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||Procurement|
|Children's Services||Regulatory Services|
|Economic Development||Tortious Liability|
|Education||Traffic and Transport|
Care Act 2014: this Act has now received Royal
Assent. The Act implements reforms set out in the 2012 White Paper
"Caring for our future: reforming care and support" and the
recommendations of the Dilnot Commission and the Law Commission. It
also gives effect to elements of the Government’s initial response
to the Mid Staffordshire NHS Foundation Trust Public Inquiry. It
consolidates existing legislation for adult social care in England
into a single framework, and introduce reforms to the way care and
support is accessed and funded. It also includes reforms to the
regulation of health services and care standards,
and establishes Health Education England and the Health
Research Authority as statutory non-departmental public
It includes a set of legal principles that govern how local authorities are to carry out their care and support functions for adults. The overarching principle is that local authorities must promote the well-being of the adult when carrying out their functions under the Act in relation to that adult. The Act maps out the process of assessments, charging, establishing entitlements, care planning, and the provision of care and support, with power to create a cap on the costs of care; it also enables local authorities to enter into deferred payment agreements. The Act also sets out the responsibilities of local authorities and other partners in relation to the safeguarding of adults, including a new requirement to establish Safeguarding Adults Boards in every area, and for ensuring continuity of care where a provider sustains business failure and ceases to provide a service. There will also be a duty of candour on registered health care and adult social care services providers. (14 May 2014)
Commons Library: Social care funding reform – FAQs: the Care Act 2014 provides for a reformed system of funding social care costs. It establishes a cap on care costs to limit what people would pay for care over the period of their lifetime, and for the level of that cap to be reassessed annually. However, the Act does not set out in detail how the reformed system for paying for social care would work – this is to be detailed in regulations. The Government has not yet published its response to the consultation on the detail of how the system would work. This paper provides answers to questions relating to the reformed care system and how it would operate. (15 May 2014)
CQC: Working together to help people raise concerns about adult social care: announces a new arrangement with the Local Government Ombudsman for people who want to raise concerns about adult social care in England, which will make it easier for people to complain about their care. The new process will transfer enquiries between the organisations, saving people’s time and reducing the need for people to repeat information. (12 May 2014)
The Kingsmill Review: Taking care – An independent report into working conditions in the care sector: this review looked at poor working conditions in the care sector and the impact on quality of care, particularly non-payment of the minimum wage, high use of zero hour contracts, low levels of training and the factors associated with poor English language ability. It concludes that the care sector is in crisis – as well as the work being physically and emotionally demanding and often undertaken in unsocial hours, there is evidence of widespread exploitation of workers. The review makes a number of policy recommendations, including:
- a Licence to Practise for care managers;
- a ban on "zero hours" contracts;
- local authorities must be required to perform due diligence to ensure that care workers are not being paid less than the National Minimum Wage;
- local authorities follow the principles of the Care Charter, including an end to 15 minute slots, which are associated with non-payment of the minimum wage and poor quality of care.
(14 May 2014)
Solace: Reclaiming children's services: this report outlines the views of Solace members on the future approach that local government should take to improving the lives of children and young people. It sets out the case for councils to use their democratic legitimacy, informal power and role as ‘place-shapers’ to champion better outcomes for all the children and young people in their place. The first part of this report outlines its vision of a future local authority role in promoting great outcomes for children and young people. It then considers some cross-cutting areas for reform which emerge from this vision, looking at the need for significant workforce reform to develop a more blended approach to workforce planning which is underpinned by a strategic commitment to integrated, holistic services. Finally, it calls on councils to embrace this ambition and use everything at their disposal to champion the cause of the children and young people in their area. (8 May 2014)
DBIS: Focus on enforcement – Review of enforcement in the childcare sector: summarises the findings of the Focus on Enforcement review of the Early Years Childcare sector, which considered compliance and enforcement activity in England by national regulators and local authorities in respect of the regulation of childcare providers, nurseries and pre-schools for children in the early years age group, in order to to identify any aspects of that compliance and enforcement activity that appeared to be unreasonably holding back those operating (or potentially operating) in the sector. The review also considered the impact on business of non-statutory third-parties who can also impose a compliance burden, as well as seeking examples of good practice. Key findings were:
- concerns that some smaller providers found guidance too long and hard to understand;
- inspections were sometimes inconsistent and inaccurate;
- some providers felt unable to challenge findings of an inspection and that there was confusion around boundaries between different regulators and a shortage of accessible advice on how to comply.
