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 previous two weeks. 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:

   Adult Social Services    Governance
   Audit    Health and Social Care
   Children's Services    Highways
   Civil Contingencies    Housing
   Community Rights    Infrastructure
   Delivery of Services    Procurement
   Economic Development    Public Health
   Education    Rating
   Finance    Registration Services
   Fire and Rescue Authorities    Regulatory Services
   Fraud    Tortious Liability


Adult Social Services

NAO: Care services for people with learning disabilities and challenging behaviour: this report finds that the Government did not meet its central goal of moving people with learning disabilities and challenging behaviour out of hospital by 1 June 2014, because it underestimated the complexity and level of challenge in meeting the commitments in its action plan. When the Winterbourne View Concordat was published in December 2012, the Government had not determined the scale of the challenge involved in increasing the capacity of community placements and it did not have information on the ability of local commissioners to put in place the bespoke community placements and personalised care plans required to manage patients’ risks effectively, and prevent patient readmission. The NAO estimates that local authorities with adult social services responsibilities spent £5.3bn in 2013-14 on community services for adults with learning disabilities. The Government left it to NHS England and local health and social care commissioners to determine how to meet the Concordat commitments so it could not compel those responsible for delivery to implement the necessary changes, such as through pooling budgets or ring-fencing funding. There was no financial incentive for local commissioners to bring such patients home – they had to bear the additional costs of expanding local community services to meet the patients’ needs, following discharge from hospital, when NHS England had centrally funded patients’ care in mental health hospitals. (4 February 2015)

LGA: Towards excellence in adult social care: progress with adult social care priorities England 2013-14: this report helps to inform and support improvement in adult social care. It also provides an overview of the progress of councils in England towards ensuring better care and support. Maintaining and improving the level of performance or perception (i.e. in terms of quality of life) of social care has taken place in the context of the 26% savings that have been required over the last four years. The report attributes some of this as a result of the transformation of adult social care in terms of the increased personalisation of services. (16 February 2015)

LGA: Adult safeguarding and domestic abuse – A guide to support practitioners and managers: second edition of the guide that helps staff to give better informed and more effective support to people who need an adult safeguarding service because of domestic abuse. It addresses situations where an adult who has care and support needs is being harmed or abused by an intimate partner or close family member in a way which could also be defined as domestic abuse. It does not seek to replace existing safeguarding procedures and it is anticipated that it be read and used in the context of local procedures and protocols. (12 February 2015)

DH: Adults’ personal social services: grant allocations 2015 to 2016 – Circular LASSL(DH)(2014)2: this letter clarifies local authority specific revenue, capital funding and allocations for the financial year 2015 to 2016. It also provides further information on the Better Care Fund and allocations for DCLG Care Act funding. (18 February 2015)

DH: Social care – Charging for care and support (Circular LAC(DH)(2015)1): this circular advises local authorities of changes to the social care charging arrangements and provides an overview of the changes and some additional statutory guidance. (20 February 2015)

R (Kent CC) v Secretary of State for Health; Sutton LBC and Barking & Dagenham LBC (Interested Parties) [2015] EWCA Civ 81 (CA): this case considered the proper construction of s.24(5) of the National Assistance Act 1948, which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere.
NA had lived in Sutton and in Barking & Dagenham, with his accommodation funded variously under s.21 of the 1948 Act and also by NHS Continuing Healthcare funding. He then moved to Kent, where he was in NHS-funded residential accommodation. This funding was withdrawn because NA no longer met the criteria, so under s.24(1) of the 1948 Act, liability to fund his accommodation fell upon the local authority in whose area he was "ordinarily resident". Sutton and Barking & Dagenham each claimed the other was liable. The Secretary of State determined that Kent CC was responsible because at the date on which the NHS funding ceased, NA was ordinarily resident in Kent. Kent applied for judicial review of the SoS's decision, arguing that the deeming provision in s.24(5) operated to fix responsibility for funding onto the local authority within whose area NA was ordinarily resident immediately before he moved to Kent.
The Court of Appeal held, dismissing Kent's application, that the literal meaning of s.24(5) was clear. The "residential accommodation" in that subsection was that provided under the 1948 Act. The use of the definite article in the phrase "before the residential accommodation was provided for him" was an explicit reference back to the accommodation provided under the 1948 Act already mentioned in the subsection. Section 24(6) of the 1948 Act explicitly provided for the consequences for ordinary residence when, immediately before accommodation was provided under the 1948 Act, the person concerned had been accommodated at the expense of the NHS but that did not assist NA as he had not been in hospital. This was amended by the Health and Social Care Act 2008, which widened significantly the circumstances in which a person whose accommodation was funded by the NHS would be deemed to be ordinarily resident in the local authority area in which he lived before the NHS provided the accommodation. In that way Parliament had considered (and reconsidered) the circumstances in which the fact of NHS provision of accommodation should affect the funding obligations which attach to local authorities. Those changes came into force after NA was provided with accommodation under s.21 of the 1948 Act; had they come in before, they would have relieved Kent of its funding obligations and left Sutton and Barking as potential funders. (11 February 2015)

