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 to25 July 2014. Items are set out by subject, with a link to where the full document can be found on the internet.

25/07/2014

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:

   Adult Social Services    Members
   Anti-social Behaviour    Police
   Children's Services    Powers and Duties
   Communities    Procurement
   Delivery of Services    Public Health
   Economic Development    Rating
   Education    Regulatory Services
   Finance    Traffic and Transport
   Fire and Rescue Authorities    Wales
   Housing    Waste
   Human Rights    Welfare and Benefits

Adult Social Services

HC Public Accounts Committee: Adult social care in England: this report examines the funding implications of the Government’s ambitious agenda to change and improve adult social care, most notably through the Care Act 2014. It raises concerns that the Government simply does not know whether the care system has the capacity to become more efficient and spend less while continuing to absorb the increasing need for care. The Committee is particularly concerned that local authorities have cut costs, partly by paying lower fees to providers of care, which has led to very low pay for care workers, low skill levels within the workforce, and inevitably poorer levels of service for users. It highlights how the Care Act 2014 introduces new burdens on local authorities and requires unprecedented levels of coordinated working between central and local government and across local authorities and health bodies. While the Government recognises the complexities and risks involved, the Committee is not convinced that the responsible bodies will deliver on these ambitions and is  concerned that they are raising expectations too high. It states that Departments should quantify the new burdens the Care Act will introduce for local authorities, establish a realistic timetable for implementation given the financial constraints, and acknowledge the limits on the sector’s capacity to absorb the growing need for care with falling public funding. (10 July 2014)

DH: Special measures scheme for failing care homes: announces that care home and homecare services in England are to face a new inspection and rating regime that will shine a light on poor care to drive up standards. From April 2015, services rated as inadequate face being put into special measures and given a limited time period to make improvements. If they fail to improve, the CQC Chief Inspector of Adult Social Care will be able to close them down. (16 July 2014)

DH: Stronger code – better care consultation on proposed changes to the Code of Practice: Mental Health Act 1983: seeks views on a draft revised Mental Health CoP that informs health practitioners’ decisions, protects patients’ rights and ensures that the Mental Health Act is followed. The CoP tells families, carers and people who are detained, treated or released under the Act about care and support available during a crisis. It also covers what to do if it isn’t received. The consultation closes on 12 September 2014. (9 July 2014)

LGA: Adult Social Care Efficiency Programme – The final report: the LGA launched its Adult Social Care Efficiency programme in January 2012 to help councils take forward their efficiency and transformation agendas in adult social care. This report contains case studies of all 54 participating councils. It highlights transformational approaches taken by councils to improve outcomes for vulnerable adults while making the efficiency savings required to balance the books. The majority of councils who participated in the programme were required to deliver savings of 8% - 10% over the three-year period in order to balance the books. The evidence suggests that if a council can retain a relatively balanced gross spend on adult social care, it will be required to deliver 3% savings p.a. to meet competing demands from inflationary and demographic pressures alone. Some councils have had to make significantly higher levels of savings. (24 July 2014) 

Social Services Complaints Procedure (Wales) Regulations 2014 (SI 2014/1794 (W.187)): these regulations, which come into force in Wales on 1 August 2014, revoke and replace SI 2005/3366 (W.263). They introduce a new procedure for complaints to local authorities about the exercise of their social services functions, with the exception of certain functions capable of being considered as representations under the Children Act 1989 and under the Adoption and Children Act 2002 which are dealt with in accordance with the Representations Procedure (Wales) Regulations 2014. The major difference between these new procedures and the procedures under the 2005 Regulations is the removal of the independent panel stage and the introduction of a two stage process involving local resolution and if this is not achieved, the requirement for an investigation and response. (9 July 2014)

