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 four 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    Health and Social Care
   Adult Social Services    Housing
   Children's Services    Legislation
   Commons and Village Greens    Licensing
   Communities    Members
   Delivery of Services     Performance
   Economic Development    Police
   Education    Procurement
   Equality and Discrimination    Public Health
   Finance    Standards
   Fraud    Transport


Access to Information

Wirral BC v Information Commissioner (Dismissed Freedom of Information Act 2000) [2014] UKFTT 2013/0235 (GRC): this case concerned an FOI request for disclosure of all the Council's correspondence with a law firm. The Council had appointed an independent consultant, AKA, to undertake an investigation following whistleblowing claims by a former employee. AKA then instructed the law firm to advise on certain matters in connection with her inquiry and report. The Council published AKA's report, which was critical of the Council. The council refused to disclosed the requested information, claiming that it was exempt under s.41 FOIA 2000 (confidential information) and under s.42 (legal professional privilege). The IC concluded that the Council was not entitled to rely on s.41 in relation to some of the information as it was not provided by another party and had not provided sufficient justification for the application of s.41 to the remainder of the information. The IC therefore required the Council to disclose the requested information.
The First Tier Tribunal held, allowing the Council's appeal, that the information was exempt under s.41 and s.42. Regarding the s.41 exemption: AKA would have agreed to the Council being provided with correspondence between the company and the law firm on the reasonable expectation that the information would remain confidential in the hands of the Council. The withheld information therefore had the necessary quality of confidence and was transmitted in circumstances imparting an obligation of confidence and so its disclosure would be likely to cause detriment to the law firm as confider of the information to the Council. Disclosure of this information to the public would undermine the concept of the confidential nature of legal professional privileged material as if such a disclosure were permitted under FOIA in such circumstances, a legal adviser would not be able to advise a client that its advice would remain confidential in the event that the client chose to share that advice with a third party. Therefore, disclosure of the information would affect the reputation of the law firm if it were known that its confidential legal advice would be disclosed under FOIA in certain circumstances and as such the disclosure of the withheld information would give rise to an actionable breach of confidence by the law firm against the Council. The public interest in disclosure of this particular information was very limited and it was unlikely that a public interest defence would have succeeded. 
Regarding the s.42 exemption: the disputed information attracted common interest privilege and so was exempt under s.42. Advice privilege extended not only to the advice itself but to all communications for the purposes of obtaining that advice. While common interest cases often involved two parties using the same lawyers, this was not a requirement for common interest privilege to apply. AKA could assert that privilege. The disputed information was correspondence with the  lawyers she was instructing, but all of these communications were part of the process of obtaining and giving legal advice related to the confidentiality / disclosure issues. The IC had argued that there was insufficient commonality of interest here as AKA and the Council could have conflicting interests. But it had been agreed that the law firm would be instructed by AKA, with the Council covering the cost of their services to AKA in connection with her work, so on this issue regarding the tension between confidentiality and disclosure, the interests of the Council and AKA were directly aligned. If they deliberated and acted jointly on this issue, there could be no conflict between their interests. (30 May 2014)

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

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Adult Social Services

LGO: Review of Adult Social Care Complaints 2013: this report sets out complaints statistics for private social care providers and local authorities. It highlights how the LGO has seen a 130 per cent increase in adult social care complaints since it took on responsibility for registered private care providers in 2009, making it the fastest growing area of the LGO’s work, with the highest uphold rate for all areas of complaints. In the last year, there were 2,456 complaints and enquiries about adult social care – a 14 per cent increase. The LGO also sets out a vision for future social care complaints, calling for a set of common standards for complaint handling, mandated data returns to CQC, clear signposting obligations, and the right to advocacy support when complaining about care services. (28 May 2014)

DH: Adults’ personal social services – Main NHS transfer, Better Care Fund preparation, specific revenue grants and capital grant allocations for 2014/15 (LASSL(DH)(2014)1): this letter clarifies the transfer of NHS money to local authorities to support social care with a health benefit. It covers both the main NHS transfer and Better Care Fund preparation. The letter also confirms adults’ personal social services specific revenue and capital grant funding for local authorities for the period 2014 to 2015. (4 June 2014) 

Haringey LBC v CM [2014] EWCOP B23 (CoP): CM objected to the Council's application to be appointed as GW's deputy for property and affairs. GW was a 91 year old man with Alzheimer's disease, who lived in a care home. CM was his niece. A safeguarding alert had been raised for financial exploitation after GW disclosed on the ward that he was concerned about his finances. He stated that he did not wish CM to deal with his money. Later, he made a will appointing CM his executor and leaving her his whole estate. The Council applied to the Court of Protection to be appointed as his deputy for property and affairs. CM submitted that, while she accepted that a deputy needed to be appointed, she believed it was in GW's best interests that she continue to assist with his financial affairs.
The court held, allowing the Council's application and dismissing CM's objection, that although GW's views were neither reliable nor consistent, it was reluctant to override his rights and his expressed will and preference that CM should not be appointed as his deputy. CM had not always been willing to let GW's interests have priority over her own and she was not free of conflict of interest and undue influence. The court would appoint the Council as GW's deputy for property and affairs, on the basis that it was in GW's best interest to retain some day to day control over his expenditure. The court set a weekly amount of £200 to be paid into an account under GW's control from which he could withdraw money as and when he chose. The remainder of his assets would be managed by the Council as his deputy and invested in accordance with professional advice. (9 June 2014)