R (T) v Trafford MBC [2015] EWHC 369 (Admin) (Admin Ct): T applied for judicial review of the Council's proposal to cut its adult social care budget for 2015/2016, which was set out in a consultation that ran from 21 October 2014 to 12 December 2014. T had autism and learning disabilities; he lived in a supported living placement and was dependent on 24 hour supported care. He claimed that the Council had breached its common law duty to include information about realistic alternative options in its consultation on proposed cuts to adult social care. 
The court held, dismissing the claim, that there was no statutory requirement on the Council to consult, but whether or not consultation was a legal requirement, if it was embarked upon it had to be carried out properly. It could not be the case that if an authority did not consult on rejected options, and only presented a preferred option for consultation, then that must be misleading. It was one thing positively to mislead; it was quite another for the Council, in all the circumstances of the case, to have and to put forward, after careful and detailed consideration, a point of view that circumstances dictated that it was not realistic to increase council tax or to use reserves and therefore to focus the consultation on savings in services (R (Moseley) v Haringey LBC [2014] UKSC 56 distinguished).  There was information in the public domain which enabled people to understand that the Council did not consider that the increase in council tax and/or using reserves was a realistic option. If there had been a specific duty to consult on rejected options, then the Council had not complied with that duty; however, there was no such duty, so T's claim must fail.
Obiter: if there had been a lack of lawful consultation, the judge would not have refused relief on the basis that it was detrimental to good administration for the court to grant a remedy – the lawful democratic process was important in itself, such consultation might have made some difference and the starting point should be that relief was granted if consultation had unlawfully not taken place. (18 February 2015)

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

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Accounts and Audit Regulations 2015 (SI 2015/234): these regulations, which come into force on 1 April 2015, revoke and replace SI 2011/817. They contain provisions on internal control and annual accounts and audit procedures applying to relevant authorities (apart from health bodies) as defined in Sch.2 to the Local Audit and Accountability Act 2014. The regulations contain detailed rules about the preparation, approval and publication of the annual statement of accounts, and about the arrangements for local electors and other interested persons to exercise their rights of inspection, objection and to question the local auditor. (17 February 2015)

Local Audit (Appointing Person) Regulations 2015 (SI 2015/192): these regulations, which come into force on 10 February 2015, provide for the appointment of a local auditor by a person specified by the Secretary of State to audit the accounts of principal authorities with an annual turnover over of more than £6.5m, who opt in to that arrangement. 
The Local Audit (Smaller Authorities) Regulations 2015 (SI 2015/184) make similar provision for smaller authorities (i.e. with a turnover of <£6.5m p.a.) and authorities that are exempt from local audit (i.e. with a turnover of less than £25,000 p.a.). (9 February 2015)

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

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Children's Services

Home Office: Crime Prevention Minister announces mandatory reporting of FGM: announces that the Government has tabled amendments to the Serious Crime Bill, that will introduce a duty on all regulated healthcare and social care professionals, and teachers to report cases of children who have suffered Female Genital Mutilation (FGM). There will also be multi-agency statutory guidance for front line professionals. (12 February 2015)

Ofsted: Social care online questionnaire – Guidance for providers: Ofsted is seeking the views of children and young people, parents, staff, social workers and other professionals about children’s homes, adoption agencies, fostering services and residential family centres, via an online social questionnaire. Providers distribute links to the questionnaires on Ofsted’s behalf. This guidance explains who should be completing these questionnaires and who the providers should send the particular questionnaire links to. It lists the different type of questionnaires available for each establishment or agency and provides a brief explanation of who should be asked to complete the questionnaire. The questionnaire is available online until 4 May 2015. (9 February 2015)

