Authority Update

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 two weeks up to 11 July 2014. Items are set out by subject, with a link to where the full document can be found on the internet.


Claire Booth

Claire Booth

Professional Support Lawyer

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    Fraud
   Adult Social Services    Governance
   Audit    Housing
   Children's Services    Local Government Reform
   Competition and State Aid    Procurement
   Delivery of Services    Public Health
   Economic Development    Rating
   Education    Regulatory Services
   Environmental Health


Access to Information

DCLG: Innovation to bring statutory notices into the 21st century: the Local Government Secretary Eric Pickles is calling on local authorities and the newspaper industry together to work together on some voluntary pilots to develop new technology and innovation to modernise statutory notices and better inform the public. This could include paid digital advertising; using location-specific mobile technology; and pooling statutory notices. (9 July 2014)

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

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Adult Social Services

ADASS: ADASS Budget Survey 2014: this survey, based on returns from 95% of adult social services departments, shows that despite the “very welcome help adult social care has received from central government, and the faith and finance that local councillors have invested in us as well” the cash invested in services will reduce by a further 1.9% in 2014-15: a sum equivalent to £266m. ADASS warns that adult social care services in England will soon be `unsustainable’ if current budgetary pressures continue, and significant measures are not taken to inject new money into local social care economies. (2 July 2014)

ADASS: ADASS Procurement Survey report 2014 – Final: summarises the findings of ADASS's first Procurement Survey, based on responses from 119 councils with responsibility for adult social care services regarding their procurement practice. It covers: procuring quality services; price of contracted services; 15 minute homecare visits; National Minimum Wage and travel expenses; and procurement and self-funders. (2 July 2014)

Draft Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: these draft regulations prescribe the fundamental standards which all health and social care providers will be required to meet from 1 April 2015, as a condition of their registration with the Care Quality Commission. There will be criminal penalties for failing to meet some of the standards. The fundamental standards are intended to describe the basic requirements that providers should always meet, and set the standard of care that service users should always expect to receive. These measures were recommended by the Francis Inquiry report and there was a consultation on them in January 2014. The Government’s response to the consultation explains the changes it has made as a result of the feedback. (7 July 2014)

LGA: Get in on the Act – The Care Act 2014: summarise the impact of the Care Act 2014 on local government and the work of the LGA in influencing the legislation as it passed through Parliament. (30 June 2014)

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

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Local Audit (Auditor Resignation and Removal) Regulations 2014 (SI 2014/1710): these regulations, which come into force on 1 April 2015, provide for the resignation and removal of a local auditor appointed under Part 3 of the Local Audit and Accountability Act 2014. They set out the processes to be followed by the local public body, auditor panel, and auditor, in cases of resignation or removal and make provision for subsequent replacement. (4 July 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

DCLG: 53,000 troubled families' lives turned around: reports on the success of the Troubled Families programme, that takes a holisitic approach to helping 120,000 troubled families in England turn their lives around by 2015. (9 July 2014)

O (A Child) by her Litigation Friend v Doncaster MBC [2014] EWHC 2309 (Admin) (Admin Ct): O, who was aged 17, sought a declaration that she was a looked after child. She also claimed back payment of finance allowances to which she argued she was entitled as a result of that status, and the provision of services. C went to live with her maternal aunt and uncle, AB, after her mother could no longer look after her, and a residence order was made giving AB a residnce allowance under s.17 Children Act 1989. C later fell out with AB and TD came forward as a possible carer. TD had conversations with the Council concerning the payment of a financial allowance for C, but there were problems with the arrangements. Later, TD accepted the Council's offer that C attend a boarding school and spend the holidays with her. TD argued that C was a looked after child since the time she left the home of AB, as she was a child in need of accommodation, and it was social care who stepped in and made the arrangements for C to go to live with TD. The Council contended that  C was not a looked after child as she had gone to live with her paternal aunt TD as a consequence of a private family arrangement, and that it had met its other duties to her.
The court held, refusing the application, that  the Council had been entitled to come to the view that this arrangement for C was one which had been made within the family, and that TD was looking to social care to support it by the payment of a financial allowance. The records all gave the appearance of an arrangement come to by the family, and there was no suggestion that the Council had orchestrated the arrangements. (9 July 2014)

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

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Competition and State Aid

DBIS: State aid – General block exemption regulation: this guidance covers core elements of the new State Aid rules introduced as a result of State Aid modernisation.  It covers regional aid, research, development and innovation and the most commonly used sections of the new General Block Exemption Regulation. It describes what has changed significantly in the new GBER, such as access to finance for SMEs.  (1 July 2014)