Ofsted has published its response to the revew, in which it states that it will issue clearer and simpler guidance on childcare, together with less confusing and bureaucratic advice for porviders on how to meet regulatory requirements, enabling them to focus more clearly on maintaining standards and safety. (15 May 2014)
HC Public Accounts Committee: Promoting economic growth locally: this report examines the Government's new approach to local economic growth that was set out in the White Paper Local growth: realising every place’s potential. It looks at DCLG's and DBIS's range of new initiatives for promoting local economic growth, including Local Enterprise Partnerships, the Regional Growth Fund, Enterprise Zones, the Growing Places Fund and City Deals. It finds that initially the programme lacked clarity and coordination between the initiatives, and progress in creating jobs has so far fallen below the Departments’ initial expectations. The Departments have not spent the money available as quickly as expected and they now face a challenge in spending the funds available by the end of 2014-15; they also need to address the problem of some intermediaries having been too slow to distribute funds to front-line projects. The Committee makes a number of recommendations for the Department's supervision of initiatives, including that for any initiative which distributes money through intermediaries, the Departments should introduce binding milestones into future contracts and agreements for distributing funds. It advises that they should adopt a more coordinated and strategic approach when introducing the new growth deals next year, including setting out the basis for how the programme will be monitored and evaluated, and what action they will take if performance falls short. The Departments should also set out clearly the information that they expect LEPs to publish, covering their own funding and structures, as well as data to enable comparisons of their impact. (16 May 2014)
DfE: School admission of children adopted from local authority care – For local authorities, school admission authorities and parents: non-statutory guidance for admission authorities managing the admission of previously looked-after children, as set out in the School Admissions Code. It confirms the wider interpretation of the Code, namely that priority school admissions be given to all children adopted from care who are of compulsory school age, and not just those adopted from care under the 2002 Act. It sets out the implications of this for those admission authorities that have applied the narrower interpretation and limited highest priority to those adopted from care since 30 December 2005. The advice looks at what changes may be needed in relation to both the allocation of school places for the academic year 2014-15 and the determined admission arrangements for the following academic year 2015 -16. (13 May 2014)
DfE: The constitution of governing bodies of maintained schools: this statutory guidance explains the arrangements for the constitution of governing bodies of all maintained schools that were formed on or after 1 September 2012 or whose instrument of government has been changed on or after 1 September 2012. The guidance contains a table showing the constitution of governing bodies by category of governor and also a model instrument of government. (15 May 2014)
DfE: Advice on the admission of summer born children – For local authorities, school admission authorities and parents: updated non-statutory guidance that explains the framework within which admission authorities must operate. It aims to dispel some of the myths that appear to have arisen around the admission of summer-born children. (7 May 2014)
DfE: Improving food in hospitals and schools: sets out the Government's response to Sustain’s school and hospital food campaign. The Government does not agree with Sustain’s view that legislation is necessary for improvement. With regard to school food standards, it considers that school leaders are best placed to make decisions about the day-to-day running of their schools. Whilst there is no requirement for schools to serve food from British farmers and fish from sustainable sources, a number of schools already do so, and the proposed revised school food standards state that wherever possible, foods should be prepared in the school’s own kitchen from fresh, locally sourced ingredients. The DfE's review of school food, the School Food Plan, found that academies are largely meeting or even exceeding the food standards, but that there is still room for improvement in some, which mirrors the situation in maintained schools. In addition, Ofsted has amended its supplementary guidance so that inspectors consider behaviour and culture in the dining hall and the way that a school promotes healthy lifestyles. (8 May 2014)
DfE: Supporting pupils at school with medical conditions: updated statutory guidance for supporting pupils with medical conditions. The DfE has provided templates as an aid to schools which they may adapt as they wish to meet local needs. There are also links ot other resources. (13 May 2014)
EFA: Care to Learn guide for 2014 to 2015: provides information to all those involved in the delivery of the Care to Learn scheme in the 2014/15 academic year. It gives general information about the eligibility criteria for the scheme which has been set by the EFA The scheme helps young parents under the age of 20 to continue in, and return to, education after the birth of a child by providing funding for childcare whilst the young parent is engaged in a study programme and is therefore not able to provide care for their child. It can also assist with the cost of associated travel costs.(13 May 2014)
Local Government Pension Scheme (Offender Management) (Amendment) Regulations 2014 (SI 2014/1146): these regulations, which come into force on 1 June 2014, amend the LGPS Regulations 2013 (SI 2013/2356) to enable continued membership of the LGPS by probation staff in England and Wales notwithstanding changes to the employment arrangements of those staff. They provide for the benefits of all probation service employees (past and present) to be administered by one administering authority and for the transfer of all past service liabilities in relation to those employees to that one authority. (6 May 2014)
LGA: Briefing – House of Lords debate on a Motion relating to Delegated Legislation: this briefing issued ahead of the House of Lords debate on the motion related to delegated legislation which has ramifications for elected councillors' pensions, sets out key messages on the Local Government Pension Scheme (Transitional Provisions, Savings and Amendments) Regulations 2014 which turn the LGPS) from a final salary scheme to the career average system. The changes took effect from 1 April 2014. The LGA believes that ceasing the future accrual of English councillors' pensions beyond the end of their current term of office is unfair and undermines the commitment councillors make to their local communities. It therefore supports the motion of regret moved by Lord McKenzie of Luton that the Transitional Regulations will unfairly exclude elected councillors in England. (13 May 2014)
Bevan Brittan's byte-size procurement updates: we have published two more articles in our series of "byte size" legal updates, in which we look at the new Public Sector Directive and deconstruct it into a topic based approach. For each topic we provide a brief explanation of the most relevant new and updated provisions in the new Directive. We also highlight some of the practical implications of those provisions:
- Statutory time limits under the Public Sector Directive 2014/24/EU Part 2 - Competitive Dialogue Procedure and Competitive Procedure with Negotiation.
