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    Highways
   Adult Social Services    Housing
   Community Rights    Parish Councils
   Economic Development    Police
   Education    Public Health
   Equality and Discrimination    Regulatory Services
   Finance    Standards
   Governance    Wales


Access to Information

ICO: Proactive dissemination – Routinely publishing environmental information (regulation 4): this guidance explains to public authorities how to meet their obligation under reg.4 of the Environmental Information Regulations 2004 to progressively make information available to the public by electronic means. This is separate from the duty to make information available in response to individual requests. (5 November 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: Integration pioneers leading the way for health and care reform: announces the 14 areas that have been selected as integrated pioneers to transform the way health and care is being delivered to patients by bringing services closer together. The aim is to make health and social care services work together to provide better support at home and earlier treatment in the community to prevent people needing emergency care in hospital or care homes. The press release summarises each project and gives contact details. (1 November 2013)

Public Health England:  What we know now 2013: this report from PHE's National End of Life Care Intelligence Network (NEoLCIN) summarises the key findings of the network over the last year on where people die and what influences this. The research looked at the influence of marital status and ethnicity on place of death, patient experience, the role of community and palliative care and many other factors. It found that the proportion of people dying at home or in care homes increased from 38% in 2008 to 44% in 2012. However, it also found there were large variations in the proportion of deaths in hospital between 2009 to 2011. Local authorities with highest and lowest rates ranged from 69% in some areas to 38% in others, although the reasons for this are complex. (4 November 2013)

ADASS: Four nations united – Critical learning from four different systems for the successful integration of social care and health services: this joint report by the Directors of Adult Social Services from Northern Ireland, Wales, Scotland and England highlights the importance of integrated care, and the valuable contribution that social care services are making in each of their four countries. Their report stresses that there are four critical factors for the successful integration of social and health care services:

  • A clearly articulated and widely-shared vision of why, how and what benefits?
  • A medium to long-term financial strategy that is realistic about costs;
  • Flexible organisational arrangements that support a common purpose; and
  • Attention to matters of culture through effective leadership

The directors’ report acknowledges that, throughout the UK, the state will not be able to meet the anticipated increasing demand for services without major reform in the way services are delivered. (November 2013)

Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP): in a landmark Court of Protection ruling, Mr Justice Jackson has concluded that a gravely ill 67-year-old woman, who lacked the mental capacity to choose for herself where she lived, must be allowed to return home to spare her a "daily life without meaning or happiness" in care despite fears that she would die. The right to life and the State's obligation to protect it were not absolute and the court must have regard to the person's own assessment of her quality of life. The judge ruled that in this case there was little to be said for a solution that attempted, without any guarantee of success, to preserve for M a daily life which she, with some justification, regarded as insupportable. The media have dubbed this "a victory for common sense". (23 October 2013)

LGO: Care and treatment in a care home – Joint report with PHSO: the LGO has published a joint report with the Parliamentary and Health Services Ombudsman into Reading BC and the former Berkshire West PCT. It concerns a complaint was made by Mrs H about the care provided to her late uncle, Mr K, at a care home that provided intermediate care and long-term dementia care. The care home was run jointly by the council and the Trust. The Ombudsmen partly upheld the complaint. The report describes service failure in the care and treatment Mr K received at the care home. It illustrates the importance of getting it right in the care of elderly people, particularly in terms of nutrition and hydration, catheter care, the administration of medication, record keeping and communication with the family. (31 October 2013)

DH: Adult Social Care Outcomes Framework 2014 to 2015: the Adult Social Care Outcomes Framework (ASCOF) measures how well care and support services achieve the outcomes that matter most to people. The Framework: supports councils to improve the quality of care and support services they provide; gives a national overview of adult social care outcomes in 2012 to 2013; and looks at how the framework will be developed in future. The ASCOF data is also being presented on a website that allows people to find out more about care services in their area. (11 November 2013)

DCLG: Government funding to help 10,000 older people stay independent: announces the first 15 local FirstStop services, supported by £1m government funding, that will give older people a helping hand to stay independent and make choices about where and how they live in later life. FirstStop works with partners such as Age UK, local councils and home improvement agencies to provide tailored advice and practical support for older people who may be struggling to cope in their own homes but remain determined to keep living independently. (14 November 2013)

iMPower: A question of behaviours: this report from behavioural insight specialists calls into question the effectiveness of the Government's Health and Social Care Integration Transformation Fund programme. It concludes that the NHS and local government are at risk of wasting the £3.8bn of money available in the Fund. The report argues that current integration plans could mean another expensive health care re-organisation because of the failure to take into account longstanding professional and public behaviours. (14 November 2013)

Bevan Brittan has issued an Alert on the Integration Transformation Fund in which we highlight how local authorities need to take prompt action in order to get the initial building blocks in place to support the preliminary year arrangements for 2014/15. 

