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    Finance
   Children's Services    Governance
   Civil Contingencies    Housing
   Commons and Village Greens    Judicial Review
   Communities    Licensing
   Development Control    Parish Councils
   Economic Development    Ports and Harbours
   Education    Procurement
   Equality and Discrimination    Public Health


Adult Social Services

LGO: Councils warned about care home fees following ombudsman’s report: the LGO has issued advice to local authorities about their responsibilities for the actions of the care homes they work with, following an investigation into Merton LBC in which a contracted private care home asked a family to pay top-up fees, which they had no right to demand. The LGO found that as the contract for care was between the council and the private care home, there should have been no fee negotiation between the care home and the woman’s family. The care home was not entitled to any more funding than the council’s usual rate. (10 September 2013)

DH: Social care grants in 2013-14 – Explanatory note: provides an explanation of the three grants that local authorities will receive from the DH for social care: Guaranteed Income Payment (GIPs) disregard for 2012/13; Local Reform and Community Voices for 2013/14; and Community Capacity for 2013/14. Councils will receive the grants in two payments: a capital payment for their full Community Capacity allocation and the a single payment covering both the GIPs and the Local Reform and Community Voices grants. Full details of the Grant Determination setting out adults’ personal social services specific revenue and capital grant funding for local authorities for 2013 to 2014 are on the DH website. (18 September 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

DfE: Early years outcomes: non-statutory guide for practitioners and inspectors, to help inform understanding of child development through the early years. It can be used by childminders, nurseries and others, such as Ofsted, throughout the early years as a guide to making best-fit judgements about whether a child is showing typical development for their age, may be at risk of delay or is ahead for their age. (9 September 2013)

DCLG: Troubled Families programme: DCLG has published figures on progress within the first 15 months of the Government’s payment by results Troubled Families programme. 152 upper tier local authorities have signed up to deliver the Troubled Families programme. The Secretary of State reports that up to the end of July 2013, the programme has turned around nearly 14,000 troubled families. (10 September 2013)

DfE: New £19.3 million support fund for adoptive parents: announces the launch of the Adoption Support Fund that will support adoptive parents by providing funding for therapeutic services and intensive family support, to help children recover from their previous experiences, bond with their adoptive families and settle into their new lives. The Fund will be an insurance based ‘risk pooling’ model, which will involve local authorities, central government and other organisations in contributing to the cost of supporting post and present adoptions. It will first be trialled with a number of local authorities that will consider how best to design the fund, including how to ensure that the fund is accessible to adopters and how to best incentivise local authorities to invest in the fund. The Fund will then be rolled out nationally in 2015. (11 September 2013)

DfE: Registration of providers of social work services: in January, DfE consulted on proposals to commence Part 1 of the Children and Young Persons Act 2008 (CYPA),  allowing all local authorities in England to delegate children's care functions to external providers. It also consulted on a second proposal to remove the CYPA's requirement for these providers to register with Ofsted. However, the House of Lords concluded it was not appropriate to use a Reform Order to remove the registration requirement. DfE now states that it would still prefer to remove this requirement but, mindful of the Committee’s recommendation, and mindful of a sunset provision which means that Part 1 of the CYPA can no longer have effect if it is not brought into force by November 2013, it has decided to proceed with a registration regime for the time being. It is therefore consulting on draft Providers of Social Work Services (England) Regulations 2013 that will complement contractual arrangements between authorities and providers by ensuring that, where local authorities choose to delegate children's care functions under the CYPA, appropriate measures are in place to protect children and young people and ensure that the provider meets the statutory requirements. DfE proposes to bring these regulations into force on 13 November 2013, before bringing Part 1 of the CYPA fully into force in England at the end of the current piloting period in November 2013. This will mean that where local authorities choose to delegate functions under the CYPA, they will only be able to do so to providers who have demonstrated to Ofsted that they meet the provisions of the regulations. It also proposes transitional arrangements for those providers and authorities that have entered into delegated arrangements for piloting purposes since 2008. The consultation closes on 9 October 2013. (19 September 2013)