Abbeyfield Newcastle upon Tyne Society Ltd v Newcastle City Council [2014] EWHC 2437 (Ch) (Ch D): AN was a care home provider. It entered into a Pre-placement Agreement with the Council for residential homecare provision, which was an umbrella agreement under which provision for individual residents was called off. The agreement provided for a Price Review Exercise when the contract expired. When the agreement had expired, the Council sought a two year fixed rate contract and rejected the results of the Price Review Exercise. AN objected that the fixed rate was less than that paid by other councils and lower than the rates paid by its privately funded residents. The Council argued that as AN had continued to provide services to council funded residents at its home  it had accepted the Council's fixed rate by conduct and implication.  AN brought proceedings against the Council claiming unjust enrichment by refusing to pay a reasonable cost for AN's services, and that the Council had refused to pay the reasonable cost pursuant to an implied term under a preliminary contract in which there was no agreement as to price. The Council contended that in it had been exercising a public law function and so AN's claim was an abuse of process as it should have challenged the Council's decision by way of judicial review.
The court held that the issue between the Council and AN was as to the rate payable under existing User Agreements. These were private law issues arising out of an existing contract: and AN was seeking to enforce its rights to payment under the User Agreement. The consideration of these issues did incidentally involve the examination of a public law issue but that incidental consideration did not bar AN from seeking to establish its private rights by action. The fact that 51 providers accepted a rate that was not lawfully set and then failed to judicially review it did not establish that rate as "a usual cost" (which the reasonable rate payable under the User Agreement could not exceed). The failure of others judicially to review an unlawfully set rate could not curtail AN's contractual rights. AN had not signed up to the new agreements and it was entitled to have its contractual rights under the continuing User Agreements determined. (17 July 2014)

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

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Anti-social Behaviour

Home Office: Anti-social Behaviour, Crime and Policing Act 2014 – Reform of anti-social behaviour powers: Statutory guidance for frontline professionals: statutory guidance for police officers, local authority officers and social landlords on the new measures being introduced under the 2014 Act that streamline and simplify 19 existing powers, replacing them with six new ones which will enable the police, local authorities and others to respond quickly and effectively to anti-social behaviour. The Act also gives victims a greater say in the way their reports of anti-social behaviour are dealt with: the Community Trigger and the Community Remedy. (21 July 2014)

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

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Children's Services

DfE: Care of unaccompanied and trafficked children: statutory guidance on the steps local authorities should take to plan for the provision of support for looked after children who are unaccompanied asylum seekers or victims of trafficking. The guidance is issued under s.7 of the Local Authority Social Services Act 1970 and local authorities must comply with it when exercising these functions, unless there are exceptional reasons which justify a departure. (17 July 2014) 

DfE: Early permanence placements and approval of prospective adopters as foster carers: statutory guidance for local authorities and adoption agencies on the new duty under s.22C(9A) of the Children Act 1989 on local authorities to consider placing a looked after child, for whom the local authority is considering adoption, with foster carers who are also approved prospective adopters. It also covers new reg.22A of the Care Planning, Placement and Case Review (England) Regulations 2010 which requires a decision to place a child in accordance with s.22C(9B)(c) to be approved by a nominated officer of the responsible authority, and the widening of reg.14 of the Adoption Agencies Regulations 2005 requiring the adoption agency to explain to the birth parents or guardian the legal implications of their child being placed. The guidance is an update to the Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review and incorporates the May 2013 guidance on temporary approval of prospective adopters as foster carers. (25 July 2014)

DfE: Adoption – National minimum standards: departmental advice for local authorities on the national minimum standards for adoption issued by the Secretary of State under ss.23 and 49 of the Care Standards Act 2000. The standards apply to the variety of different types of adoption agencies and adoption support agencies. They aim to enable individual agencies to create their own particular approach based on evidence that this is the most appropriate way to meet the child’s needs. (25 July 2014)

DfE: Evaluation of Children’s Centres in England (ECCE) – Strand 3: Parenting services in children’s centres: this report forms part of the national evaluation of children’s centres in England (ECCE) research study. The evaluation studies the management, organisation and programmes offered in the centres and a cost-benefit analysis of the programme. This sixth report focuseson the findings regarding the organisation and delivery of children’s centre services for parents. (17 July 2014)