Early Intervention Foundation: Spending on late intervention – how we can do better for less: this report estimates how much public services spend on late intervention for children and young people, i.e. a range of acute or statutory services that are required when children and young people experience significant difficulties in life, as well other support they may draw upon such as welfare benefits. This report provides initial estimates of the annual cost to the taxpayer of such late intervention. It highlights how picking up the pieces from damaging social problems affecting young people such as mental health problems, going into care, youth crime and unemployment costs the Government almost £17bn a year. The analysis finds that almost a third of this bill came from the annual £5bn cost of looking after children in care. An estimated further £4bn p.a. spent on benefits for 18-24 year olds not in education, employment or training (NEET) with another £900m spent helping young people suffering from mental health issues or battling drug and alcohol problems. (12 February 2015)

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

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Civil Contingencies

Cabinet Office: Proposal to amend the Privacy and Electronic Communications (EC Directive) Regulations 2003 to enable the future implementation of a national public emergency alert system – Outcome report: summarises feedback to the December 2014 consultation on proposed amendments to the Privacy and Electronic Communications Regulations 2003 in preparation for implementing a national mobile alert system. It also sets out the Government's response and next steps. (19 February 2015)

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

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DCLG: £6 million new funding to give communities even greater local control: announces additional funding for the Community Rights programme, along with the award of six new contracts to support communities in using the Community Rights in 2015 to 2016. (17 February 2015)

DCLG: Government response to a petition on protecting allotment sites: summarises action taken by the Government to protect allotments and support communities wishing to grow produce. (18 February 2015)

DCLG: Notes on neighbourhood planning – The story 50 far: this issue of celebrates the milestone of 50 successful neighbourhood planning referendums in England. It gives details of the latest referendums and gives statistics on neighbourhood plans, including a map. (17 February 2015)

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: Local digital today 2014: this report gives details of local authority progress since 2013 in using digital services and technologies to both improve local public services and create savings. The research looked into authorities’ attitudes towards using digital to improve local public services and create savings. It highlights how £500m could be saved every year if all councils embraced these savings on offer through better services. The research suggests more than £5bn could be saved over the course of the next decade. (12 February 2015)

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

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Economic Development

DEFRA: Food Enterprise Zones created to drive growth: announces 11 new Food Enterprise Zones (FEZs) that will free up food and farming businesses, making it simpler and easier for them to grow, and will attract new businesses. Local communities will benefit from new jobs and the opportunity to develop local produce, boosting their economies. Grants of up to £50,000 will be available to set up FEZs. Based around Local Development Orders, and in line with local priorities, they will make the planning process simpler and easier for food and farming businesses that want to expand. (12 February 2015)
DEFRA has also announced the second round of FEZs. The deadline for applications is 16 March 2015. (19 February 2015)

DCLG: European Structural and Investment Funds 2014 to 2020 governance: this letter to LEPs and other local partners provides an update on the governance of the 2014 to 2020 European Structural and Investment Funds Growth Programme and progress on negotiations with the European Commission. (19 February 2015)

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

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DfE: £6 billion investment to rebuild and improve schools across England: announces the 277 schools that will share £2bn funding to refurbish or rebuild their premises, under the second phase of the Priority Schools Building Programme. It also announces that £4bn will be allocated between 2015 and 2018 to schools, local authorities, academy trusts, and voluntary-aided partnerships to help them improve the condition of schools across the country:

(9 February 2015)

DfE: Basic need allocations 2015 to 2018: gives details of the amount allocated to local education authorities for 2017/18 and also extra top-up funding for 2015 to 2017. (12 February 2015)