Local Safeguarding Children Boards (Review) Regulations 2013 (SI 2013/2299): these regulations, which come into force on 9 october 2013, provide for the review of LSCBs by HM Chief Inspector of Education, Children’s Services and Skills. They set out when a review must or may be undertaken and prescribe the Chief Inspector’s powers in relation to such reviews. (16 September 2013)

Children Act 2004 (Commencement No. 9) (Wales) Order 2013 (SI 2013/2247 (C.93)): this Order brings s.28(1)(d) - (h), (2) & (5) of the Children Act 2004 into force in Wales on 9 September 2013. The provisions place duties on specified persons and bodies in Wales to have regard to the need to safeguard and promote the welfare of children when discharging their functions. (2 September 2013)

Re B-S (Children) [2013] EWCA Civ 1146 (CA): M appealed against the refusal of her application under s.47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children (C). C were made the subject of care and placement orders when aged 4 and 3 years. Contact with M ceased and C were placed with prospective adopters, who then applied for adoption. M applied for leave to oppose the adoption on the grounds that there had been "an astonishing change of circumstances" since the making of the care and placement orders. The judge noted that the mother's life had "turned round" and that "the signs were good, and found that there had been a change of circumstances; however, she refused the application. After going through the welfare checklist, the judge concluded that it was "entirely improbable" that the mother would ultimately succeed and to embark upon the process would be "utterly devastating" for the adopters.
The court held, dismissing M's appeal, that two things were essential when the court was being asked to approve a care plan for adoption and to make a non-consensual placement order or adoption order: (i) proper evidence both from the local authority and from the guardian, and (ii) an adequately reasoned judgment by the judge. The judicial task was to evaluate all the options, with a global, holistic and multi-faceted evaluation of the child's welfare that took into account all the pros and cons of each option.
The court then gave guidance on the approach to be taken when considering an application under s.47(5). This was a two stage process. The court had to ask itself: Had there been a change in circumstances? If so, should leave to oppose be given? When considering the second question on whether to grant leave, the court had to consider both the parent's ultimate prospect of success if given leave to oppose and also the impact on the child if the parent was, or was not, given leave to oppose, with the child's welfare being paramount at all stages.
The court held that in this case, the judge was right to conclude that it was "entirely improbable" that M would succeed in opposing adoption and that M's application for leave to oppose should be refused. The judge was entitled to attach to the key factors the weight she did and to conclude that it was in C's best interests for M's application to be dismissed. (17 September 2013)

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

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Civil Contingencies

Cabinet Office: Public emergency alerts – Mobile alerting trials: this guidance explains how the Civil Contingencies Secretariat are working in partnership with the mobile industry and local responders in Glasgow, Suffolk and Yorkshire to trial different approaches to mobile alerting that would target members of the public in an area impacted by an emergency, via their mobile device. This information would enable the public to take the necessary action to keep themselves and their families safe, e.g. evacuation, taking shelter, or simply keeping a watching brief on the situation. Once the trials have been conducted, CCS will produce a report in early 2014, detailing the findings of the trials and recommending a way forward for consideration by the Government. (17 September 2013)

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

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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: updated guidance to authorities that maintain the registers of common land and town and village greens in England. The guidance reflects a number of significant changes to the law on registering new town and village greens under the Commons Act 2006, made in April 2013 under the Growth and Infrastructure Act 2012. It replaces the interim version published in May 2013. (18 September 2013) 

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

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Wales Office: Wales in the age of Localism – Speech by the Secretary of State for Wales to the Society of Local Council Clerks: the Secretary of State for Wales, David Jones, has given a speech to the SLCC in which he called on the National Assembly for Wales to do more to empower Welsh communities by giving local councils the tools to deliver for the people they serve. He highlighted the differences in approach to localism in England and Wales, and looked at what more could be done to push down power to the local level in Wales. He said that community councils need to be empowered to do more, and called on the National Assembly to examine the initiatives being implemented successfully in England, and consider adopting these in Wales. (18 September 2013)