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: The Children Act 1989 guidance and regulations – Volume 3: Planning transition to adulthood for care leavers: revised statutory guidance for local authorities on their functions under Part 3 of the Children Act 1989 when helping care leavers aged 16 and 17 prepare for adulthood. The regulations and guidance are designed to ensure that care leavers are given the same level of care and support that their peers would expect from a reasonable parent and that they are provided with the opportunities and chances needed to help them move successfully in to adulthood. This  is Volume 3 in a series of five related statutory guidance publications. (20 May 2014) 

DfE: New rules to overhaul adoption: announces changes to the adoption process following the February 2014 consultation on four sets of draft adoption regulations and draft statutory guidance in England as a result of Part 1 of the Children and Families Act 2014. The changes include new rules requiring local authorities to actively consider fostering for adoption places where appropriate and a mandatory requirement on all local authorities to tell prospective adopters about their entitlements.
The details are set out in the Government's response to the consultation. The new regulations will come into force on 25 July 2014 and the revised statutory guidance will be published in July. (29 May 2014)

DfE: Evaluation of children’s centres in England: sets out the findings of research into the effectiveness of children's centres in England at providing services to eligible families. The evaluation studies the management, organisation and programmes offered in the centres. It includes a longitudinal study of families and children who used these children’s centres, and a cost-benefit analysis of the programme. (11 June 2014)

DfE: Payment by Results in Children’s Centres evaluation: this research report summarises the findings of a trial of payment by results (PbR) in children’s centres. The trial looked to test the effectiveness of PbR in local decision making and on what works in terms of the practical implementation of a national PbR scheme. It also sought evidence on on how local schemes were developed and on the conceptual and practical challenges to creating local PbR models for children’s centres. (11 June 2014)

Re DE (A Child); A Father v SBC [2014] EWFC 6 (Fam Ct): this case considered the question of how the court should determine an application by parents for an injunction under the Human Rights Act 1998 (HRA) to prevent a local authority removing their 2 1/2 year old child, D, who was living at home under a care order. The judge held that the District Judge's decision to refuse the father's application for an injunction under s.8 HRA was plainly wrong. He allowed the father's appeal and remitted the case for a contested hearing of the injunction application. However, the judge considered that, given that D had been away from home for three weeks, it would not be right to order his return to his parents when he might have to be removed again in less than two weeks. 
The judge gave guidance on measures to be taken in future cases where a final care order had been made on the basis of the child remaining at home, where the local authority later concluded that a child should subsequently be removed. These include:

  • where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is the option of last resort. It must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process;
  • when a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal, consult with the parents and keep a written record recording the reasons for its decision. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(23 May 2014)

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

R (Barkas) v North Yorkshire CC [2014] UKSC 31 (Sup Ct): B appealed against the Council's refusal to register a playing field as a 'town or village green' under s.15 of the Commons Act 2006. The field formed part of a larger parcel of land that had been acquired in 1951 by the Council's predecessor. Most of the land had been developed as housing and the field was laid out and maintained as recreation grounds pursuant to s.12(1) of the Housing Act 1985. The field had been used extensively and openly by local inhabitants for over 50 years for informal recreation, largely for children playing and walking dogs; it had also been used up to 2005 for local league football matches, with the Council's licence. The local neighbourhood council's application to register the field as a town or village green was refused, as the independent inspector concluded that inhabitants' use of the field for recreational purposes had been 'by right' and not 'as of right'. B, a member of the neighbourhood council, applied for judicial review of this decision. Her application was refused and her appeal dismissed. On appeal to the Supreme Court, the issue was whether, where land was provided and maintained by a local authority pursuant to s.12(1) of the Housing Act 1985 or its statutory predecessors, the use of that land by the public for recreational purposes was 'as of right' within the meaning of s.15(2)(a) of the Commons Act 2006.
The court held, dismissing the appeal, that so long as land was held under a provision such as s.12(1) of the 1985 Act, the public had a statutory right to use the land for recreational purposes, and therefore they used the land 'by right' and not as trespassers, so no question of user 'as of right' could arise. The public had been using the field for recreational purposes lawfully or precario, and the 20-year period under s.15(2) of the 2006 Act could not start to run unless and until the Council lawfully ceased to hold the field under s.12(1) of the 1985 Act. The right alleged by the Council to be enjoyed by members of the public over the field was not precisely analogous to a public or private right of way; however, this did not make a difference in terms of legal principle or public policy –members of the public were entitled to go onto and use the land, provided they used it for the stipulated purpose in s.12(1), namely for recreation, and that they did so in a lawful manner. Third parties on the land either had a right in some shape or form (whether in private or public law) to be there, or were trespassers – someone could not have the right to be on the land and yet be a trespasser.
The court distinguished the case of R (Beresford) v Sunderland City Council [2003] UKHL 60 and also held that the decision and reasoning in that case should no longer be relied on. (21 May 2014)

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

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DCLG: A thousand community assets protected in listings bonanza: highlights the numbers of different types of local assets that have been listed under the community asset powers. Also gives details of funding availale to support listing. (26 May 2014)

DCLG: Victoria Cross commemorative paving stones – Guidelines for councils: in August 2013, the Communities Secretary announced a UK-wide initiative to honour Victoria Cross recipients from the First World War. As part of this, commemorative paving stones will be laid in the birthplace of Victoria Cross recipients. This guidance helps local authorities decide the appropriate locations, specifications and timing for laying these commemorative stones. (12 June 2014)