R (L & P) v Warwickshire CC; Warwickshire Safeguarding Children Board (Interested Party) [2015] EWHC 203 (Admin) (Admin Ct): the claimants, who were disabled children, applied for judicial review of the Council's decision to cut funding for social care services for disabled children. They contended that the Council had unlawfully failed to consult properly on the cuts and on the Local Offer under s.30 of the Children and Families Act 2014. In particular, the proposed Local Offer put forward an approach to assessment of disabled children, which would result in an impermissible departure from the statutory guidance. They claimed that the purported Local Offer was so flawed as to render the consultation irrational, unfair and unlawful. In addition, the Council was in breach of its duty under Sch.2 para.2 to the Children Act 1989 to maintain a register of disabled children so it was in breach of its duty under s.27 of the Children and Families Act 2014 to review the sufficiency of education and care provision available to children in its area.
The court held, allowing the application in part, that the first claim was seriously out of time, and so permission would be refused. This was an example of a budget being regularly and constitutionally set by a local authority in the present time of austerity. All democratic procedures and safeguards were followed. To make that decision without prior consultation was not so conspicuously unfair as to amount to an abuse of power. Given that the proposed Local Offer had not yet been promulgated and was still subject to review, it was unreal to say that the claimants had not had the fullest opportunity to express their concerns about the statement of social care eligibility in the Local Offer. The statutory guidance should not be read as insisting that every disabled child should initially be the subject of a full-blown social worker assessment. The approach taken in the threshold document was eminently reasonable in terms of initial deployment of resources. The judge found that the proposed Local Offer was deficient as it fell a considerable distance short of the statutory requirements, so permission would be granted on this ground. Unless the Council had a register of disabled children and knew more or less precisely how many disabled children there were in the county it could not make a fully informed decision about budgetary allocation or as to the terms of a proposed Local Offer. The Council's failure to create and maintain a register of disabled children was a breach of the law and it was obliged promptly to remedy that breach. (5 February 2015)

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

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Independent Commission on Local Government Finance: Financing English devolution: argues that the future of local services is dependent on local authorities becoming largely self-sufficient and less reliant on central government.The Commission has set out plans for a 10 year programme of devolution that would see more than £200bn in annual public expenditure being controlled by groupings of local authorities. Under the plans, Whitehall and Westminster would have a much reduced role in local services like housing, planning, social care and transport and local government funding. The Commission urges that pioneer areas – such as well-established combined authorities – take on new freedoms now, with reforms rolled out to other areas over the next 10 years as they become ready. Key reforms include greater freedom over jobs, housing and care, a single budget for public services in an area and a devolved model of taxation based on new arrangements for Scotland. This would include reform of council tax and business rates along with devolution of some existing national taxes like income tax and VAT.
  (18 February 2015)

LGA: The LGA's Budget 2015 submission: calls on the Chancellor to use next month's Budget to protect public services in England with adequate funding to ensure councils can provide services locally. In particular, the Chancellor is being urged to protect social care funding to enable councils to support the NHS and prepare for reforms starting as soon as this April. It also argues that central government should remove the barriers to innovation in places and encourage local service delivery bodies to cooperate with councils at a local level to truly reconfigure services to fit local circumstances. (16 February 2015)

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

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Fire and Rescue Authorities

LGA: The Fire and Rescue Service – Making our nation safer: the LGA's "First 100 days" paper sets out the challenges any new government will face in May 2015 and provided a local government offer that will help them deal with the most pressing issues. This document gives an LGA and Chief Fire Officers Association perspective on what the Fire and Rescue Service offers to a new government.  Although many of the proposals in the 100 days publication would be beneficial to FRAs as part of the wider local government family, this document presents specific asks and offers directly relevant to the fire and rescue sector. The main focus of the new policy ideas is to broaden and deepen prevention work, but there are also proposals to cement the FRS as a key partner within other blue light services and to guarantee it receives the recognition it deserves. (9 February 2015) 

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

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DWP: The Fraud and Error Reduction Incentive Scheme good practice guide: the Fraud and Error Reduction Incentive Scheme (FERIS) offer sfinancial reward to local authorities who further tackle fraud and error in their Housing Benefit caseload. The scheme aims to significantly reduce Housing Benefit fraud and error during 2014/15 and 2015/16 and beyond. DWP has also issued a monitoring template that local authorities can use to verify their FERIS baseline and monitor progress in meeting their FERIS thresholds. (10 February 2015) 

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

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Draft Local Government (Standing Orders) Regulations (Northern Ireland) 2015: this draft Statutory Rule prescribes provisions that a Northern Ireland council must incorporate in the standing orders it is required to make, by s.37 of the Local Government Act (Northern Ireland) 2014, for the regulation of the proceedings and business of the council (i.e. by specifying mandatory standing orders). (17 February 2015)