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

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Development Control

DCLG: Planning Act 2008 – Guidance related to procedures for the compulsory acquisition of land: guidance for applicants of major infrastructure projects who intend 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 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. The guidance 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)

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

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Economic Development

DCLG: Business rates – New build empty property: Guidance: the Government has announced a new empty property rate relief for newly built commercial building, available next month, to give the construction sector renewed confidence. The relief will apply to properties completed between 1 October 2013 and 30 September 2016 that are not occupied, during the first 18 months after construction. This guidance sets out the detailed criteria in which central government will fund additional relief for newly built commercial property if it does not become fully occupied straight away. The Government will not change the rules on when a property becomes liable for empty property rates; instead, it intends to reimburse local authorities that use their discretionary powers to provide relief from business rates in the circumstances set out in the June consultation. (11 September 2013) 

Business Improvement Districts (England) (Amendment) Regulations 2013 (SI 2013/2265): these regulations, which come into force on 7 October 2013, amend SI 2004/2443 to enable two or more authorities to make arrangements for cross-border business improvement districts (BIDs) and provide for the modifications that apply to Part 4 of the Local Government Act 2003 and the 2004 Regulations where joint arrangements are concerned. It also amends the provisions generally in relation to authority proposers of BIDs. (12 September 2013)

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

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Ofsted: Going in the right direction? Careers guidance in schools from September 2012: this report examines the quality of careers advice since September 2012 when schools were given the legal responsibility to provide this service to students aged 14 – 16. The survey looked at the extent to which young people in this age-range, in the 60 schools that inspectors visited, were receiving impartial careers advice in order to make informed decisions about their future. The report finds that the arrangements for careers guidance in schools are not working well enough. Three quarters of the schools visited for the survey were not implementing their duty to provide impartial careers advice effectively. The survey also finds that guidance for schools on careers advice is not explicit, the National Careers Service is not promoted well enough and there is a lack of employer engagement in schools.
In its response to the report, the DfE sets out its Careers Guidance Action Plan: the Government will help schools and colleges carry out this duty by issuing revised guidance to schools and colleges this autumn about what constitutes excellent careers guidance, and improving the information about where pupils go on to after they finish their GCSEs and A levels (destination measures). (10 September 2013)

DfE: 16 to 19 accountability consultation: seeks views on proposed changes to the existing accountability arrangements for providers of 16 to 19 education and training in England. The reforms include performance tables, minimum standards and accountability measures designed to promote high quality provision. The consultation closes on 20 November 2013. (12 September 2013)

DfE & DPMO: Free school lunch for every child in infant school: the Deputy Prime Minister Nick Clegg has announced that every child in Reception, Year 1 and Year 2 in state-funded schools will receive a free school lunch from September 2014. The aim is to improve academic attainment and save families money. At the same time, the Government will extend free school meals to disadvantaged students in FE and sixth form colleges. The announcement follows the publication of The School Food Plan in July,  which recommended that the Government roll out free school meals for all children in all primary schools. The School Food Plan presented evidence that this would lead to positive improvements in health, attainment and social cohesion, and help families with the cost of living. (17 September 2013)

Government of Maintained Schools (Clerk to a Governing Body) (Wales) Regulations 2013 (SI 2013/2127 (W.208)): these regulations, which come into force in Wales on 20 September 2013, set out within how many weeks a local authority must provide the governing body of a maintained school with a suitable clerk. They also set out the training requirements for the clerk to a governing body at maintained schools in Wales. (28 August 2013)