HC Education Committee: Into independence, not out of care – 16 plus care options: this report scrutinises care options for older adolescents, in light of concerns raised by the new legal duty on local authorities to support Staying Put arrangements for young people living in foster care, which does not apply to young people living in children’s homes or ‘other arrangements’. The Committee concludes that the suitability and safety of ‘other arrangements’ must improve. It recommends that the DfE consult on a framework of individual regulatory oversight for all accommodation provision that falls within the category ‘other arrangements’. Despite the DfE’s assertion that “Bed and breakfast accommodation is not considered to be suitable”, it continues to be used. An outright ban on B&Bs is required and the DfE should consult urgently with local authorities on a reasonable timeframe in which to introduce this, alongside a strengthened requirement for local authorities to commission sufficient alternative emergency facilities. The DfE should extend the Staying Put policy to young people living in residential children’s homes, as they are often the most vulnerable and should have the right to remain there beyond the age of 18. The legislation entitling care leavers to continuing accommodation support in ‘other arrangements’ up to the age of 21 is unclear, insufficient and all too often overlooked. It recommends that the DfE issue explicit guidance on young people’s right to stay in ‘other arrangements’ until they are 21. The report also sets out the necessary steps to ensure that there are improvements in the planning and preparation of, and stability and support for, young people as they move to greater independence. (17 July 2014)

DfE: Assessing parental capacity to change when children are on the edge of care – An overview of current research evidence: this literature review brings together some of the key research messages concerning factors which promote or inhibit parental capacity to change in families where there are significant child protection concerns. It is intended to serve as a reference resource for social workers in their work to support families where children’s safety and developmental functioning are at risk. It will also assist social workers and children’s guardians in delivering more focused and robust assessments of parenting capability and parental capacity to change, and assist judges and other legal professionals in evaluating the quality of assessment work in court proceedings. (17 July 2014) 

DfE: Residential parenting assessments – Uses, costs and contributions to effective and timely decision-making in public law cases: this research report explores use patterns and expenditure for residential parenting assessments across different local authorities, and examines residential assessment recommendations and subsequent court decisions. The research was undertaken after concerns were raised by the Family Law review about the value of residential assessments of parenting capacity, particularly set against their cost and lack of clear evidence of their benefits. (17 July 2014) 

DfE: A study to investigate the barriers to learning from Serious Case Reviews and identify ways of overcoming these barriers: this research report  looks at how front-line practitioners and partner agencies use findings from Serious Case Reviews within policy and practice, and what barriers prevent some recommendations from being carried out.(17 July 2014)

DCLG: Understanding troubled families: this report describes the families who entered the Troubled Families programme up to December 2013. It examines some of the problems they had at the point at which local authorities started working with them as part of the programme. It also discusses the implications of these findings and how local authorities are now changing the way they work with families. (22 July 2014)

LGA: Our ambition for children and young people: as part of the LGA's ‘rewiring campaign', the key principle underpinning its proposals for children was that services need to be built and integrated around the needs of children and their families, not around buildings, institutions and wasteful bureaucracy. Since then it has consulted widely with children and young people and with partners in the public and voluntary sectors, and has now set out a clear set of shared ambitions for children that it would seek to deliver in the context of ‘rewired' public services. (9 July 2014)

Care Planning and Care Leavers (Amendment) Regulations 2014 (SI 2014/1917): these regulations, which come into force on 18 August 2014, amend SI 2010/959 to require that a looked after child’s care plan must record whether the child is a victim, or there is reason to believe they may be a victim, of trafficking in human beings or is an unaccompanied asylum seeking child. The assessment of that child’s needs and the local authority review of the child’s case must take into account that status. They also amend SI 2010/2571 to provide that a local authority’s assessment of a former looked after child’s needs must also take into account that status as should any review of the child’s pathway plan. (22 July 2014)

Representations Procedure (Wales) Regulations 2014 (SI 2014/1795 (W.188)): these regulations, which come into force on 1 August 2014, establish a new procedure that Welsh local authorities must follow when considering representations made to them about the discharge of specific functions under the Children Act 1989 and under the Adoption and Children Act 2002. They revoke and replace SI 2005/3365 (W.262). (9 July 2014)

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

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Communities

Welsh Government: Consultation on improving the availability of allotments and community gardens: seeks views on proposals to improve the availability of land for allotments, to protect land for allotments and improve opportunities for community growing. The purpose is to set out Welsh Government’s strategic policy framework to identify and supply land for allotment use and help to boost skills, mental and physical health and to regenerate local communities. It explores how provision may be improved through amendments to existing legislation and non-legislative support to allow for increased access to allotments. The consultation closes on 6 October 2014. (14 July 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 