LGA: Councils and charities sign landmark 250th ‘chuggers' agreement: in November 2012, the LGA and Public Fundraising Regulatory Authority signed a joint national agreement to tackle growing concerns about the behaviour of some face-to-face charity collectors on high streets. The agreements regulate the number of fundraisers present, the hours and days when fundraising can take place in specific locations, and outline action and sanctions if charities breach the terms of their individual agreements. Since the agreement was signed, more than 80 councils have signed up with the PFRA. Some councils also now have multiple agreements covering different sites. This press release highlights the positive impact that such agreements have had on communities. (6 June 2014)

DCLG: Protection of bowling greens: this letter to local authority Leaders and Chief Executives highlights how communities and bowling clubs can protect their assets using their community rights and planning protections. (9 June 2014)

DCLG: Infrastructure Bill – The Community Electricity Right: Policy brief: information on the proposed new Community Electricity Right under the Infrastructure Bill. The power, if exercised, gives individuals resident in a community, and / or groups connected with a community, the right to buy a stake in a renewable electricity development in their local area. (13 June 2014)

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

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Delivery of Services

DCLG: The Transformation Challenge Award and Capital Receipt Flexibility 2014 to 2016 – Frequently asked questions: information for local authorities about bidding for the Transformation Challenge Award. The challenge fund consists of a £120m grant (£15m in 2014/15 and £105m in 2015/2016) and a £200m facility to use the capital receipts from asset sales flexibly, to support local authorities re-engineer their business practices and redesign service delivery. (13 June 2014)

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

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Economic Development

DBIS: State Aid – Introduction to Assisted Areas: Assisted Areas are regional locations where additional financial support from the Government can be offered to undertakings, typically businesses, under EC State aid rules. This guide introduces what Assisted Area status can offer under the 2014-2020 State aid framework and the different types of Assisted Area shown on the 2014-2020 UK Map. (21 May 2014)

LGA: New commission calls for evidence to transform non-metropolitan England: announces the launch of the Independent Commission on Economic Growth and the Future of Public Services in Non-Metropolitan England, chaired by Sir John Peace, which will explore the unique characteristics of non-metropolitan economies and their drivers, as well as what more can be done to free up their public services to promote growth and deliver better outcomes for residents. The Inquiry will report this Autumn with recommendations for reform to shape the way economic growth and public service transformation are supported in the future. The Commissioners are seeking evidence from businesses and business organisations, the voluntary and faith sector, and public service providers to help them identify and recommend ways to stimulate economic growth regionally, create new jobs and help people live their lives better. The closing date for submissions is 27 June 2014. (27 May 2014)

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

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DfE: Special educational needs and disability code of practice – 0 to 25 years: this SEND CoP, which is due to come into force on 1 September 2014, helps put into place wide-reaching reforms to the SEND system for children and young people aged 0 to 25 in England. It provides statutory guidance on duties, policies and procedures relating to Part 3 of the Children and Families Act 2014 and associated regulations. It explains the duties on schools to provide reasonable adjustments for disabled pupils and to provide auxiliary aids and services to disabled pupils. (11 June 2014) 

DfE: Draft guidance on transitional arrangements: guidance for local authorities to help plan the transition to the new 0 to 25 special educational needs and disability system from 1 September 2014. The Government has announced £45m new funding to help local authorities prepare for the transformation of SEND support and to put in place a new birth-to-25 system for children and young people with special educational needs and disabilities.
See also Transitional and Saving Provisions (made under s.137 of the Children and Families Act 2014) relating to Part 3 of the Children and Families Act 2014 (children and young people in England with special educational needs or disabilities). (11 June 2014)

Special Educational Needs and Disability Regulations 2014 (SI 2014/1530): these regulations, which come into force on 1 September 2014, set out the detailed requirements on local authorities under Part 3 of the Children and Families Act 2014 for assessing children and young people’s education, health and care needs and, where necessary, drawing up Education, Health and Care plans. They also set out the way in which local authorities and health bodies should review support for disabled children and young people and those with special educational needs and also set out how local authorities and schools must publish information about the support available. (11 June 2014)

DfE: Myths and facts for schools: this document addresses some common misconceptions about running a school. It tackles recurring myths and also includes some new myths on changes happening during the 2013 to 2014 academic year. (22 May 2014)

DfE: Timelines for schools – Mandatory and useful information: DfE has issued revised timelines of forthcoming mandatory legal requirements for schools, to help headteachers, principals and governors plan ahead, prepare for and apply mandatory legal requirements during this academic year and beyond. (22 May 2014)

DfE: Treatment of surplus and deficit balances when maintained schools become academies: statutory guidance for local authorities, maintained schools and academies on what happens to a surplus balance when a school ceases to be maintained by the local authority and becomes an academy. It also sets out what happens to any deficit a converting school may have. It is intended to help authorities comply with their duties, and ensure that deficit or surplus balances are transferred within the statutory timescales. This guidance should be read alongside the Academies Act 2010 and the Academy Conversions (Transfer of School Surpluses) Regulations 2013. (19 May 2014) 

DBIS: Intervention in further education – The strengthened intervention process: sets out how the Further Education Commissioner process helps deal with underperformance in FE corporations and institutions. It sets out the role and purpose of the FE Commissioner and FE Advisers, how the intervention process is operating in practice and how DBIS will be communicating when and where the FE Commissioner will be intervening. DBIS will also be publishing summaries of the FE Commissioner’s findings and conclusions from the individual assessments. These summaries will enable governing bodies and senior executives in all FE providers to learn lessons from the FE Commissioner’s experiences and help them to ensure learners get the high quality provision they deserve. (30 May 2014)