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

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Equality and Discrimination

GEO: Review of the Public Sector Equality Duty – Report of the Independent Steering Group: report of the Independent Steering Group that was set up by the Home Secretary in May 2012 to examine whether the Public Sector Equality Duty (PSED) is operating as intended. A key aim of the PSED was to sensitise public bodies to equality while addressing the bureaucracy associated with the previous duties on race, disability and gender. The Steering Group concludes that it is too early to make a final judgement about the impact of the PSED, as it was only introduced in April 2011. While the Steering Group has found broad support for the principles behind the PSED, it found the main challenges lie in its implementation, which varies considerably across the public sector. As a ‘due regard’ Duty is open to interpretation by public bodies, what amounts to ‘due regard’ depends on particular circumstances and only a court can confirm that a public body has had due regard in a particular case. This uncertainty has on many occasions led to public bodies adopting an overly risk averse approach to managing legal risk in order to rule out every conceivable possibility. This has been a recurring theme throughout the review.
The Culture Minister, in her response to the report, agrees with its conclusion that a full evaluation should be undertaken in 2016 when the Duty will have been in force for five years. She accepts the Steering Group's recommendation to consider what complementary or alternative means, other than judicial reviews, there may be to enforce the PSED; this will be covered by MoJ's wider work on ensuring that disputes are resolved in the most proportionate way possible and in the most appropriate setting. (6 September 2013)

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

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Welsh Government: Consultation on discretionary powers for local authorities to increase council tax on second homes: seeks views on the policy and practical considerations of giving local authorities a discretionary power to charge additional council tax on long-term empty domestic properties in Wales. The consultation closes on 28 October 2013. (16 September 2013)

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

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DCLG: Mayoral chains of office: the Local Government Minister Brandon Lewis has written to the parties involved in a dispute between the directly elected Mayor of Mansfield DC and the Charter Trustees for Mansfield town concerning the wearing of the mayoral chains. The letter sets out the Minister's views on the Mayor's right to wear the chains of office. (13 September 2013)

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

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DCLG: Putting communities in control – Giving social tenants more power: the Communities Minister Don Foster has announced £400,000 funding for at least 1,200 tenants to attend training courses in how to set up tenant organisations, to influence landlords and to lead their communities. This is to increase the number of tenant organisations across England, to give social tenants more powers to hold their landlord to account and a greater say in how to run their community. (12 September 2013)

Welsh Government: Consultation on the proposal to amend the duty of a local authority to accommodate a former prisoner as a result of their priority need status: seeks views on a proposal to amend the priority need status of former prisoners in relation to the homelessness duties of local authorities. The change will mean that a former prisoner has a priority need for accommodation only if they are also considered to be 'vulnerable as a result of having been in custody or detention' and if they have a local connection with the area in which their homelessness application. The consultation closes on 28 October 2013. (16 September 2013)

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

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Judicial Review

MoJ: Judicial review – Proposals for further reform: seeks views on proposals for the further reform of judicial review. The measures aim to tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services whilst protecting access to justice and the rule of law.  The proposals include:

  • speeding up appeals to the Supreme Court in important cases;
  • a new specialist “planning chamber” for challenges relating to major developments to be taken only by expert judges using streamlined processes;
  • a number of measures to rebalance the system of financial incentives so that those involved have a proportionate interest in the costs of the case;
  • reforming the test for who is able to bring a judicial review;
  • changes to local authorities’ abilities to challenge nationally significant infrastructure projects; and
  • reviewing the use of JR to resolve disputes relating to the Public Sector Equality Duty and whether there are suitable alternatives.