Commons Library: Local government in England – Structures: Standard note SN07104: this note contains a useful summary of the structure of local government. It covers: types of authority; the electoral system, ward structures and the franchise; the divisions of functions between local authorities; and the process for changing local government boundaries and structures. (17 February 2015)

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

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Health and Social Care

Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS: Sir Robert Francis recommends a package of measures to ensure in future NHS staff are free to speak up about patient safety concerns. His report sets out 20 Principles and Actions which aim to create the right conditions for NHS staff to speak up, share what works right across the NHS and get all organisations up to the standard of the best and provide redress when things go wrong in future. (11 February 2015)
Whilst the recommendations set out in the report are aimed at the specific challenges which face the NHS, its themes are also relevant to local government – see our alert Speaking up and speaking out: "Freedom to Speak Up" Review – key themes & practical steps for local government.

London Councils: Accessing care in 2016 and beyond – A step-by-step guide for over 65s: this flowchart sets out how the Care Act reforms are likely to impact on those over 65 and whether they will qualify for support from their council or not. London Councils’ main concern is the cost for local authorities of implementing the Care Act 2014. It considers that some of the key changes defined in the Act will require high levels of resourcing to be appropriately delivered and London Councils has been lobbying Government to ensure that the reforms are appropriately funded. It states that with some of the measures coming in 2015 and the rest in 2016, it is critical that local authorities are ready and prepared to deliver their statutory responsibilities as set out in the Act. (9 February 2015)

London Councils: Call for long term funding to address hospital beds crisis: the Government has announced that councils, nationally, would receive £37m to help with the rise in demand for home care packages over winter. However, London Councils is calling for sustainable funding of adult social care, rather than a one-off payment. Boroughs are facing a funding shortfall of £1.14bn for adult social care by 2019/20. It highlights innovative schemes, in which social workers and NHS professionals work alongside each other, that are effective at ensuring vulnerable people leave hospital and are safely settled back at home as soon as possible. (11 February 2015)

NICE: Older people in care homes: this local government briefing summarises NICE's key recommendations for local authorities and partner organisations on the health and care of older people in care homes. It also highlights relevant quality standards. It aims to help local authorities and their partner organisations to deliver good standards of care for older people in care homes. (18 February 2015)

Care Act Regulations 2015: four more sets of Care Act Regulations have been published:

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

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DfT: Request for views on proposals that by 1 October 2015 all permit schemes must comply with amendments to the 2007 permit scheme regulations: the Government is bringing in changes to the Traffic Management Permit Scheme (England) Regulations 2007 in order to improve consistency across local councils’ permit schemes in England. The changes will apply to all new schemes from 2015. It now seeks views on whether all street works permit schemes should comply with amendments to the permit scheme regulations by 1 October 2015. The consultation closes on 9 March 2015. (9 February 2015)

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

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HCA: Care and Support Specialised Housing Fund Phase 2: the HCA is inviting specialist housing developers and providers to bid for a share of an additional £155m from the Care and Support Specialised Housing Fund Phase 2 to develop accommodation for adults who need support in order to live independently. Full details are in the prospectus and further information for bidders. The deadline for applications is 29 May 2015. (18 February 2015)

Renting Homes (Wales) Bill: this Bill has been introduced into the National Assembly and is at Stage 1. It reforms the legal basis for renting a home from a private landlord or community landlord, including local authorities and registered landlords. It improves and simplify the arrangements for renting homes by replacing many different and complex pieces of legislation with one main piece of legislation. It will also replace the huge number of different types of tenancies and licences with just two types of contract – one for the private rented sector and one for the social rented sector. The Homes for Wales Bulletin summarises the Bill's provisions. (9 February 2015)

Policy Exchange: Garden villages – Empowering localism to solve the housing crisis: this policy paper by Lord Matthew Taylor calls for a radical new approach based on amending the New Towns Act to create financially viable new garden villages. It argues that a future government can overcome local opposition to development by devolving powers to set up new garden villages from Whitehall to councils. Under the proposal, locally led development corporations, set by councils, would be charged with master-planning, setting quality design standards for the construction, and allocating some of the plots to self builders and housing associations, for a new wave of garden villages. As part of a quid-pro-quo, councils agreeing to build new garden villages sufficient to meet their housing need would be allowed to rule out having development around existing communities forced on them through appeal. (13 February 2015)