Welsh Government: £1.4bn to modernise and transform schools in Wales: announces funding for the  21st Century Schools programme, which is a commitment to invest in building and improving schools all over Wales, working with local authorities and education partners to deliver school environments that meet the needs of the community and provide the best learning provision for the area. More details are on the 21st Century Schools website. (14 May 2014)

Welsh Government: Legislative proposals for Additional Learning Needs – White Paper: seeks views on sets out proposals to create a fairer system of support for children and young people with additional learning needs in Wales. It outlines proposals to introduce a new legislative framework for supporting children and young people with additional learning needs, which will replace existing legislation for the assessment and provision of support for learners with special educational needs in schools and learning difficulties and/or disabilities in post-16 education and training. The consultation closes on 25 July 2014. (22 May 2014)

DfE: Accountability – Publishing headline performance measures on school and college websites: recent reforms to the accountability system for primary and secondary schools and 16-19 providers require schools and colleges to make the headline performance measures available on their websites in a standard format so that they are easy to interpret and enable parents to compare schools and colleges. This paper seeks views on proposals for how to present the measures clearly whilst minimising burdens. The consultation closes on 4 July 2014. (6 June 2014)

DfE: New accountability arrangements for infant schools from 2016: gives details of how the new reception baseline assessment will change the way that the Government will monitor and fund infant schools from 2016. (6 June 2014)

Welsh Government: Capability of headteachers – Guidance for schools: seeks views on proposed guidance for capability procedures of headteachers as part of the Welsh Government's commitment to raise standards within the maintained school sector in Wales. The draft guidance sets out a constructive approach to achieving improved work performance, and provides clarity on the roles and responsibilities of all those involved as well as detailing the procedures to be followed. The consultation closes on 21 July 2014. (9 June 2014)

HC Public Accounts Select Committee: Education Funding Agency and Department for Education financial statements: this report looks at how the Education Funding Agency (EFA) has succeeded in getting money to schools, local authorities, colleges and other education providers since it was set up in April 2012. It finds that the EFA needs to improve efficiency, transparency and accountability in the education sector, especially in respect of the growing number of academies. It needs complete, accurate and timely data and needs to be more robust in relation to academies that fail to comply with financial reporting requirements. Where the EFA does have the data, it needs to be quicker and smarter at spotting risks and intervening quickly in cases of poor financial management and governance in academies, including free schools. The Committee recognises the scale of the task that the EFA faces as it deals with an expanding workload whilst reducing its costs by 15%, but it states that it is essential that the EFA now gets to grips with effective oversight to improve public confidence in the system. It also recognises that, by consolidating academies into its accounts, the DfE is now providing a more complete picture of spending in the education sector. But the DfE is still struggling to solve the problems of reconciling different financial year ends, of clarifying who exactly owns academies’ land and buildings, and of improving the data it receives from academies. Finally, the EFA must be prompt to act in response to any evidence suggesting conflicts of interests, where academy trusts buy goods and services from individuals and organisations connected to their schools. (10 June 2014)

Education (Small Schools) (Wales) Order 2014 (SI 2014/1133 (W. 112)): this Order, which comes into force on 22 May 2014, defines a "small maintained school" for the purposes of Chapter 1 of Part 2 of the Education (Wales) Measure 2011. Section 11 of the 2011 Measure provides that a local authority may make proposals to federate schools and that certain provisions relating to publication and consultation do not apply to a proposal to federate only small schools. (29 April 2014)

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

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Equality and Discrimination

R (West) v Rhondda Cynon Taf CBC (Unreported) (Admin Ct): W and others applied for judicial review of the Council's decision to cease funding for full-time nursery education for three-year-olds from September 2014. The decision affected 3,300 children and had been made as the local authority faced a funding gap of over £63m over the coming four to five years. In making the decision the local authority considered the results of a consultation process and of an equality impact assessment (EIA). W contended that the local authority had failed to fulfil its duty: to secure childcare sufficient to meet the requirements of parents in the area to enable them to work or undertake education or training under s.22 of the Childcare Act 2006; to secure provision of sufficient nursery education for three-year-olds in the area under s.118 of the School Standards and Framework Act 1998; its Public Sector Equality Duty under s.149 of the Equality Act 2010; to provide childcare for children in need under s.17 and s.18 of the Children Act 1989 ; and to contribute to the eradication of child poverty under s.1 of the Children and Families (Wales) Measure 2010. 
The court held, allowing the application, that W succeeded on the first, second and fourth grounds and the decision would be quashed. (1) The local authority had failed to give due consideration to the sufficiency of alternative childcare places in the area, nor had it had proper regard for s.22 of the 2006 Act, or for the statutory guidance; (2) it had weighed up full-time versus part-time nursery education but had ignored s.118 of the 1998 Act and there was no evidence that it had considered whether 15 hours per week of nursery education was sufficient for children in the area; (3) its analysis of the EIA lacked rigour but was not so deficient that it had failed in its duty under the 2010 Act; (4) there was no proper framework for, or attempt to, analyse the provisions for a child in need and the local authority had not complied with its duties under s.18 of the 1989 Act; (5) the authority was not in breach of the 2010 Measure – the EIA had specifically considered the issue of social deprivation and the consultation report had noted the impact on the most vulnerable. (23 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 Olwen Dutton.