R (Sky Blue Sports & Leisure Ltd) v Coventry City Council; Arena Coventry Ltd and The Alan Edwards Higgs Charity (Interested Parties) [2014] EWHC 2089 (Admin) (Admin Ct): SB and two other claimants applied for judicial review of the Council's decision to lend £14.4m to ACL, which was the leaseholder of a football arena. ACL sublet and licensed the arena to a football club owned by the claimants. The Council owned the freehold of the arena, and was the ultimate owner of 50% of ACL. The football club got into serious financial difficulties so the Council, concerned about the management of the club and wishing to protect its commercial interest in ACL, agreed to lend ACL £14.4m to enable it to repay its commercial loan. SB contended that the loan amounted to State aid which was not notified to the European Commission. It also argued that the Council had failed to take into account several material considerations and that the decision was irrational.
The court held, refusing the application, that a rational private economic operator might have made the loan to ACL on the terms in fact made by the Council. The transaction fell within the wide ambit extended to public authorities in this area; and clearly so. It was not State aid. The court also dismissed the claim on the other grounds. (30 June 2014)

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

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Delivery of Services

LGA: Investing in our nation's future – The first 100 days of the next government: the LGA has launched a new campaign on what the new government will need to do in its first 100 days to secure a bright future for the people of this country. The LGA offers, to whoever forms that government, to help them deal with the issues that matter most to the people of this country, changing lives for the better and investing in the future of the nation. It sets out the ‘must do’ tasks that the new government will have to tackle, covering jobs, skills, schools, housing, and health care. It says that the work of any new government must be underpinned by a number of principles if the reforms it sets out are to truly transform public services:

  • More devolution of power to elected councillors to enable them to rewire public services.
  • Community Budgets as the preferred local delivery mechanism for government departments.
  • Financial settlements tied to the lifetime of Parliament for all of the public sector.

(8 July 2014)

Public Services (Ownership and User Involvement) Bill: this Private Member's Bill has been introduced into Parliament by Caroline Lucas MP and received its 1st Reading. The Bill promotes public ownership of public services. It introduces a presumption in favour of service provision by public sector and not-for-profit entities, and puts in place mechanisms to increase the accountability, transparency and public control of public services, including those operated by private companies. (7 July 2014)

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

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Economic Development

DPM's Office: Local Growth Deals: the Government has announced £6bn of local projects as the first wave of Growth Deals. The funds have been allocated to LEPs for projects that benefit the local area and economy. (7 July 2014)

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

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DfE: The evolving education system in England: summarises the findings of research that looked at the performance of 10 local education systems and how different levels of autonomy have affected them. It focuses on: the changing roles of school, local authority and other leaders; the factors influencing these changes; and any challenges encountered along the way. (9 July 2014)

DfE: Implementing a new 0 to 25 special needs system – LAs and partners: Duties and timescales - what you must do and when: updated guidance for local authorities  and health partners about implementing the 0 - 25 special needs system from September 2014. (7 July 2014)

DfE: Handling strike action in schools: updated departmental advice for all types of schools on handling strike action. It includes advice on keeping schools open on strike days and explains the law on trade disputes and picketing. In the event of strike action at a school, the DfE expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible. (1 July 2014)

School Admissions Bill: this Private Member's Bill has been introduced into Parliament by Christopher Chope MP and received its 1st Reading. The Bill provides for pupils with a parent with a terminal or seriously disabling illness to receive priority in the admissions process to maintained schools in England. (7 July 2014)

Staffing of Maintained Schools (Wales) (Amendment) Regulations 2014 (SI 2014/1609 (W.165)): these regulations, which come into force on 16 July 2014,  make various amendments to SI 2006/873 (W.81) relating to the staffing of maintained schools. In particular, they provide for allegations of causing harm to a registered pupil against members of a school staff to be independently investigated.

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

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Environmental Health

DEFRA: Review of the Clean Air Act – Call for Evidence: Summary of responses: in September 2013 DEFRA issued a Call for Evidence to support a policy review of the Clean Air Act 1993 in England as part of the Government’s Red Tape Challenge. The review aims to reduce burdens on business and local authorities whilst considering how the legislation can be modernised to make it more user friendly and relevant to current air quality challenges. This paper summarises the responses to each of the four main sections of the Clean Air Act on which questions were posed: Dark smoke; Smoke, grit, dust and fumes; Smoke control areas; and Variety of measures. DEFRA will now analyse the responses and assess the impacts of suggested changes and improvements. It will conduct a full public consultation on any proposed regulatory changes. In addition, the Deregulation Bill currently before Parliament will amend the Clean Air Act by streamlining and speeding up the process for approving products for use in Smoke Control Areas. DEFRA is also undertaking a pilot project to develop a tool which will enable local authorities to digitise Smoke Control Area maps to assess the feasibility of creating a centralised UK map. (2 July 2014)