HM Treasury & DCLG: Plans to help deliver over 400,000 homes for London set out by Chancellor: George Osborne has set out plans to help London meet its need for over 400,000 homes. The package of housing investments include the establishment of a London Land Commission, based at the GLA, which will identify public sector brownfield land that is no longer needed in London, to help ensure that all of the capital’s brownfield sites are developed by 2025, and help meet its target of over 400,000 new homes by 2025. The Land Commission’s work will pave the way for new homes in the capital on brownfield and public sector land. The Chancellor and the Mayor also confirmed the creation of nine new Housing Zones on brownfield land. (20 February 2015)

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

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Infrastructure Act 2015: this Act has received Royal Assent and mainly comes into force on a day or days to be appointed. Its provisions cover a wide range of areas affecting local authorities – it:

  • establishes a new Strategic Highways Company that would assume the Highways Agency’s current responsibilities for maintaining, improving and managing the Strategic Road Network from 2015;
  • gives the Secretary of State power to set a Cycling and Walking Investment Strategy for England;
  • includes changes to some of the procedures for making and modifying development consent orders for nationally significant infrastructure projects; these changes would also allow for some types of planning conditions to be regarded as ‘discharged’ in certain situations;
  • provides for Mayoral Development Orders in London;
  • enables the direct transfer of surplus public sector land held by an arm’s length body of a Government department to the Homes and Communities Agency or Greater London Authority;
  • transfers responsibility for Local Land Charge searches from local authorities to the Land Registry from 12 April 2015. Responsibility for collating LLC data and for undertaking CON29 searches remains with local authorities. The Act also widens the existing powers of the Land Registry to enable it to provide information and register services relating to land and other property;
  • enables the Government to introduce a community right to buy for land-based renewable projects;
  • streamlines the access process when drilling beneath other property to exploit onshore oil and gas reserves (e.g. when fracking for shale gas) and geothermal energy. It sets out a notification process so that landowners would be told when such drilling would occur and provides powers that could be used if a voluntary compensation scheme failed to work. It implements the international Extractive Industries Transparency Initiative, which aims to ensure fair payment for natural resources.

For details of the provisions, see the Commons Library's briefing paper on the Infrastructure Bill. (12 February 2015) 

DCLG: Section 106 planning obligations – Speeding up negotiations: Student accommodation and affordable housing contributions consultation: seeks views on what mechanisms may be used to speed up the process of agreeing planning obligations. It also asks whether the requirement to provide affordable housing contributions acts as a barrier to development providing dedicated student accommodation. The consultation closes on 19 March 2015. (20 February 2015)

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

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Cabinet Office: Social Value Act review: this review examines how the Public Services (Social Value) Act 2012 has been performing in its first two years. It finds that the Act is having a positive effect where it is taken up, and that it has clear potential to act as a tool for smarter procurement given the right application. The review also makes recommendations around how to further develop the social value agenda and to move the Act into its next phase of implementation. The report includes case studies, practical guidance on how to apply the Act, and a framework and principles for measurement.
The Minister for the Cabinet Office Rob Wilson has written to Lord Young asking him to prevent the Act’s thresholds from increasing to €750,000 for many services when the new Public Contracts Regulations 2015 come into force. (13 February 2015)

Cabinet Office: Procurement Policy Note 03/15: Reforms to make public procurement more accessible to SMEs: guidance on reforms which are implemented in Part 4 of the new Public Contracts Regulations 2015. They include:

  • removing a pre-qualification stage for procurements below the EU thresholds; 
  • a requirement for contracting authorities to include provisions to ensure prompt payment through the supply chain; and
  • a requirement to advertise public sector opportunities in one place (Contracts Finder)

The Regulations will, primarily, come into force on 26 February 2015. (18 February 2015)