LGA: Transforming public services, using technology and digital tools and approaches: this report highlights examples of where councils have used technology and digital tools to deliver with improved outcomes for citizens and financial savings. There are nearly 50 such examples in this report, where ‘digital’ or technological innovation has been successfully combined with the intelligent use of customer insight and other complementary approaches such as demand management, lean and systems thinking and collaborative procurement. (15 July 2014)

Cabinet Office: Delivering differently for young people – Programme prospectus: the Cabinet Office, DCLG, SOLACE & LGA have launched a new £500,000 fund designed to provide an opportunity to rethink the way services are delivered, and to support the achievement of positive outcomes for young people. The Delivering Differently for Young People programme will support ten successful local authorities with up to £50,000 of bespoke technical, legal and consultancy support to look at the full range of alternative delivery models that lie between in-house delivery and traditional outsourcing to build long-term service sustainability, and to then develop an implementation plan. Cabinet Office will procure this expert support, but the details of each support package will be developed through collaboration with each successful local authority. The programme is open to applications until 28 November 2014 or until the funds have been allocated, if earlier. (14 July 2014)
See also Delivering Differently for Young People: frequently asked questions.

National Assembly for Wales Communities, Equality and Local Government Committee: Public libraries in Wales: this report examines the Welsh Government‘s work to achieve its Programme for Government commitments relating to libraries. The Committee found that libraries contribute to many areas of community life, including health and wellbeing, education, and tackling poverty and social exclusion. They can also bridge the ‘digital divide’ by providing free internet access, something the Committee believes should continue. Noting an overall growth in visitor numbers to Welsh libraries, the Committee calls on the Welsh Government and local authorities to do more to promote the wide range of services on offer. It makes a number of recommendations regarding potential revenue raising opportunities outside of essential services, and co-location, where a number of local authorities’ facilities and services are contained on one site. (23 July 2014)

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

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Economic Development

DCLG: Local Growth Fund – Housing Revenue Account Borrowing Programme (2015-16 and 2016-17): Frequently asked questions: updated FAQs for local authorities who may be considering submitting a bid to the HRA Borrowing Programme, which makes available an additional £300m borrowing for 10,000 new affordable homes over 2015/16 and 2016/17. It aims to answer the main questions they may have about the programme. (21 July 2014)

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

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Education

DfE: School food in England – Departmental advice for governing bodies: updated departmental advice about the revised school food standards regulations that come into effect on 1 January 2015. It explains how legislation applies to food provided within schools in England and outlines the role of school governing bodies, and stipulates the legal requirements for food provided across the school day. (16 July 2014) 

Ofsted: The pupil premium – An update: This report provides an update on how well schools in England are using the extra funding they receive to raise the attainment of their more disadvantaged pupils. The report finds that while it is too early to point to any significant narrowing of the gap nationally between more affluent and poorer children in key tests and exams at 11 and 16, school leaders are generally spending the pupil premium more effectively than at any time since the funding was introduced in 2011. (16 July 2014)

DfE: Fairer schools funding – Arrangements for 2015 to 2016: describes how funding will be allocated by setting minimum funding levels that every local authority will attract for their pupils and schools. It also sets out arrangements for simplifying the administration of academies funding and minor changes to high needs funding and the way schools contribute to the carbon reduction commitment. The technical note explains how the funding has been calculated.
There is also a Schools revenue funding 2015 to 2016 operational guide that provides detailed information and guidance for local authorities and schools, explaining the changes that have been made to funding arrangements for 2015 to 2016. (17 July 2014)
See also DfE announcements on additional funding for music education and on increased additional funding for students who successfully study 4 or more A levels and large TechBacc programmes. (22 July 2014)

DfE: Home-to-school travel and transport guidance: statutory guidance for local authorities on their duties in relation to home to school travel and transport, and sustainable travel. The guidance has been updated to reflect school system changes since 2010. (18 July 2014)

LGA: The council role in special education: these case studies provide a brief guide to the changes to the legal system for special educational needs and disabilities (SEN) which will be implemented from September 2014. The case studies are based on the work of the SEN pathfinders and other councils. (22 July 2014)