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

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Community Rights

Patel v Hackney LBC (Community Right: Localism Act 2011) [2013] UKFTT 5 (GRC): a tribunal judge has dismissed a challenge to Hackney's decision to list a disused pub as an Asset of Community Value (ACV), in the first tribunal hearing of its kind.
P bought the Chesham Arms pub in October 2012 and closed it, intending to apply for planning permission to convert it for residential use. The Council registered the pub as an ACV, following an application by a local residents' group. P appealed against the listing. The issue was whether the test in s.88(2)(b) of the Localism Act 2011 was satisfied, namely that before an asset is listed, it must be “realistic to think that there is a time in the next five years when there could be non-ancillary use of the building … that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community”. P argued that this meant that it was essential to demonstrate on the balance of probabilities that the Chesham Arms would reopen as a pub.
The tribunal held, dismissing P's appeal, that the test for whether it was "realistic" should not be confused with the test which courts and tribunals use as the civil standard of proof. That was a test designed to produce one outcome, whereas the language of the 2011 Act was consistent with a number of realistic outcomes co-existing. The owner's intentions were not the determinative factor but should be considered as part of the whole set of circumstances - they were the current owner’s present intentions and the legislation required an estimate of what will happen over the next five years. In this case, both the grant and the refusal of planning permission to P were realistic possibilities. The pub could be converted in flats, or rented out as office space, or P could cut his losses and sell to someone interested in running the building as a pub - all three options were realistic. The Council was therefore correct to list the pub as an ACV. (7 November 2013)

IPPR: Love thy neighbour – People and place in social reform: this report draws together a wealth of research into how and why neighbourhoods are changing in Britain. It explores the pressures that they face, the resources and capacities they have within them, and how both people and policies can make them better places to live and work. It also reviews the past effects of services, institutions and government policies on neighbourhoods, and assesses the effectiveness of different approaches to neighbourhood and community policy, in order to offer recommendations for how governments and policy can shape neighbourhood developments in progressive and proactive ways. (12 November 2013)

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

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Economic Development

Welsh Government: Further round of £30 million Wales Economic Growth Fund opens: announces that the next phase of the £30m Wales Economic Growth Fund has opened for expressions of interest from companies looking to access gap funding of more than £100,000 to support job creating projects. Expressions of interest must be submitted by 16 December 2013. (4 November 2013)

DEFRA: A coastal concordat for England:  this is a standalone agreement about the consenting phase of development, complementing other government agency led initiatives to promote sustainable growth. It aims to reducing unnecessary regulatory duplication, providing better sign-posting, streamlining assessments and increasing transparency and consistency of advice. The concordat will help local authorities as regulators to work more effectively with other regulators and advisers involved in coastal development. Implementation of the concordat should generate long-term efficiency savings for regulators, advisers and applicants alike as a result of improved coordination and hence support sustainable economic growth in their areas. (11 November 2013)

ODPM: Southampton and Portsmouth City Deal: the Deputy Prime Minister Nick Clegg and Minister for Cities Greg Clark have signed a City Deal with Portsmouth & Southampton local authorities and business groups. The City Deal will provide £953m of investment into the Southampton and Portsmouth areas, creating more than 17,000 jobs. It will also set up the new £5.8m Solent Jobs Pilot. (12 November 2013)

DCLG: The Growing Places Fund – Investing in infrastructure: this progress report provides information on the progress being made by local enterprise partnerships (LEPs) in delivering the £730m Growing Places Fund, which is supporting key infrastructure projects designed to unlock wider economic growth, create jobs and build houses in England. The range of projects includes site access/site clearance, broadband and transport infrastructure, utilities, refurbishment of buildings and flood defence barriers. (13 November 2013)