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LGA: Launch of Independent Commission on Local Government Finance: announces the launch of the Independent Commission on Local Government Finance, chaired by Darra Singh, that will examine the system of funding local government in England and make recommendations on how it can be reformed to improve funding for local services and promote sustainable economic growth. The Commission will publish an interim report in autumn 2014 with a view to publishing its final recommendations in early 2015. (2 June 2014)

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2014 (SI 2014/1375): these regulations, which come into force on 30 June 2014, amend SI 2013/3146 regarding the scheme for local retention of non-domestic rates. The shceme requires authorities to recognise in their accounts provision representing liabilities to non-domestic ratepayers for years before 1 April 2013. This amendment allow authorities to offset the effect of that provision in their accounts. This is a temporary measure as the offsetting credit must be fully reversed by the financial year commencing on 1 April 2017. (4 June 2014)

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LGA: Blue Badge fraud prosecutions double: reports that the number of people caught abusing the Blue Badge scheme is on the rise with 686 successful council prosecutions in 2013 – up from 330 in 2010 – as councils crackdown on dishonest motorists robbing disabled people of their independence and their right to easier parking. This press release includes a number of examples of successful prosecutions. (16 May 2014)

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

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Health and Social Care

LGA: A councillor's guide to the health system in England: because councils have important functions in relation to the health of their residents, all councillors need to have an understanding of the health system. This guide gives a quick introduction to the health and social care system since the reforms of 2012 for all councillors who do not lead on health issues. It contains a brief outline of the purpose of the reforms and how they are intended to improve health, a description of the different parts of the health system and their interrelationships with each other, with social care and the wider role of local government, and  a discussion of the role and potential contribution of elected members to health. (15 May 2014)

LGA: Health and wellbeing board priorities across England: this interactive map is designed to support health and wellbeing boards and provide a practical tool that stimulates collaboration. It enables users to search the priorities of health and wellbeing boards across England, view the health and wellbeing strategies for each area and explore data reports containing key measures of health and wellbeing at local authority and ward levels. (4 June 2014)

MHP Health: All in this together?: this report investigates how councils are using the Better Care Fund. It includes findings from an extensive audit of how the money for health to social care transfers has been allocated across 2012-13 and 2013-14. The findings have significant implications for the Better Care Fund, half of which is due be financed through a transfer of funds from health to social care – the same money audited by this research. Current practice suggests that, in the absence of evidence about effective interventions that support integration and in light of current funding challenges for social care, the funding will be used to meet rising social care needs rather than transform services. (14 May 2014)

DH: The Care Act 2014 – Consultation on draft regulations and guidance for implementation of Part 1 of the Act in 2015/16: seeks views on draft regulations and guidance on the care and support reforms in the Care Act 2014 which come into effect in April 2015. The guidance is intended to provide local authorities with the information they need about how they should meet the legal obligations under the Act and the regulations, and will be used by local authority officers to plan care and support. The guidance will also be used by people using care and support, their families, the voluntary sector and providers of care and support to help them understand the new system. The consultation closes on 15 August 2014. (4 June 2014)
The DH has also published a number of factsheets to accompany Part 1 of the Care Act 2014, which provide an overview and the duties and powers that local authorities will have in the future.

DH: Care Bill Implementation Grant Determination (2014/15) [No. 31/ 2325]: the Care Bill Implementation Grant is a new, one off grant that the DH is making available to support local authorities to implement the Care Act 2014 from May 2014 to 2015. The grant determination is accompanied by a Memorandum of Understanding which explains what the DH expects from recipient local authorities. (4 June 2014)

DH: New offences of ill-treatment or wilful neglect – Government response to consultation: sets out the Government's response to the February 2014 consultation on the details of a new criminal offence of ill-treatment or wilful neglect of users of health and social care services. It states that in light of support for the proposals, the Government will proceed with its plans. There will be two offences, one relating to individuals, and a separate one relating to organisations. They will apply to: 

  • all formal healthcare provision for adults and children in both the NHS and private sector, other than in specific excluded children’s settings and services; 
  • all formal adult social care provision, in both the public and private sectors, including where care is self-funded; and 
  • individuals and organisations paid to provide or arrange for the provision of these health and adult social care services, but with the offence for organisations formulated differently from that for individuals.

The penalties for individuals will be similar to those for the offence of ill-treatment or wilful neglect of persons without capacity under s.44 of the Mental Capacity Act 2005, while for organisations, they will include fines, and/or the issuing of publicity orders and remedial orders, similar to those for corporate manslaughter in the Corporate Manslaughter and Corporate Homicide Act 2007. The Government will establish these two offences through amendments to the Criminal Justice and Courts Bill, which is currently proceeding through Parliament, with the aim that the new offences come into effect in 2015. (11 June 2014) 

Welsh Government: Residential placements for adults – Draft regulations and guidance on cross-border placements, dispute resolution and business failure: the Care Act 2014 sets out principles on cross border placements, when an adult’s need for care and support is best met with care in a different part of the UK. It also imposes duties on local authorities to meet care and support needs where registered providers of care suffer business failure. This consultation seeks views on draft guidance on cross-border placements, business failure and dispute resolution. The closing date for comments is 19 August 2014. (10 June 2014)

R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712 (CA): the issue in this case was which of two local authorities had responsibility under s.117 of the Mental Health Act 1983 for the aftercare of a person who had originally been made the subject of a hospital order with restrictions by an order of the Crown Court, and who had been conditionally discharged for the second time from detention at a hospital.
The court held that, where a person has been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of s.117(3) of the Act he was still to be treated as "resident in the area" of the same local authority as that in which he lived before the original hospital order was made. It was therefore unnecessary to consider whether or not a fresh duty to provide after-care services arose on his second discharge earlier this year – whether the duty was a fresh one or a continuing one, here it was Wiltshire's duty. (22 May 2014)

