Commons and Village Greens    Overview and Scutiny
   Development Control    Public Health
   Economic Development    Standards
   Education    Traffic and Transport  
   Environmental Protection


Access to Information

ICO: Council employee publishes vulnerable children's welfare details online: reports that the ICO has served Aberdeen City Council with a monetary penalty notice for £100,000 after a serious data breach resulted in sensitive information relating to social services involvement with several individuals being published online. The information included details relating to the care of vulnerable children. The ICO’s investigation found that the council had no relevant home working policy in place for staff and did not have sufficient measures in place to restrict the downloading of sensitive information from the council’s network. (30 August 2013)

Bevan Brittan: New FOI obligations on public bodies when providing datasets: from 1 September 2013, where an applicant makes a request to a public body for information which is, or forms part of, a 'dataset', public bodies are now required to provide the data in electronic format which is capable of re-use. There are also changes to the charging and licensing regime for re-use of datasets. We have published an article on the implications of these changes for public bodies and suggest some practical steps which organisations should consider taking now to establish systems for dealing with requests for datasets. (4 September 2013)

Local Government Lawyer: Sales of the Edited Register: councils have recently come under fire for sales of the edited electoral register. In this article, Emma Godding looks at the key issues for electoral registration officers and local government lawyers. (6 September 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: Statement of Government policy on adult safeguarding: provides an update on the Government’s policy on safeguarding adults vulnerable to abuse and neglect. It includes a statement of principles that local authority Social Services and housing, health, the police and other agencies should use when developing and assessing the effectiveness of their local safeguarding arrangements. It also describes, in broad terms, the outcomes for adult safeguarding for both individuals and organisations. (29 August 2013)

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

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DWP: Personal Independence Payment (PIP) toolkit for partners: as part of wider welfare reform, Personal Independence Payment (PIP) has replaced Disability Living Allowance (DLA) for people who were aged 16-64 on 8 April 2013 or reach age 16 after that date. This is initially for new claims only. This toolkit is to provide clear information to individuals and organisations that support PIP and DLA claimants. It equips them to offer up-to-date advice on PIP or direct claimants to other sources of help. The toolkit could also be adapted into training for their people. (3 September 2013)
See also:

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

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Children's Services

Welsh Government: Revised guidance on safeguarding children in education: seeks views on draft revised guidance for local authorities and governing bodies of maintained schools and FE institutions on arrangements for safeguarding children under s.175 of the Education Act 2002. The guidance is also for proprietors of independent schools to enable compliance with the welfare, health and safety standards prescribed in regulations under s.157 of the Education Act 2002. The guidance has been revised to reflect legislative changes since the previous guidance was issued in 2008 and refer to the most up-to-date statutory guidance about related issues. In particular, it provides information on key changes to pre-employment vetting and barring checks introduced by the Protection of Freedoms Act 2012. The consultation closes on 25 October 2013. (27 August 2013)

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

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Commons and Village Greens

DEFRA: Guidance to Commons Registration Authorities in England on Sections 15A to 15C of the Commons Act 2006: this guidance reflects a number of significant changes to the law on registering new town and village greens, made under the Growth and Infrastructure Act 2013. The changes took effect from 25 April 2013, and affect town and village green applications made on or after that date. The guidance covers landowner statements and registers under s.15A and s.15B, and exclusion of the right to apply to register new town or village greens under s.15C where a trigger event has occurred. It replaces the interim version published in May 2013. (27 August 2013)

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

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Development Control

DCLG: New streamlined planning guide launched online: announces that new National Planning Practice Guidance is now available as an online resource, together with the National Planning Policy Framework. The new tool is currently in test mode and for comment; the Government states that none of the current planning practice guidance will be cancelled until the final online guidance is in place and live later in the autumn. The closing date for comments is 9 October 2013. (28 August 2013)

DCLG: Planning Act 2008 – Guidance related to procedures for the compulsory acquisition of land: guidance for those intending to make an application for a Development Consent Order under the Planning Act 2008 where their application seeks authorisation for the compulsory acquisition of land or rights over land. It aims to help applicants of major infrastructure projects understand the powers contained in the Planning Act, and how they can be used to best effect. The guidance also advises on the application of the correct procedures and statutory or administrative requirements, to help ensure that the process of dealing with such orders is as fair, straightforward and accurate for all parties as possible. It has been simplified and updated to reflect recent changes in the Planning Act legislation, particularly those resulting from the introduction of the Growth and Infrastructure Act 2013. (3 September 2013) 