DfE: Transitional and saving provisions (made under section 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): updated note on how the DfE will use powers in s.137 of the 2014 Act to support the transition to the new system of support for children and young people with special educational needs (SEN). (22 July 2014)

London Councils: Do the Maths 2014 – London's school places challenge: analyses the shortfall in school places for London and looks at the impact of recent changes in the allocation formula. The report finds that London has been facing an increase in demand for school places for the last seven years, and this demand continues to grow – London needs an additional 133,000 school places by 2018 to address future demand. The pressures on London boroughs have been compounded by an ongoing lack of sufficient funding from government to provide adequate pupil places. The London boroughs have been working hard to ensure that they have built enough additional places in their area to be able to meet this growing demand, often at their own expense, but this is becoming increasingly difficult to achieve. (17 July 2014)

DfE: Changes to the School Admissions Code: seeks views on proposals to revise the current School Admissons Code. The changes would give admission authorities the option to prioritise disadvantaged children in their admission arrangements. They also make minor changes to improve the clarity of existing provisions. The consultation closes on 29 September 2014. (22 July 2014) 

R (Governing Body of the Warren Comprehensive School) v Secretary of State for Education [2014] EWHC 2252 (Admin) (Admin Ct): the claimants applied for judicial review of the Secretary of State's decision to convert a maintained secondary school to an academy, after the school had been put into special measures. They contended that the SoS, in making his decision, had relied on a material error of fact, namely that the statistical evidence showed that sponsored academies were more likely to deliver attainment and improved progress in schools in need of intervention than maintained schools. They also argued that the SoS had failed to have any regard to the level of disruption that would be caused, and that his decision was premature or irrational as Ofsted inspections had shown that the school was improving. 
The court held, refusing the application, that pupils at schools in special measures did undertake GCSE equivalent qualifications and it was not irrational to include in the statistics figures relating to how schools perform in relation to results for those qualifications. The claimants' contention that there was no evidence that sponsored academies were more likely to deliver attainment and improve progress in schools in need of intervention than maintained schools could not be sustained. The SoS was aware of the improvement in the school's GCSE results, but the results still remained below the overall national average. He was entitled to conclude that the school's persistent under-performance meant that steps should be taken without further delay to bring about a long-term sustainable improvement. He had had regard to the concerns about disruption and he was entitled to take a different view to those who responded to the consultation. (10 July 2014)

School Governance (Constitution and Federations) (England) (Amendment) (No. 2) Regulations 2014 (SI 2014/1959): these regulations, which come into force on 31 August 2014, correct an error in SI 2014/1257 so that the requirement for governors to be appointed on the basis of their skills, and the new procedure for removing surplus governors, are introduced from 1 September 2014 and not 1 September 2015. (25 July 2014)

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

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Finance

DCLG: Local government finance settlement 2015 to 2016 – Technical consultation: seeks views on detailed technical proposals for the local government finance settlement for 201516. The Government states that the proposed 2015/16 settlement continues to deliver protection for funding to local authorities for learning disability, early intervention, homelessness and flooding, included in the settlement from April 2013, as set out in the Summer 2013 consultation. The consultation closes on 25 September 2014. (22 July 2014)

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

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Fire and Rescue Authorities

DCLG: Fire and rescue services: the Secretary of State has given a Written Statement to Parliament in which he outlines the Government's priorities for tackling the challenges and opportunities facing fire and rescue authorities. (15 July 2014)

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

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Housing

DCLG: Local Growth Fund – Housing Revenue Account Borrowing Programme (2015-16 and 2016-17): Frequently asked questions: this FAQs document has been compiled to help local authorities that are interested in bidding for additional borrowing under the Housing Revenue Account borrowing programme. (21 July 2014)

HCA: Affordable Homes Programme 2015-18: announces the initial allocations for £886m of Affordable Homes funding, to support delivery of 43,821 new affordable homes across 2,697 schemes. In a change from the previous programme, all of the available funding will not be allocated from the outset. Instead, the HCA is allocating over half the available funding now, with the remainder being made available via continuous market engagement in due course. (21 July 2014)

Housing (Right to Buy) (Maximum Percentage Discount) (England) Order 2014 (SI 2014/1915): 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 increases the maximum percentage discount for houses under s.129 of the Act from 60 per cent to 70 per cent. (20 July 2014)