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

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DCLG: Guidance on rents for social housing: guidance for stock-owning local authorities on the Government’s policy on rents for social housing from April 2015 onwards. Local authorities must have regard to this guidance when setting rents for their housing stock.
See also Rents for social housing from 2015-16 – Consultation: Summary of responses and the Secretary of State's Direction on the Rent Standard 2014, which applies to standards set by the Social Housing Regulator in relation to rent for registered providers from 1 April 2015. (23 May 2014)

DCLG: Affordable Rent to Buy – Working paper: Affordable Rent to Buy is a new model for providing affordable housing through recoverable government investments. It will help people who need a limited period of support through a sub-market rent before they can achieve their aspiration of home ownership. The Spending Round 2013 announced that £400m of government funding will be made available in 2015-17 to pilot the model. This document describes the key principles of the model and our current thinking about more detailed aspects of its design. DCLG will use this to inform discussions with prospective bidders and other interested parties ahead of planned publication of the bidding guidance for this programme in summer 2014. (27 May 2014)

DCLG: Government initiatives to help build more new homes on brownfield land: announces further reforms to planning rules which will provide permission for up to 200,000 new homes. To deliver this, councils will be required to put in place pre-approved planning permissions on brownfield sites that are suitable for housing. Local authorities will apply local development orders (LDOs) onto sites and the Government expects over 90% of suitable brownfield land to be covered by 2020. There will be a new £5m fund to help local authorities create the first 100 sites with LDOs. The Government will also consult on a range of measures to enforce this approach, including allowing developers to apply directly to central government where councils have not done enough to remove planning obstacles on brownfield sites. In addition, the Government has launched the Estate Regeneration Fund enabling developers to bid for a share of a £150m loan fund to invest in kick-starting and accelerating the radical regeneration of some of the country’s most deprived social housing estates. (13 June 2014)

DCLG: London housing zones to create 50,000 new homes: announces the creation of 20 new housing zones in London that enable local authorities to remove all unnecessary planning restrictions across the brownfield site and partner with a developer to build new homes, backed by up to £200m of central government loans for infrastructure and clean-up work on the sites. The Government will grant the Mayor substantial powers, in the form of Mayoral Development Orders, to remove planning obstacles in the zones. There are also ten new housing zones outside London. The funding for housing zones will be allocated by competition. The Mayor has published his prospectus inviting bids from local authorities in London; DCLG will publish a prospectus inviting bids from local authorities across the country later this year. (13 June 2014)

Housing (Right to Buy) (Limit on Discount) (England) Order 2014 (SI 2014/1378): a person exercising the right to buy a dwelling-house under Part V of the Housing Act 1985 may be entitled to a discount equal to a percentage of the price before discount. This Order, which comes into force on 21 July 2014, prescribes that the maximum discount is £102,700 for dwelling-houses in London and £77,000 for areas outside London. The Order also prescribes that the maximum discount is adjusted annually from 6 April 2015 to reflect the percentage increase in the consumer prices index. (5 June 2014)

Draft Housing (Right to Buy) (Maximum Percentage Discount) (England) Order 2014: a person exercising the right to buy a dwelling-house under Part V of the Housing Act 1985 may be entitled to a discount equal to a percentage of the price before discount.  The discount is a percentage calculated by reference to the qualifying period calculated in accordance with Sch.4 to the Act up to a prescribed maximum. This Order increases the maximum percentage discount for houses from 60 per cent to 70 per cent. (6 June 2014) 

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

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Queen’s Speech 2014: the Queen has outlined the Coalition Government’s legislative programme for the next year, on the State Opening of Parliament. Bills of particular interest to local government include:

  • Infrastructure Bill: aims to bolster investment in infrastructure by allowing stable long term funding, delivering better value for money and relieving unnecessary administrative pressures. The Bill would increase transparency of information provision and improve planning processes. See also the LGA's Second Reading briefing. The Bill includes:
    • turns the Highways Agency from an executive agency into a government-owned company, with a shake-up of its funding;
    • streamlines the process of applying for a development consent order for building projects of national significance;
    • the Homes and Communities Agency will be able to assume control of land directly from other government arm's length bodies;
    • transfers statutory responsibility for the local land charges register and delivery of local land charges searches to the Land Registry, supporting the delivery of digital services, and extends the Land Registry’s powers to enable it to provide information and register services relating to land and other property;
    • developers will be able to run shale gas pipelines under people's land without their permission, subject to the results of consultation;
    • construction firms will be able to offset the carbon emissions of new homes after they have been built, to meet zero carbon standards due from 2016.
  • Small Business, Enterprise and Employment Bill: includes giving small firms fair access to government and other public sector procurement. There will be tougher penalties for firms flouting minimum wage rules and "abusing" zero hours contracts. Childcare regulations will be made more flexible. Highly paid public sector workers will be prevented from claiming redundancy and returning to the same line of work within 12 months;
  • Modern Slavery Bill: consolidates and simplifies existing modern slavery offences to provide clarity and focus when prosecuting slave drivers and traffickers. It increases the maximum sentence to life imprisonment, with an automatic life sentence for those who have a previous conviction for a serious sexual or violent offence. Public bodies, including local authorities, will have a statutory duty to notify the National Crime Agency about potential victims of modern slavery;
  • Serious Crime Bill: strengthens the laws on recovering criminal assets and extends the scope of serious crime prevention orders. Creates a new offence of causing psychological harm to children through parental neglect. Makes habitual as well as permanent residents of the UK liable for prosecution for female genital mutilation;
  • Social Action, Responsibility and Heroism Bill: requires that where any negligence or breach of statutory duty claim is brought against an individual or an organisation,  the court must consider, when determining the steps the defendant should have taken to meet the applicable standard of care, whether the defendant was acting for the benefit of society, demonstrating a generally responsible approach towards protecting the safety of others, or intervening in an emergency;
  • Draft Governance of National Parks (England) and the Broads Bill:  will allow direct elections to be held for key positions in England's 10 National Park Authorities and the Broads Authority and will enable parish councils to choose their representatives on the authorities from a wider group of candidates;
  • Draft Riot (Damages) Bill: modernises the system for compensating individuals and businesses that have been victims of criminal damage and financial loss as a result of riots. Subject to consultation, damage to vehicles will be covered, with a cap on payments to very large businesses and their insurers. It will establish a riot-claims bureau.