DCLG: Improving planning: the Under-Secretary of State for Planning Nick Boles has made a Written Statement to Parliament outlining steps taken by Government to ensure a streamlined, easy-to-use planning system. He gives details of a number of SIs that aims to make planning practice swifter and simpler, which have been laid this week:

The SIs all come into force on 1 October 2013. (3 September 2013)

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

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Economic Development

DBIS: Development and delivery of the European Structural and Investment Funds strategies – Supplementary guidance to local enterprise partnerships: the EU Structural and Investment Funds Growth Programme combines the European Regional Development Fund, the European Social Fund and part of the European Agricultural Fund for Rural Development for the funding period 2014-2020. Its priorities are innovation, support for SMEs, low carbon, skills and employment, and social inclusion. Each LEP has been asked to draw up an EU Structural and Investment Funds strategy setting out how it intends to use the Growth Programme Funds. DBIS has asked LEPs to prepare the first drafts of this EU strategy by 7 October 2013, and final proposals must be agreed with Government in early 2014. This updated guidance explains to LEPs and their partners what information they should include in their EU Structural and Investment Funds strategy documents, and how these will be evaluated by government. (28 August 2013) 

DCLG: Training by local high street experts to help towns modernise: announces that dedicated teams of local experts are to train towns how to adapt their high streets to changing consumer behaviour. The training and mentoring is to be targeted at the leaders of 350 ‘town teams’ across the country, which were created following the recommendations of the Portas Review. (2 September 2013)

DBIS: Deputy Prime Minister urges business to prepare bids for Regional Growth Fund Round 5: Nick Clegg has announced that Round 5 of the Regional Growth Fund will open in October. This press release includes Lord Heseltine's five top tips for submitting a good bid to the fund to help businesses be ready; these include being realistic, demonstrating the benefits of the project and seeking guidance from officials and local business leaders. (5 September 2013)

Welsh Government: Funding available to explore new BIDs: announces £200,000 funding to encourage Welsh local authorities to explore opportunities to create a Business Improvement District. The closing date for applications is 29 November 2013. (6 September 2013)

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

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DfT: Driving school minibuses – Advice for schools and local authorities: this non-statutory guidance explains when a school employee with a car driving licence may drive a minibus. It also outlines when a Section 19 permit might be required. (4 September 2013)

Protection of Freedoms Act 2012 (Commencement No. 9) Order 2013 (SI 2013/2104 (C.88)): this Order brings ss.26-28 of the 2012 Act into force on 1 September 2013. These sections impose a requirement on schools, 16-19 Academies and FE institutions to notify parents and obtain parental consent before processing a child’s biometric information. (26 August 2013)

Education (Wales) Measure 2011 (Commencement No. 2) Order 2013 (SI 2013/2090 (W.205) (C.87)): this Order brings ss.22-25 of the 2011 Measure into force on 19 September 2013, regarding local authorities' duties in connection with training for governors and clerks, and the provision of a clerk to a school governing body. (22 August 2013)

Information as to Provision of Education (England) (Amendment) (No.2) Regulations 2013 (SI 2013/2149): these regulations, which come into force on 1 January 2014, amend SI 2008/4 so as to require each local authority in England to include information about admissions to primary schools in the information they provide to the Secretary of State about secondary school admissions. That information must also be provided on each individual child rather than the total number of applications received, preferences expressed and offers made. (5 September 2013)

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

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Environmental Protection

DEFRA: Review of the Clean Air Act: the Government is conducting  a review of the Clean Air Act 1993, looking at the importance of the Act for air quality management and the burdens that it places on local authorities and business. It is seeking views from the public, local authorities and businesses affected by the Clean Air Act on how to improve the Act and meet the review's the policy objectives of reducing burdens on business and local authorities, making environmental rules and regulations more user friendly and maintaining the quality of environmental regulations. The consultation closes on 29 October 2013. (4 September 2013)