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

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DCLG: Counter Fraud Fund: DCLG has launched a new £16m fund to support local authorities during the implementation of the Single Fraud Investigation Service and increase the capacity and capability of local government to tackle losses from non-benefit fraud, such as Council Tax fraud, blue badge fraud or theft of grants. The fund will help individual local authorities establish an investigative capacity over two years. The funding applies to councils in England only. Successful bids must demonstrate an innovative approach to tackling fraud, encompassing detection, prevention and deterrence from genuine additional activities to achieve financial savings through counter fraud activities. All bids will be judged against the potential financial savings and benefits on offer, as well as additional criteria such as partnership working, sustainability, feasibility and innovation. The deadline for bids is 5 September 2014. (2 July 2014)

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

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DCLG: Open and accountable local government – A guide for the press and public on attending and reporting meetings of local government: draft Plain English guide to the draft Openness of Local Government Bodies Regulations 2014, which allow any person attending a public local government meeting to take photographs, film and audio-record the proceedings, and report on the meeting via social media of any kind. Local authorities are required to provide “reasonable facilities” to facilitate reporting. In addition, councils and other local government bodies will be required to publish a ‘decision record’ for any significant decisions taken by officers acting under delegation from the local government body, with a criminal sanction for non-compliance. The regulations have now been approved by Parliament and are likely to come into force on 31 July 2014. (30 June 2014) 
See our Authority Alert: Council meetings – lights, cameras, action!

Local Government (Religious etc. Observances) Bill: this Private Member's Bill has been introduced into Parliament by Jake Berry MP and received its 1st Reading. The Bill provides for the inclusion at local authority meetings of religious observances. It also provides for local authorities' powers genenrally in relation to events that are religious or related to a religious or philosophical belief. (2 July 2014)

Well-being of Future Generations (Wales) Bill: this Bill has been introduced into the National Assembly for Wales and is at Stage 1. The Bill strengthens the existing governance arrangements in named Welsh public sector organisations by securing the sustainable development principle in law, so as to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs. The Bill provides for a set of long-term wellbeing goals for Wales, and places a duty on specified public authorities to set out objectives that are designed to maximise its contribution to the achievement of these goals. There will be a Future Generations Commissioner for Wales to promote the sustainable development principle and monitor and assess the achievement of the wellbeing objectives set by the specified public authorities. The Bill also puts Public Services Boards and local wellbeing plans on a statutory basis and simplifies current requirements regarding integrated community planning. (7 July 2014)

Local Government (Independence) Bill: this Private Member's Bill has been introduced into Parliament by Chris Ruane MP and received its 1st Reading. The Bill defines the independence of local government and regulates the relationship between local and central government in England by means of a statutory Code. All public authorities will be required to act in compliance with the Code. (9 July 2014)

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

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DCLG: Right to Build vanguards – Invitation for expressions of interest: DCLG has announced a new Right to Build which would enable prospective self and custom builders to register their interest with the local council, who will then be required to offer suitable serviced plots for sale at market value. DCLG is now inviting local planning authorities to express an interest to become Right to Build vanguards to test various approaches as to how the Right to Build might be applied in practice. The deadline for submitting expressions of interest is 31 July 2014. (2 July 2014)

DCLG: Local Growth Fund – Housing Revenue Account borrowing: this letter to local authority leaders and chief executives from the Housing Minister Kris Hopkins announces an increase of £60m in additional HRA borrowing across 15 local authorities to help increase the numbers of affordable new homes in England. He also announces that the Government will be holding a second bidding round for new HRA borrowing schemes in 2016/17. (7 July 2014)

DCLG: Transparency in social housing assets value: seeks views on proposals to introduce a requirement for stock-holding councils to publish the most recent and subsequent valuation of their housing assets and to improve local asset management of high value, vacant social housing properties. The consultation also aims to gather information on how local authorities are already utilising their assets to deliver more homes, and information they collect on land held in their housing revenue accounts. This will enable residents to question their council over effective management of the housing they own and whether higher value, vacant properties could be used to fund the building of new homes for local people. The consultation closes on 8 August 2014. (11 July 2014)

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

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Local Government Reform

Welsh Government: Devolution, Democracy and Delivery White Paper – Reforming local government: seeks views on the Welsh Govenrment's ambitions for local government in Wales in the 21st century. It also responds to the local government aspects of the report of the Commission on Public Service Governance and Delivery. The White Paper seeks views on whether the Welsh Government's vision is the right one, and suggestions on how it could be further developed. The consultation closes on 1 October 2014. (8 July 2014)