- Competitive procedures where negotiation is permitted.
DEFRA: Dangerous dogs – Owners face tougher sentences for attacks: announces the coming into force of changes to the Dangerous Dogs Act 1991 which mean that dog owners who allow their dog to attack people or assistance dogs will face tougher prison sentences. Dog owners can also now face prosecution if their dog attacks a person in their home or on any private property, except if they attack a trespasser. Local authorities and the police have new powers to prevent dog attacks, which apply if a dog is causing a nuisance to people, e.g. by repeatedly escaping from a garden, or by acting aggressively towards visitors or other animals. In such situations, local authorities or the police can require the owner to do things like mending fences, attending dog training classes with their dog, or muzzling the dog in public. (13 May 2014)
DfT: Ministerial correction: the Transport Minister has made a statement to Parliament correcting a previous statement on proposed government reforms to taxi and private hire vehicle regulations. He states that Law Commission will later this month present the Government with both a comprehensive review of taxi and private hire legislation as well as a draft Bill; however, the Government has no plans to introduce a dedicated taxi bill in the final Parliamentary session. Instead, it will consider the detailed findings of, and recommendations made, by the Law Commission before setting out its thinking on each in due course. (13 May 2014)
Licensing Act 2003 ( Mandatory Conditions) Order 2014 (SI 2014/1252): this Order, which comes into force on 28 May 2014, is made for the promotion of the licensing objectives in the 2003 Act. It introduces a further mandatory condition, applicable to all premises licences and club premises certificates, which will prohibit licensed premises from making a sale or supply of alcohol below the “permitted price”. This is defined as the aggregate of the duty chargeable in relation to the alcohol and the amount of that duty multiplied by a percentage which represents the rate of VAT chargeable in relation to the alcohol. (14 May 2014)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Manolete Partners Plc v Hastings BC  EWCA Civ 562
(CA): the Council appealed against a decision that it
was liable to pay compensation to the operators of a business on a
seaside pier, which the Council had temporarily closed to the
public in the exercise of its powers under s.78 of the Building Act
1984. MP, as assignee of one of the tenants operating businesses on
the pier, claimed compensation for loss of profits during that
period under s.106 of the 1984 Act. The principal issue in the
appeal was whether the operators of the business on the pier were
"in default" within the meaning of s.106(1) of the Building Act
The court held, dismissing the appeal, that the tenant had no responsibility for the structure of the pier and was not responsible for the defects which had developed. The proposition that the tenant would be in breach of the Occupiers' Liability Act 1957 or the Heath and Safety at Work Act 1974 by admitting the public onto its business premises did not constitute a defence to the claim under s.106 of the 1984 Act. Likewise the Council could not rely upon those matters as the basis of a defence of ex turpi causa. (7 May 2014)
Abbott (Widow and Administratrix of the Estate of Denis
Abbott deceased) v Cannock Chase DC (Unreported,
QBD): A claimed for damages for personal injury
against the local authority. A's husband D had
been employed by the local authority as a bricklayer. Before
his death from mesothelioma in 2014, D made a written
allegation that he had been exposed to asbestos when working at the
authority's cemetery in the 1970s. Three separate asbestos
surveys of the cemetery had found no relevant asbestos.
The court held, dismissing the claim, that A had not discharged the burden of establishing that D had been exposed to asbestos fibres and/or dust during the course of his employment with the local authority. Whatever D had genuinely believed, A had not discharged the burden of showing that D had used any form of plaster or decorative covering which contained asbestos whilst working at the cemetery. (15 May 2014)
The judgment is available on Lawtel (password required).
If you wish to discuss any of the items noted in this section please contact Paul Taverner.
Welsh Government: Active Travel Action Plan:
seeks views on proposals for a new Active Travel Action Plan, which
will replace the Welsh Government’s Walking and Cycling Action
Plan. The Active Travel Action Plan complements the Active Travel
(Wales) Act 2013 and its associated guidance documents. The Plan
sets out the actions that the Welsh Government and partners will
take to encourage more people to walk and cycle more often for more
journeys. It also sets out how it will monitor progress in
increasing the uptake of active travel modes.
The Welsh Government is also consulting on draft Statutory Guidance for the delivery of the Active Travel (Wales) Act 2013, which sets out the processes and procedures that local authorities should follow to deliver the requirements of the 2013 Act, and on draft Design Guidance on the location, nature and condition that a walking and/or cycling route should achieve to be considered an active travel route.
All three consultations close on 4 August 2014. (12 May 2014)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
DWP: What PIP means for local authorities: this briefing explains how Personal Independence Payment (PIP) affects local authorities. It covers: the impact on sharing of data between benefit systems; how access to other disability benefits and services is affected; exemption from the benefit cap; and where to go for further guidance and support. (6 May 2014)