DCLG: Thinking of buying your council flat?: updated advice for tenants who are thinking of buying their flat where the freeholder is a council, housing association or other social landlord. It explains possible problems that tenants may encounter and gives advice about where to seek help. The revised guidance takes into account the changes made to the Right to Buy legislation which came into effect in July 2014. (23 July 2014)

DCLG: Your right to buy your home – A guide for tenants of councils, new towns and registered social landlords including housing associations: this booklet summarises the law relating to the Right to Buy scheme, which is available to secure tenants of local authorities and non-charitable housing associations, and to assured tenants of registered providers who moved with their homes from a local authority to a housing association as part of a stock transfer. It takes into account changes made to the legislation which came into effect in July 2014. (24 July 2014) 

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

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Human Rights

Home Office: Female genital mutilation – Multi-agency practice guidelines: updated guidance for frontline professionals, such as teachers, health professionals, police officers and social workers, in safeguarding children and protecting adults from the abuses associated with FGM.
There is also an FGM resource pack for local authorities, professional services and specialist voluntary organisations, with guidance, case studies and support materials.
The Government has also announced a new package of action and funding to protect girls at home and abroad from FGM and child, early and forced marriage. (22 July 2014)

Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Bill: this Bill has been introduced into the National Assembly and is at Stage 1. The Bill places duties on the Welsh Ministers, Welsh local authorities and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Bill further gives the Welsh Ministers power to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. (30 June 2014)

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

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Members

HM Treasury: Councillors' travel (tax exemptions): the Financial Secretary to the Treasury, David Gauke, has made a Wrriten Ministerial Statement to Parliament in which he announces that  the Government intends to introduce legislation to exempt from income tax and national insurance contributions (NICs), travel expenses payments made to local councillors. Further details of the exemption, and the time scale for introduction, will be given in the autumn. (22 July 2014)

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

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Police

HMIC: Policing in austerity – Meeting the challenge: presents the findings from police forces’ response to budget cuts since summer 2011, using force data and inspection to analyse how they are making savings, and how this is affecting their workforce and the service they provide to their communities. The report found that the vast majority of forces in England and Wales have risen to and met the considerable challenge of austerity, with plans in place to save over £2.5bn over the last four years, while protecting the front line as best they can and making sure that the public still receive an effective service. It states that the time is now right for a constructive debate on how policing should be reformed, with careful consideration given to which policing services are best performed locally, regionally or nationally. HMIC will convene this debate and will report publicly on the range of options for a national blueprint for future policing in austerity by June 2015. (22 July 2014)

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

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Powers and Duties

McCabe v Cheshire West and Chester Council and BAM Nuttall Ltd (Unreported, County Court): M claimed damages from the Council and the street light contractor (B) for personal injuries suffered when he fell down a flight of steps on a public footpath late one evening. The street light that was meant to light the steps was not working at the time of the accident. M submitted that s.97(3) of the Highways Act 1980 expressly provided for compensation to be paid to anyone who suffered damage by reason of the execution of works under that section. The Council and B submitted that they owed no duty of care to M because the Council provided street lighting pursuant to a power contained in s.97 of the 1980 Act, and its failure to repair the street light was therefore a failure to exercise a power rather than breach of a duty.
The county court judge held that the Council owed no duty of care to M. It had discretion to provide street lights under a statutory power, not a duty. Liability could be established against the highway authority only if it performed some positive act that created a danger, but the highway authority would not be regarded as having performed a positive act where it undertook work to remove a hazard but failed to do so completely. Had the Council taken a conscious decision to switch the light off or even to remove it, it would not have been liable, it would merely have been exercising its discretion under the statutory power. What was done was a failure to maintain the lamp, not an active step. That was nonfeasance, not misfeasance. (26 June 2014)

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

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Procurement

DEFRA: A Plan for Public Procurement – Enabling a healthy future for our people, farmers and food producers: the Government has announced that from 2017, all of central government will commit to buying fresh, locally sourced, seasonal food, so that all food that can be bought locally will be bought locally. This plan sets out what standards the public sector and suppliers are encouraged to follow when buying food and catering services. DEFRA has also published the balanced scorecard that sets out what criteria the public sector is encouraged to consider when buying food and catering services. To support these small businesses further, the Government will also put in place a new buying process from September, centred around an online portal. Companies which register on this portal and meet the requirements of the plan’s scorecard will automatically be alerted when any eligible contracts come up for tender. (21 July 2014)