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

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Mansfield DC v Secretary of State for Communities and Local Government [2014] EWHC 2167 (Admin) (Admin Ct): the Council applied to quash the SoS's decision to to claw back grant payments totalling £158,560 that had been made from the ERDF in respect of two contracts awarded by the Council relating to its town centre improvement plan. The grants were made subject to a number of conditions, including compliance with national and local procurement requirements. The overall value of the two contracts was a little over £900,000 so they fell below the threshold of the Public Contracts Regulations 2006; nonetheless, the contracts were subject to EU procurement requirements. The ERDF was administered by the regional development agency (RDA), which gave guidance on sub-threshold procurements. The Council did not advertise the contracts on its website or in the press; instead, it selected a pool of contractors from the Government's Constructionline website. The SoS contended that the Council had breached EU law in the award of the two contracts by failing to advertise publicly the proposed contracts and so had breached the terms of the grant. He also argued that the amount of the claw back (25% of the total grant) was proportionate.
The court held, dismissing the claim, that, given that there was no open advertising of the proposed contracts in the way contemplated by the local guidance it could not be argued that there was no breach of the Deeds of Grant. Unless that requirement had been waived, the right to claw back monies advanced arose. It was therefore probably immaterial as to whether there had been a breach of EU law also, save that it would not be possible to "waive" a requirement imposed by EU law, but the court would address that question out of caution. The failure to consider whether there was any realistic prospect of cross-border interest (with the need for appropriate advertising if it existed) represented a breach of the EU procurement requirements and an ex post facto justification was not sufficient to remedy that omission. The 25% penalty arose where the contract was "awarded without adequate competitive tendering, involving non compliance with the principle of transparency". DCLG as the Managing Authority had very little room for manoeuvre in matters such as these and the guidance did not suggest any scope for departure from that figure in the situation that arose in this case, so there were no grounds upon which the court could interfere with the amount of the claw back.
The court noted that it was unfortunate that the claw back should have become necessary since the Council had never had any intention to evade its responsibilities under the procurement processes and there was a good and open working relationship between the Council's team and the team from the RDA. However, the EU requirements were demanding and the onus was on the grant recipient to get its own processes right. The ultimate responsibility for complying with the procurement obligations lay on the grant recipient. (2 July 2014)

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

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Public Health

DH:  Commissioning of public health services for children: from 1 October 2015, the responsibility for commissioning children’s public health services, including health visitors, will transfer from NHS England to local authorities. The DH, alongside its partners, has produced six documents to support local authorities and other stakeholders through the transition. The documents identify six areas where health visitors have the most impact on the health and wellbeing of children aged 0-5. There is also an overview of the six high impact areas. Local authorities should use this information to ensure that health visiting services are commissioned effectively. The documents are mainly intended for use by commissioners and providers of early years services, health visitors, early years practitioners and local authorities. (1 July 2014)

DH:  Healthy Lives, Healthy People – A public health workforce strategy: sets out actions for various partners in the new public health system to support and develop the public health workforce. It will help embed public health capacity within the wider workforce to support delivery of the public health outcomes framework. The commitments will be delivered by a range of organisations including PHE, DH, HEE and local authorities. The strategy will be reviewed in 2015. (30 June 2014)

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

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DCLG: Business Rates Information Letter (9/2014) – Autumn Statement compensation: this letter provides information on payment of authorities' costs associated with Autumn Statement measures. The Government has committed to reimburse authorities in respect of the impact of tax changes incurred under the business rates retention scheme. This letter inform authorities that it has now paid initial instalments associated with authorities’ costs in 2014-15 due to the changes announced at the 2012 and 2013 Autumn Statements. (3 July 2014)

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

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Regulatory Services

DBIS: Lighters Direction 2014: the Secretary of State has given a renewed Direction to local authorities under reg.35(2) of the General Product Safety Regulations 2005, on how they should enforce EC Decision 2006/502 (as amended) on child resistant lighters and novelty lighters. It includes the text of the relevant Commission Decisions. (2 July 2014)

Draft Legislative Reform (Entertainment Licensing) Order 2014: this draft Order, which is scheduled to come into force on 6 April 2015, amends the Licensing Act 2003 so that the provision of some types of entertainment will no longer need to be authorised under the Act. In particular, it exempts entertainment  with an audience of fewer than 500 people from the requirement for authorisation under the 2003 Act; it also deregulates entertainment provided by or on behalf of a health care provider, local authority or school proprietor, without any audience limit. (11 July 2014)

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

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