ODPM: Deputy Prime Minister announces multi-million pound boost for youth jobs: announces funding for the eight core cities and 20 Wave Two cities to invest over the next three years, to tackle the problem of youth unemployment. The cash will be used to help young unemployed people from the local area in ways that suit the needs of local employers. This can include addressing skills gaps, improving training, offering more support and working with local employers to offer more jobs and apprenticeships. (14 November 2013)

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

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HC Education Committee: School partnerships and cooperation: this report looks at  the potential of school partnerships and collaboration to improve the whole school system. The Committee has no problem with the Government's vision that each school takes responsibility for itself and each other in delivering a true self-improving school system, and thinks the wide range of models and structures already in place is a strength and proof of vitality. It supports moves to give schools more freedom to innovate but argues that the creation of a self-improving system needs a degree of coordination and strong incentives to encourage schools to look beyond their own school gate, otherwise there is a danger that many schools will operate in isolation rather than in cooperation. It finds that academy chains are generally performing well but raise particular questions and need specific solutions. it recommends that it should be made clear how academies can leave chains either with or without mutual consent, and it calls for the DfE to monitor more effectively the extent to which convertor academies meet the expectation that they should support other schools. The Committee finds that local authorities have a critical role to play in a school-led improvement system and it recommends that the Government set out clearly the role of local authorities in helping to broker school-to-school partnerships and acting as champions of all parents and children in their region. (6 November 2013)

DfE: Academies and free schools programmes – Assessing value for money: this note sets out a framework for considering value for money, which applies to academies of all kinds, including free schools, university technical colleges and studio schools. DfE is publishing the framework to show the basis on which it will seek to assess these reforms and their impact on the wider school system. (8 November 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

Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (CA): the Court of Appeal has overturned the High Court's decision upholding the Secretary of State's decision to close the Independent Living Fund (ILF).
B and others were all severely disabled people who were current users of the ILF. They applied for judicial review of the Secretary of State's decision to close the ILF, claiming that the consultation process was defective as the information provided in the consultation document was inadequate, and that the SoS had failed to comply with his Public Sector Equailty Duty (PSED) under s.149 of the Equality Act 2010.
The Court of Appeal held, allowing the appeal, that the Minister had not properly appreciated the impact of the proposals on the substantial group of disabled persons currently benefiting from ILF funding. The Minister was told in general terms of concerns that ILF users would face reductions or alterations in their care packages and that their ability to lead full and independent lives would be undermined. However, she was not given adequate information to enable her properly to assess the practical effect of the proposals on the particular needs of these persons and their ability to live independently. Nor had the Minister ever considered the proposals with a proper focus on the particular matters to which she was required to have due regard. There was no evidence that she directed her mind to the need to advance equality of opportunity, nor was there evidence that she considered the proposals having due regard to the need to minimise the particular disadvantages from which ILF users and other disabled persons suffer or the need to encourage such persons to live independently and to participate in public life and other activities. (6 November 2013)

Hunt v North Somerset Council [2013] EWCA Civ 1320 (CA): H appealed against the decision that the Council had complied with its consultation duties under s.507B of the Education Act 1996 and its Public Sector Equality Duty under s.149 of the Equality Act 2010 when deciding to reduce its youth services budget.
The Court of Appeal held, dismissing the appeal, that the Council had not conducted the sort of focused consultation required by s.507(B)(9). There was no evidence that it had inquired as to what, if any, were the views of qualifying young people nor had it taken any such views into account. Nor had the Council discharged its PSED - Council members had not been told of any need or requirement to read the EIAs themselves; whilst they were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting. 
However, the court would not grant H the relief sought. To quash a decision to reduce part of the Council's revenue budget in relation to its youth services provision for a financial year that, at the date of the hearing of the appeal, had expired nearly three months before would mean also quashing the Council's decision to approve the entire revenue budget for 2012/2013, of which it formed part. To make an order of that nature in relation to a year that has now expired, and in respect of which Council Tax has been demanded and levied, would be drastic and detrimental to good administration. (6 November 2013)