Welsh Government: New guidance will ensure more community benefits from construction contracts: the Welsh Government has published updated guidance on the Community Benefits policy, which builds social clauses into construction contracts to ensure Welsh businesses, individuals and communities benefit from public sector contracts. The new guidance reflects emerging practice, current policy objectives and provides more detailed advice to support implementation. (23 July 2014)

Draper v Lincolnshire CC [2014] EWHC 2388 (Admin) (Admin Ct): D applied for judicial review of the Council's decision to reduce the provision of statutory library services. The Council decided that it had to reduce the cost of its library service by £2m, and it proposed to do this by reducing the number of its static libraries from 44 to 15. It issued a consultation on its proposals to implement a new model of statutory library provision in the county and to offer certain communities a range of community library provision. The consultation stated that the decision to reduce the statutory service to 15 libraries was not alterable, but only the criteria for designating libraries could be. It also indicated that it was open to suggestions including alternative ways of achieving the savings. G, a charitable organisation that ran libraries in London, submitted an Expression of Interest in which it proposed to take over the provision of the whole of the county's library services, and it stated that it could do so while retaining what existed and achieving a saving of £1.8m. The Council rejected G's proposals on the basis that it provided limited detail on how this would work in practice and that pursuit of this option would require a Europe-wide procurement process to be undertaken which would take at least six months to implement with no guarantee that the savings sought would be achieved and a comprehensive and efficient library service delivered. D contended that the proposals which the Council adopted did not meet the statutory requirements set out in s.7 of the Public Libraries and Museums Act 1964, that the consultation was flawed and there were failures to comply with the Public Sector Equality Duty and to consider in a lawful manner G's proposal to take over the provision of library services and avoid the cuts.
The court held, granting D's application, that the consultation exercise was flawed, as a central element in relation to the statutory service, namely to reduce it to 15 libraries, could not be changed. The Council could not defend the consultation exercise on the basis that the reduction of the statutory service was not fixed at only 15 static libraries to be provided but general proposals could be entertained and at the same time reject the expression of interest from G on the grounds that it did not fall within the scope of the consultation. G's proposals were plainly an Expression of Interest within s.81 of the Localism Act 2011, which the Council had a duty to consider; if accepted, then the Public Contracts Regulations 2006 applied. G's proposals constituted Part B services which had a less demanding procurement exercise than Part A services. It was ironic that the Council had rejected G's plans as it considered that procurement would lead to unacceptable delay, while this claim had produced a delay of over six months and in any event the new arrangements were not likely to be in place until 2015. The Council had complied with its Public Sector Equality Duty. The manner in which G's proposals were dealt with coupled with the view that they did not fall within the consultation exercise meant that the decision must be quashed and the Council had to reconsider it. (17 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: Smoking in private vehicles carrying children – Consultation on proposed regulations to be made under the Children and Families Act 2014: seek views on draft regulations that would prohibit smoking in private vehicles carrying children. The changes would extend existing smoke-free laws to make it an offence to smoke in a private vehicle with someone under 18 present or to fail to prevent smoking in a private vehicle with someone under 18 present. The proposed regulations would not apply to a driver on their own in a car. The consultation closes on 27 August 2014. (15 July 2014)

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

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Rating

DCLG: Business rates retention – Pooling prospectus 2015 to 2016: under the business rates retention scheme, local authorities are able to come together, on a voluntary basis, to pool their business rates, giving them scope to generate additional growth through collaborative effort and to smooth the impact of volatility in rates income across a wider economic area. This prospectus sets out the opportunities that pooling presents for local authorities under the business rates retention scheme and the process for formally designating pools. It invites local authorities to submit their pooling proposals by 31 October 2014.
DCLG has also published details of existing business rates pooling governance agreements put in place by local authorities for 2013 to 2014 and 2014 to 2015. (22 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