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

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Welsh Government: Technical Consultation on the Council Tax Reduction Schemes and Prescribed Requirements (Wales) Regulations 2013: seeks views on draft regulations which will introduce Council Tax Reduction Schemes in Wales from 1 April 2014. The consultation closes on 20 September 2013. (23 August 2013)

Welsh Government: “One week to give your views on devolving stamp duty to Wales”: HM Treasury is currently consulting on the potential impacts of devolving Stamp Duty Land Tax (SDLT) to the Welsh Government with Welsh Ministers given control over all aspects of the tax in Wales’. The closing date for comments is 10 September 2013. This press release reports on the Welsh Finance Minister's meeting with business leaders, house builders and representatives from the construction and related sectors that discuss the Treasury’s consultation. (4 September 2013)

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

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Fire Authorities

Wembridge Claimants, Wicker Claimants and Austin v Winter, East Sussex Fire and Rescue Service and Alpha Fireworks Ltd (in liquidation) [2013] EWHC 2331 (QB) (QBD): the High Court has ruled that the defendant Fire & Rescue Service (FRS) was liable to the claimants in damages for their losses and liabilities arising out of a fire and explosion.
Firefighters and police officers brought a claim against the FRS for personal injuries and losses suffered as a result of the explosion of a fireworks container while they were attending a fire at the first defendant's premises. Two people died in the explosion. They claimed breach of four regulations: the Provision and Use of Work Equipment Regulations 1998; the Control of Substances Hazardous to Health Regulations 2002; the Dangerous Substances and Explosive Atmospheres Regulations 2002; and the Management of Health and Safety at Work Regulations 1999. They also contended that the FRS had breached its statutory duty of care regarding the risks associated with fireworks and specifically the risk of significant explosion from bulk fireworks. The FRS claimed that the regulations did not apply to firefighters. They also claimed a "fireground immunity" from suit.
The court held, giving judgment for the claimants, that on construction of the legislation, Fire and Rescue Services were not expressly excluded from the Health and Safety at Work Act 1974, although police officers were. The court did not accept the FRS's submission that Parliament did not intend that the workplace regulations should apply to the fire service. However, it was difficult to apply the Hazardous Substances and Dangerous Substances Regulations to this case as they both presupposed that  the employer is (or should be) in control of the workplace whereas here, the workplace, in the sense of a fireground, was only occupied in an emergency, and the control was necessarily limited. The Management and Work Equipment Regulations were easier to apply in this case as their obligations were not complicated by the exigencies of the fireground.
In respect of common law liability to employees, there was no established "battle immunity" in relation to decisions taken in the heat of the moment by those in charge in the emergency services. The proper approach was to consider the underlying principle: was it fair, just and reasonable that a duty of care should subsist? If and to the extent that a duty of care subsists in extreme conditions, the courts had to make every allowance for the difficulty of exercising command and making swift decisions on a fireground when deciding whether a breach of that duty had been established. Here, no immunity from suit existed in relation to the FRS's actions and its employees on the day of the fire, and the FRS owed their employees and others the relevant statutory duties under the Health and Safety Regulations; it also owed to employees and to police officers a common law duty of care. The FRS was at fault in not recognising fully the risks of fireworks stored in bulk, and particularly in containment. This constituted negligence. The risks from inadequate knowledge and inadequate training on such a subject were foreseeable and indeed obvious. Better training would probably have led to an earlier evacuation of the fireground and the deaths and injuries would have been avoided. There was also a failure to ensure that the site was properly inspected and a risk card prepared. The failure to pass on the information that significant explosions were reported from the site before the fire service arrived at the scene and the failure to effect an earlier evacuation of the fireground were negligent faliures and breached the Hazardous Substances and the Dangerous Substances Regulations. (30 July 2013)

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

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Welsh Government: The Local Government (Committees and Political Groups) (Amendment) (Wales) Regulations 2013: seeks views on proposed changes to the rules of political balance that apply to committees and sub-committees of a local authority, under the Local Government and Housing Act 1989. It proposes inserting a new reg.16AA into the Local Government (Committees and Political Groups) Regulations 1990 regarding area committees. The effect of the changes is to ensure that area committees discharging non-executive functions are subject to the same constitutional arrangements as are those discharging executive functions. The consultation closes on 25 October 2013. (30 August 2013)