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

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Local Authority (Referendums Relating to Council Tax Increases) (Date of Referendum) (England) Order 2013 (SI 2013/2862): this Order, which comes into force on 6 Decmeber 2013, specifies 22 May 2014 (the date of the elections for the European Parliament and local government elections in 2014) as the date on which billing authorities required to hold more than one council tax referendum must hold them, and the latest date by which they may hold a council tax referendum if they are required to hold just one, in relation to the financial year beginning 1 April 2014.  (13 November 2013)

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

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DCLG: Proposal to establish a combined authority for the area of West Yorkshire: seeks views on proposals to establish a West Yorkshire Combined Authority that would comprise Bradford MDC, Calderdale BC, Kirklees BC, Leeds City Council, Wakefield City Council and the West Yorkshire Integrated Transport Authority, and on the proposed structure, constitution and functions of the new authority. The consultation closes on 2 January 2014. (7 November 2013)

DCLG: Proposal to establish a combined authority for the area of Durham, Northumberland and Tyne and Wear: seeks views on proposals to establish a Durham, Northumberland and Tyne & Wear Combined Authority that would comprise Durham CC, Gateshead Council, Newcastle City Council, North Tyneside Council, Northumberland CC, South Tyneside Council and Sunderland City Council, and on the proposed structure, constitution and functions of the new authority. The consultation closes on 2 January 2014.  (7 November 2013)

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

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DfT: Strategic salt protocol – Note for local highway authorities in England: following the recommendations of David Quarmby’s independent review into the response of England’s transport system to severe winter, in 2010 the transport Secretary instructed the Highways Agency to build up a strategic stockpile of road salt to improve national resilience. For Winter 2013/14, the DfT has retained a strategic salt stockpile of approximately 305,000 tonnes with a further 120,000 tonnes being held by the Highways Agency. This note sets out the arrangements for allocation of strategic salt, if and when required, including the price of salt. (7 November 2013)

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

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DCLG: The Housing (Right to Transfer from a Local Authority Landlord) (England) Regulations 2013 – Statutory guidance: the 2013 Regulations (SI 2013/2898) compel a local authority to cooperate with a group of its tenants who wish to explore the benefits of a change of landlord. Where a transfer proves to be the favoured and viable option the Regulations compel the local authority to commence the process of transferring ownership of those homes to a private registered provider of social housing. Any such transfer proposal is still subject to existing legislation on stock transfers, i.e. the transfer cannot go ahead unless a majority of secure and introductory tenants of the homes in question vote in favour in a ballot organised by the local authority and the Secretary of State has granted consent. The Regulations also allow the authority, at any time, to request the Secretary of State to halt the proposal if it would have a significant detrimental effect on the authority's ability to deliver its housing services or regeneration within the local area. This statutory guidance explains the provisions for tenant groups who wish to explore their right to transfer their social housing stock away from the control of the council and to a private registered provider. (12 November 2013)

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

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Parish Councils

Draft Legislative Reform (Payments by Parish Councils, Community Councils and Charter Trustees) Order 2013: this draft Order, once in force, removes the requirement for every cheque or other order for the payment of money by a parish or community council to be signed by two members of the council. The Order also removes a similar requirement for every cheque or other order for payment of money by charter trustees to be signed by two charter trustees. DCLG has stated that it will issue new guidelines allowing parish councils to use electronic methods of payment provided robust anti-fraud measures are in place. Councils will need to ensure that they have a sound and comprehensive system of internal control with checks before and after a payment is made. (11 November 2013)

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

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Home Office: Police and Crime Commissioners, one year on – Warts and all: the Home Secretary Theresa May has given a speech to Policy Exchange about Police and Crime Commissioners (PCCs). She discussses the performance of PCCs in their first year of office, with examples of how things could and perhaps should have gone better, and also some examples of behaviour where things ought to have been better. (7 November 2013)

Home Office: Independent Review of the Riot (Damages) Act 1886: the Riot (Damages) Act 1886 requires the police to pay compensation to those whose property is damaged in a riot. After the August 2011 riots, Neil Kinghan was commissioned by the Home Secretary to review the compensation arrangements provided for in the 1886 Act, how they were implemented following the riots and what changes might be made both to the Act and to future arrangements, including the definition of a riot and who should be liable. This report sets out his findings and recommendations. He concludes that the Act should be replaced with a new version in which the Police would continue to be liable under the Act. He also says that the claims process needs to be faster and more efficient to ensure that smaller businesses are given the help they need to get back on their feet quickly. (8 November 2013)