The consultation closes on 1 November 2013. (6 September 2013)

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

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Home Office: Consultation – Personal alcohol licences: Enabling targeted, local alternatives: folliowin g concerns that the system of personal licences may not always be the most proportionate or effective way to ensure alcohol is sold responsibly, the Government is now seeking views on whether personal licences should be abolished; instead, licensing authorities would be able to apply relevant conditions to premises licences where appropriate. It estimates that this could save businesses some £10m a year, while keeping a focus on tackling crime and disorder at licensed premises. The consultation closes on 7 November 2013. (12 September 2013)

Local Authorities (Functions and Responsibilities) (England) (Amendment) Regulations 2013 (SI 2013/2190): these regulations, which come into force on 1 October 2013, amend SI 2000/2853 in respect of the existing functions exercised by local authorities under the Licensing Act 2003 and new functions exercised by such authorities in relation to the late night levy requirements under Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011. (6 September 2013)

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

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Parish Councils

DCLG: Government response to consultation on making it easier to set up new town and parish councils: in October 2012 the Govenrment consulted on proposals to make the current process for setting up a new parish council much easier, quicker and more democratic for local people who want their neighbourhood to have a parish council. This paper summarises the Government's next steps to make the process quicker and easier, in the light of the responses received. These include:

  • changing the law to limit the time for a community governance review to 12 months from the receipt of a valid petition in all cases;
  • reduce the number of signatures needed on a petition for a community governance review to 7.5% of the local area population, with a higher proportion for local areas with smaller electorates;
  • make it easier for neighbourhood forums to start the process for setting up new parish councils; and
  • amending guidance on the interpretation of the concepts of ‘effectiveness’ and ‘convenience’ in a community governance review and how the process can fit with the electoral cycle, and to recommend that local authorities have an appropriate internal review process on request, but not seek to establish a right of appeal for campaigners.

The changes will be implemented by means of a Legislative Reform Order that will come into effect within the next 12 months. (9 September 2013) 

Sustainable Communities (Parish Councils) Order 2013 (SI 2013/2275): the Sustainable Communities Act 2007 provides for the Secretary of State to invite local authorities to make proposals which they consider would contribute to promoting the sustainability of local communities and for the publication of action plans by the Secretary of State setting out what action if any will be taken to implement the proposals. This Order, which comes into force on 14 October 2013, gives parish councils the same powers as local authorities to make proposals under the 2007 Act. (16 September 2013)

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

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Ports and Harbours

DfT: Ports strategic partnership plan – A framework for discussion between Government, industry and trade unions: DfT has published a collection of documents that set out the various activities being taken forward by Government, by industry and the trade unions to support its ambition for a thriving UK ports industry: keeping Britain supplied and connected, while protecting the environment. (9 September 2013)

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

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Welsh Government: Blacklisting in the construction industry – Policy Advice Note (PAN) for the public sector in Wales: outlines the necessary steps that can be taken through procurement to help eradicate blacklisting. The guidance makes clear those circumstances where Welsh public sector bodies can exclude blacklisters from bidding for a public contract. (10 September 2013)

Cabinet Office: Making public sector procurement more accessible to SMEs: seeks views on the single market principles which suppliers should expect when doing business with the public sector. These principles should simplify and standardise the advertising, bidding and payment of public contracts, and should remove the complexity, cost and inconsistency when trying to sell to more than one public sector body. They would apply to businesses as direct contractors with government and as sub-contractors or partners in a procurement supply chain; commissioning clinical services and schools and academies would be exempt (but the standards would apply to the regional buying organisations that purchase on behalf of schools and academies). The consultation closes on 16 October 2013. (19 September 2013)

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

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Public Health

LGA: Delivering effective local Healthwatch – Key success features: this document seeks to support sector-led improvement at a council level by helping to shape the outcomes councils want to achieve in their local Healthwatch commissioning role. It helps councils to understand better the commissioning of local Healthwatch and review how well their local Healthwatch delivers its roles and responsibilities. It can also help local Healthwatch develop their understanding of what is expected of them and how they can deliver best practice. (9 September 2013)

Public Health England: PHE launches new data and knowledge information portal: announces the launch of the new PHE Data and Knowledge Gateway that gives direct access to analysis tools and resources for public health professionals from one single portal. The resources cover:  commissioning and planning services, joint strategic needs assessment, health surveillance, understanding inequalities and variation, research and evidence.  (9 September 2013)

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

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