The Speech also announces: the introduction of a 5p charge on all single-use plastic carrier bags in England; increasing housing supply and home ownership by reforming the planning system, enabling new locally-led garden cities and supporting small house building firms; basic need funding for new school places; and support for more schools to become academies and for more Free Schools to open. 
Six Bills from the 2013-14 Parliamentary session, including the Deregulation Bill and the High Speed Rail Bill, are carried over to the 2014-15 session, i.e. they resume progress in the new session without having to start the Parliamentary process afresh.
For further details, see the Government's Background briefing notes and the LGA's On the day briefing. (4 June 2014)

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

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Home Office: The Community and Ancillary Sellers Notice: updated fact sheet on the CAN, a new, light touch, low cost authorisation under the Licensing Act 2003 which will benefit particular small businesses and community groups who wish to sell or provide small amounts of alcohol in limited circumstances as an ancillary part of a wider service or an organised event, without any other form of licensing authorisation. (22 May 2014)

Home Office: Revised guidance issued under section 182 of the Licensing Act 2003: updated statutory guidance to licensing authorities on the carrying out of their functions under the 2003 Act. It also provides information to magistrates’ courts hearing appeals against licensing decisions. It has been made widely available for the benefit of those who run licensed premises, their legal advisers and the general public. (4 June 2014)

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

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LGA: Councillors' guide – A guide for new councillors 2014/15: this guide is designed to provide new members with the key information that they need to know. It explores some of the main issues and challenges facing local government today and includes useful hints and tips from experienced councillors. (22 May 2014)

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

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LGA: Evaluation of sector-led improvement – Final report: presents the findings from the LGA's evaluation of its coordinated approach to sector-led improvement across local government, the support being provided and where to go for further information and advice. It shows that more than two-thirds of people (70%) are very or fairly satisfied with the way their council runs things. Furthermore, when people were asked whether they trusted councils or government most to make decisions about how services were provided in their local area, 77% said local councils. Objective assessment of council performance across a range of nearly 100 indicators, such as percentage of household waste recycled, provides firm evidence that councils have maintained, and in many cases improved, their performance. (22 May 2104)

DCLG: Improving planning performance – Criteria for designation: under s.62A of the Town and Country Planning Act 1990, certain planning applications may be made directly to the Secretary of State, where the local planning authority for the area has been designated for this purpose. This document sets out the criteria which the Government intends to use to designate local planning authorities if their performance in handling planning applications falls below a satisfactory level. The criteria have been updated following consultation. (13 June 2014)

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

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Home Office: Consultation on reform of the Riot (Damages) Act 1886: following the independent reivew of the 1886 Act by Neil Kinahan in November 2013, the Government has decided to reform the law on riot compensation payments by repealing the 1886 Act and replacing it with a modernised version. This consultation seeks views on specific measures for reforming the approach to riot compensation payments. The consultation closes on 1 August 2014. (5 June 2014)

R (Police and Crime Commissioner for Leicestershire) v Blaby DC; Hallam Land Management Ltd (Interested Party)  [2014] EWHC 1719 (Admin) (Admin Ct): the PCC applied for judicial review of the Council's decision to grant permission to developers for a new town on a 394 hectare site that was separated from Leicester by the M1 motorway. The PCC contended that the Council had failed to include provisions with the Section 106 agreement to secure adequate and timely contributions towards policing so as to properly mitigate the adverse impact of the development and had also failed to have regard to whether the Section 106 agreement was adequate to achieve the necessary and required mitigation when it granted planning permission. It submitted that the Agreement was therefore fundamentally flawed and failed to achieve what was necessary to make the development acceptable in planning terms, and that the Council had acted irrationally by failing to give reasons for its actions regarding the police contribution and why it had been dealt with differently to other contributions.
The court held, refusing the application, that the PCC's complaint was not a quibble about a minor factor. Although the sums at stake for the police contribution would be small in comparison to the huge sums that would be required to complete the development, the sums were large from the point of view of the police. However, the arguments did not surmount the very high threshold required for establishing irrationality. Although the PCC might feel that its approach had simply been rejected by the developers because it was inconvenient and that its persistence had been an irritant, the Council had considered the matter properly and had reached a rational and sustainable conclusion even if it was not one with which everyone agreed. There was nothing during the various communications that could reasonably have led the PCC to believe that it would be consulted on the specific terms of the Section 106 agreement. The PCC did make representations which were considered – that was as far as any legitimate expectation could take the PCC. (27 May 2014)

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

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Cabinet Office: Procurement Policy Note 07/14 – Implementing Article 6 of the Energy Efficiency Directive: this note explains how the Government is implementing the requirements of Art.6 of the Directive, which requires “central government departments” in EU member states to purchase highly energy efficient products, services and buildings, as set out in Annex III. This is a qualified duty and authorities do not have to buy the default product, service or building where this is not cost effective or does not allow effective competition. The PPN sets out how organisations must comply with the requirements of the Article for purchases made on or after 5 June 2014. (3 June 2014)