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

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Public Health

King's Fund: Health and wellbeing boards – One year on: this briefing examines how HWBs have used their shadow year, what they have achieved, and whether they are providing effective leadership across local systems of care. The report, based on a survey of nearly half of the 152 HWBs, shows that local authorities have brought strong leadership to establishing the Boards and report good relationships with CCGs. Most have prioritised public health inequalities allaying concerns about the transfer of this remit to local authorities. However, there is little sign they have begun to grapple with immediate issues such as reconfiguration and integrated care, with the latter only mentioned by nine respondents. (31 October 2013)

LGA:  Money well spent? Assessing the cost effectiveness and return on investment of public health interventions: this briefing for councillors and officers explains the importance of assessing value for money in helping local authorities fulfil their public health responsibilities. (5 November 2013)

Public Health England: Framework agreement between the Department of Health and Public Health England: this document defines the critical elements of the relationship between the DH and PHE. It focuses on how DH and PHE will work in partnership to serve the public and the taxpayer, and how both DH and PHE discharge their accountability responsibilities effectively. The document should be read in conjunction with PHE’s Code of Conduct, which incorporates both the Civil Service Code and PHE’s professional responsibilities. (15 November 2013)

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

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Regulatory Services

Aylesbury Vale DC v Call a Cab Ltd and Raja (Unreported, Div Ct): a taxi company and its owner were prosecuted by the local authority under s.46 of the Local Government (Miscellaneous Provisions) Act 1976 for operating a taxi without a licence in a controlled district. Section 45(3) stated that in order to establish the offence, the local authority must, before passing a resolution that the Act applied to an area, have served notice of its intention to do so on each affected parish within the controlled area. It was a defence to a charge to show on the balance of probabilities that the resolution was flawed and had not been passed. The prosecution produced minutes from local authority's committee meetings which had authorised its secretary and solicitor to serve the notices but offered no evidence that any parish had been so notified. R had obtained minutes from some relevant parish council meetings which contained no mention of the resolution. The district judge was therefore satisfied that the requirements of s.45(3) had not been complied with and acquitted C and R.
The court held that the judge's decision was not irrational and there was sufficient evidence on which he could reasonably conclude that the requirements of s.45(3)(b) had not been satisfied. However, he should have gone on to consider whether there had been substantial compliance with the Act and whether the breach had invalidated the resolution. Although the language of s.45 clearly made it a requirement that notice should have been given to each parish council, reading the Act as a whole, if there was substantial compliance and no prejudice to the respondents, the resolution was not invalid. A failure to notify some parishes did not inevitably mean that the district judge should have found that there had been no substantial compliance, but he reached no view on the issue. He was not, therefore, obliged to dismiss the prosecution and the matter was remitted to him to consider his view on whether there had been substantial compliance and the validity of the resolution. (12 November 2013)
The judgment is available from Lawtel (password required)

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

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Committee on Standards in Public Life: Strengthening transparency around lobbying: the Committee began a review earlier this year to apply the Nolan Principles to lobbying and consider how best the lobbied and lobbyists could live out those principles. The Committee has concluded that a package of measures is urgently required to deliver a greater culture of openness and transparency around lobbying, provide greater clarity for public office holders on the standards expected of them and to reassure the public that a more ethical approach to lobbying is actively being applied by all those involved in lobbying. (5 November 2013)

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

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Wales Office: Powers for Wales in biggest devolution in decades: the Secretary of State for Wales has announced plans to facilitate infrastructure investment in Wales, in order to stimulate economic recovery and build growth in the Welsh economy. The Government will extend Wales' existing borrowing powers and will also devolve other tax and borrowing powers, including Landfill Tax and Stamp Duty Land Tax, as recommended in the Silk Commission’s first report. This will enable the Welsh Government to fund upgrades to the key routes on the trans-European road network - the M4 in South Wales and the A55 in North Wales. There will be a referendum on whether some of Welsh people's income tax should be devolved to the Welsh Government, in the same way as it is in Scotland. (5 November 2013) 

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

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