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

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Town and Country Planning (Public Path Orders) (Amendment) (England) Regulations 2013 (SI 2013/2201): these regulations, which come into force on 1 October 2013, amend SI 1993/10 which prescribes the format that rights of way orders must take. The amendment is required to take account of changes to the TCPA 1990 made by the Growth and Infrastructure Act 2013, enabling an order stopping up or diverting a public path to be made in anticipation of planning permission. (6 September 2013)

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

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Overview and Scutiny

Welsh Government: Designated Persons Order (No.1): seeks views on the proposed list of public service providers to be included in the Designated Persons Order (No.1) under s.61 of the Local Government (Wales) Measure 2011. The Welsh Government's policy on collaborative public services believes that cross public service collaborative projects should be scrutinised to ensure and promote shared responsibility and delivery, and maintain a clear line of accountability. The Local Government (Wales) Measure 2011 broadens the application of local government scrutiny to the wider public service (those organisations which are ‘designated’), and places a new duty on local authority scrutiny committees to scrutinise public service providers in their area, by giving the Welsh Ministers power to ‘designate’ public service providers for the purposes of local authority scrutiny under s.21 LGA 2000. This paper seeks views on the individuals and organisations which will be subject to scrutiny by local authority scrutiny committees. This is not intended to duplicate existing systems of accountability but to complement these by focusing on areas where public services work together. The consultation closes on 21 November 2013. (29 August 2013)

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

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Public Health

Public Health England: Directors of Public Health: following PHE's letter to local authorities on its role in the appointment of Directors of Public Health, PHE has now published a list of the DPHs appointed in each authority. (28 August 2013) 

Office for Public Management: Health & Wellbeing Boards – Orchestating the possible for integrated care: this guide looks at the challenges faced by HWBs. With record cuts in local authority budgets, increasing demands due to an ageing population, the restructuring of the NHS, and a challenging public health agenda, the pressure is on for HWBs to achieve more for less, to orchestrate system change and to bring about integrated care. The guide is based on OPM's experience of working with HWBs and answers the key questions that they need to address make sure that they reach their full potential. (2 September 2013)

DH: Ten million pound cash boost to improve the health of homeless people: announces that 52 voluntary sector organisation projects that have been awarded a share of £1 m funding to work with the NHS and local government to make sure homeless people get the best possible support and care after they leave hospital. (6 September 2013)

LGA: Health and wellbeing board development tool: the LGA has published a revised version of its development tool that aims to assist HWBs to explore their strengths and opportunities, improve, and inspire their ambition to develop a clear sense of purpose and an approach which will help transform services and outcomes for local people. The revised tool gives HWBs an opportunity to evaluate their position using a maturity model, describing characteristics of a ‘young', ‘established', ‘mature' and ‘exemplar' HWB against six dimensions for an effective partnership. (5 September 2013)

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

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Committee on Standards in Public Life: Annual report 2012-13: this report provides an overview of the Committee’s activities over the course of the financial year 2012/13. The Committee’s main project in this year has been to produce its 14th report Standards matter: A review of best practice in promoting good behaviour in public life (January 2013), which analyses what has been shown to work best in promoting high standards and takes stock of current areas of risk. The Committee also carried out its fifth biennial survey of attitudes to standards in public life, the results of which will be published in September 2013. The section on local government standards highlights the Committee's concerns about the new regime under the Localism Act 2011, particularly the lack of suitable sanctions, the role of the independent person, the need for strong leadership and the very short time given for impementing the new regime. (27 August 2013)

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

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Traffic and Transport

DfT: All Party Parliamentary Cycling Group’s Get Britain Cycling Inquiry – HM Government response: sets out the Government's response to each of the recommendations in the APP Group's April 2013 report, with details of action being taken to encourage more people to take up cycling and to make cycling safer. (28 August 2013)

DfT: £5 million boost to cut pollution from local buses: announces that 11 local authorities have been awarded grants from the DfT’s Clean Bus Technology Fund, to upgrade 392 older buses operating in areas with poor air quality, with five types of technology. (29 August 2013)

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

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