Bevan Brittan's byte-size procurement updates: we have published four 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:

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

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Public Health

Royal Society for Public Health: The RSPH guide to commissioning for health improvement: this guide provides an overview of the commissioning process aimed at providers and commissioners of health improvement services. Following the move of public health into local authorities, the guide is intended to assist commissioners adopt strategic approaches and make the most of the opportunities presented by changes to commissioning. The resource has been developed to enable commissioners to explore aspects of the commissioning cycle, including needs assessment, strategy development and risk management. It encourages commissioners to involve local people in health initiatives, enabling them to contribute to their own health outcomes instead of being seen as passive recipients of services and to develop an integrated, multi-faceted approach. (15 May 2014) 

LGA: Health and Wellbeing Boards' priorities across England: this interactive map highlights the priorities of all HWBs across England. You can search either by selecting a theme and the map will highlight all areas addressing related priorities, or you can click on a single area to see a summary of the local priorities, and access links to that area's Health and Wellbeing Strategy along with reports that highlight measures of health and wellbeing for that area. (29 May 2014)

Alcohol Concern: A measure of change – An evaluation of the impact of public health transfer to local authorities on alcohol: this interim report looks at local alcohol services and commissioning following the transfer of Public Health teams to local authorities. Based on a survey of CCGs, Directors of Public Health and service providers in 30 local authority areas, it finds a greater focus on alcohol issues but concerns over funding. (28 May 2014)

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

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Fawcett Society: Sexism and local government – Briefing paper: this paper summarises research on the extent to which women in local government face sexism, with examples of male councillors making sexist, offensive and derogatory remarks about both women generally and their female colleagues. It highlights how, since the abolition of the Standards Board, there are now few routes of redress for councillors who experience sex discrimination. The main option is now to be investigated by other councillors which does not necessarily lead to justice. The Fawcett Society is calling for an autonomous body to be formed which would examine reports of misconduct independently, away from party politics. (21 May 2014)

Heesom v Public Services Ombudsman for Wales; Welsh Ministers intervening [2014] EWHC 1504 (Admin) (Admin Ct): H was a county councillor and had served on Flintshire CC for many years. He appealed against the Adjudication Panel for Wales' decision that he had breached the Council's Code of Conduct by failing to show respect and consideration for council officers, using bullying behaviour, attempting to compromise the impartiality of officers and conducting himself in a manner likely to bring his office or the Council into disrepute. The tribunal disqualified H from being a member of the Council or of any other local authority for 30 months. H contended that the tribunal had erred in adopting the wrong standard of proof, i.e. the civil as opposed to the criminal standard, and that the sanction was disproportionate given the high protection granted by the common law and by Art.10 ECHR to the political expression of elected representatives.
The court held, allowing the appeal in part, that:

  •  the appropriate standard of proof was clearly civil: the proceedings were disciplinary in nature, and the potential consequences of such proceedings for the individual subject were well-recognised as being insufficient to warrant introduction of the criminal standard. The additional potential consequence of depriving electors of their choice of representative was also insufficient;
  • comments by elected politicians were subject to a higher level of protection under Art.10 ECHR. Article 10 protected not only the substance of what was said, but also the form in which it was conveyed, therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, was tolerated. But politicians were subject to wider limits of acceptable criticism so were expected and required to have thicker skins and have more tolerance to comment than ordinary citizens. Non-elected public servants were also open to criticism, but it was in the public interest that they were not subject to unwarranted comments that disenabled them from performing their public duties and undermined public confidence in the administration. Therefore, it was a legitimate aim of the State to protect public servants from unwarranted comments that had, or might have, that adverse effect on good administration. Where critical comment was made of a civil servant, such that the public interest in protecting him as well as his private interests were in play, the requirement to protect that civil servant had to be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression;
  • the tribunal was correct to proceed on the basis that there was a mutual bond of trust and confidence between councillors and their officers, and that H's comments had the potential of impairing that mutual trust.

The court refused H's appeal insofar as it challenged the case tribunal's findings of breach, save for three findings, which it quashed; it upheld the other findings of breach. Regarding the sanction, the tribunal did not err in principle or approach, and its decision to disqualify H was not wrong: in view of the seriousness of the misconduct, disqualification was an appropriate and a proportionate response. However, bearing in mind that Art.10 required the minimum sanction consistent with the aims of maintaining standards in public life, a period of disqualification of 30 months was excessive. The court quashed the sanction imposed by the tribunal and instead disqualified H for 18 months. (15 May 2014)

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

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HC Transport Committee: Local transport expenditure – Who decides?: this report examiones the proposed new arrangements for allocating funding to local transport schemes that will be introduced in 2015. The committee finds that those Local Enterprise Partnerships (LEPs) which are well organised and resourced will have an advantage in bidding for funds but other areas may lose out as a result. In addition, with greater reliance on competitive bidding for funds, it is likely that more money will be wasted on failed bids. It warns that the Government’s focus on using competition to bring in private sector funding for projects could disadvantage the regions, where there tends to be less private sector money available compared with London. DfT must also make sure that strategically significant schemes such as access to ports don’t get overlooked and that areas covered by a number of LEPs do not miss out because of fragmentation. It calls for the new funding arrangements to be reviewed by the end of the next Parliament to ensure that they are efficient and effective in providing funding for the most urgent transport priorities.  (3 June 2014)

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

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