Home Office: Draft RIPA codes of practice – Covert human intelligence sources; covert surveillance and property interference: draft updated guidance on the authorisation of covert surveillance and covert human intelligence sources by public authorities under Part II of the Regulation of Investigatory Powers Act 2000. Amendments include changes to local authority authorisation arrangements arising from the Protection of Freedoms Act 2012 and additional scrutiny applied to the authorisation of undercover law enforcement officers. (22 July 2014)

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

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Traffic and Transport

HC Transport Committee: Cycling safety: this report examines how roads can be made safer for cyclists. It says that a cycling budget of £10 per head by 2020 is essential to fund long-term development of cycling infrastructure and to make roads safer for cycling. It concludes that central government, regional and local authorities should use all the tools at their disposal to promote the safer sharing of the road between drivers and cyclists. It calls for DfT to support local authorities to make it easier and cheaper for them to introduce 20 mph speed limits in high-risk areas. (18 July 2014)

DfT: Simplifying the process for revising tolls at local tolled crossings – Government response: sets out the Government's response to the February 2014 consultation that proposed to simplify the process for revising tolls for 11 privately owned and local authority statutory tolled undertakings prescribed by s.6 of the Transport Charges &c(Miscellaneous Provisions) Act 1954. The Government considers that the current procedure in the 1954 Act is rigid and bureaucratic and places disproportionately high administrative and cost burdens on toll operators. In light of the responses received, it proposes to amend the 1954 Act, to allow toll operators to increase prices by up to 1% below RPI annually witout application to the Secretary of State, and to make the process for increasing tolls more proportionate to the increase being requested. However, it is uncertain whether there will be any Parliamentary time available to take the necessary legislation forward. (23 July 2014)

DfT: Community rail plan for East Suffolk and the Tyne Valley: the Government is consulting on plans to designate routes in East Suffolk and the Tyne Valley as community rail services. This would allow the community to design train services according to local needs, which in turn would help increase passenger numbers, improve connectivity to key destinations and ultimately boost the local economy. Community rail services are operated by train companies supported by a Community Rail Partnership, made up of local councils, community groups and other volunteers, that decide how they should be run. The closing date for both consultations is 5 September 2014. (25 July 2014)

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

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Wales

Welsh Government: Measures to improve public health & planning among First Minister’s legislative priorities: the First Minister has given a statement on the Legislative Programme to the Welsh Assembly, in which he sets out the legislative priorities for the next Assembly year. Among the 10 new bills proposed by the Welsh Government are laws which will simplify the planning process, lay the ground for local authority mergers, ensure Wales has world-class qualifications, improve public health and implement new taxes, as recommended by the Silk Commission. (15 July 2014)

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

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Waste

HC Communities and Local Government Committee: Litter: the CLG Select Committee is launching an inquiry into litter in light of concerns that levels of littering and fly-tipping are failing to reduce substantially, despite campaigns and publicity aimed at changing public behaviour, and despite a suite of powers and duties for local councils and other bodies. The costs of managing litter and fly-tipping are significant – Keep Britain Tidy puts a £1bn plus annual price tag on managing litter and its knock-on impacts nationally. The Committee invites submissions on how significant a problem littering and fly-tipping is, and whether current government policies are adequate and give local authorities enough autonomy to tackle the problem in local communities. The closing date for submissions is 16 October 2014. (22 July 2014)

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

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Welfare and Benefits

DWP: Removal of the Spare Room Subsidy – Interim evaluation report: presents early findings from the evaluation of the Removal of the Spare Room Subsidy (RSRS). The RSRS reduces Housing Benefit for social tenants of working age with more bedrooms than they are deemed to need. The report includes evaluation of the preparation and implementation of the policy changes by local authorities and social landlords, and the effects of the RSRS on landlords, local authorities and voluntary and statutory organisations and advice services. It finds that four out of five claimants affected by the RSRS were reported by landlords to be paying some or all of their shortfall, although half of these had failed to pay in full. There was widespread concern about the impact of potential future evictions on local services, and on landlord finances as well as on the lives of vulnerable people. Few tenants had found work or taken in lodgers. However, demand for downsizing has been greater than anticipated, although, in many areas, this demand has thus far been difficult to meet. At the time of this research, there had been very few evictions solely due to the RSRS. (15 July 2014)

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

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