R (Gottlieb) v Winchester City Council; Silverhill Winchester No 1 Ltd (Interested Party) [2015] EWHC 231 (Admin) (Admin Ct): G applied for judicial review of the Council's decision to authorise variations to a contract with a developer to build a new mixed retail, residential and transport centre in the city centre. G contended that the decision was unlawful because, having varied the terms of the Development Agreement, the Council was required to carry out a procurement exercise. 
The court held, granting the application, that that the variations to the contract, taken as a whole, resulted in a contract which was materially different in character, such as to demonstrate the intention of the parties to re-negotiate the essential terms of the contract. There were extensive negotiations between the parties, varying many of the terms. The fundamental change which the parties intended to achieve was to increase the potential profit to the developer so as to make the scheme viable. Although the subject-matter of the contract remained the same, the terms had become a significantly more attractive commercial proposition for a potential bidder. In a concession contract, economic benefit was not to be assessed just on the basis of the financial terms between the Council and the developer, but also on potential profits from third party contracts. If there had been a procurement process in 2004, the more favourable terms would have enabled other realistic bidders to bid, because of the reduced costs and increased opportunity for profit. Therefore, the Council's decision to authorise variations to the Development Agreement, without carrying out a procurement process as required by Directive 2004/18 and the Public Contracts Regulations 2006, was unlawful. (11 February 2015)

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

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Public Health

PHE: A  guide to community-centred approaches for health and wellbeing: this report fnds that the transfer of public health to local government has created opportunities for healthcare to become more community-centred. The report suggests how local leaders can implement strategies involving the community. It also recommends that the most vulnerable should be particularly included to address any inequalities. (11 February 2015)

LGA: Public health transformation twenty months on – Adding value to tackle local health needs: a compilation of case studies showing how local authorities are continuing to make progress on improving health and wellbeing and tackling health inequalities since public health was formally transferred in April 2013. The case studies show a range of ways in which public health in councils is approaching its new roles. They include councils spread across England, covering both rural and urban environments and with varying levels of deprivation and affluence. (10 February 2015)

LGA: Working with business to improve the health of our communities: these case studies show how public health in a number of councils has started to use the opportunities of a local government setting to improve health and wellbeing. (10 February 2015)

LGA: Tackling tobacco and nicotine dependency: the LGA is calling on the Government makes it a priority to use existing money better to tackle smoking. This report outlines a raft of measures which councils would like to take to tackle smoking. It is proposing that these should be paid for by reinvesting 20% of existing duty on tobacco. (11 February 2015)

DH: Smoking in cars set to become illegal: announces that Parliament has approved the Smoke-free (Private Vehicles) Regulations 2015 (SI 2015/286) that extend the existing smoke-free legislation by setting out the circumstances when private vehicles are smoke-free, in order to protect children from the harms of secondhand smoke in private vehicles. The new rules will come into force on 1 October 2015 and people failing to comply could face a £50 fixed penalty notice. (11 February 2015)

DH: Transfer of 0-5 children’s public health commissioning to local authorities – Allocations for 2015/16: sets out the final allocations for the vast majority of local authorities to commission children’s 0-5 public health services in the six-month period from 1 October 2015 to 31 March 2016. (13 February 2015)

DH: Heath visitor and 0-5 commissioning transfer: the DH has published three overview factsheets on the transfer:

(19 February 2015)

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

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Non-Domestic Rating (Small Business Relief) (Wales) Order 2015 (SI 2915/229 (W.11)): this Order, which comes into force in Wales on 9 March 2015, revokes and replaces SI 2008/2770 with amendments. It provides for a rate relief scheme and a temporary rate relief scheme that will apply only to certain categories of hereditament from 1 April 2015 to 31 March 2016. (11 February 2015)

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

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Registration Services

Registration of Marriages Regulations 2015 (SI 2015/207): these regulations, which come into force on 2 March 2015, consolidate the Registration of Marriages Regulations 1986 (SI 1986/1442) and the Registration of Marriages (Welsh Language) Regulations 1999 (SI 1999/1621), and five amending instruments. They also make substantive amendments in consequence of Part 4 of the Immigration Act 2014, which introduces a new referral and investigation scheme to assist investigation by the Secretary of State of suspected sham marriages and civil partnerships. (5 February 2015)

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

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Regulatory Services

Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry and Description of Relevant Persons) Order 2015 (SI 2015/240): this Order brings the Powers of Entry Code of Practice into force on 6 April 2015. It also describes who is a "relevant person" under a statutory duty to have regard to this Code. The Code sets out the considerations that should apply to the exercise of powers of entry and associated powers (not subject to other codes) before, during and after their use. It applies to entry to premises during routine inspections, in addition to powers of entry exercised for enforcement purposes. (11 February 2015)

DBIS: Extra money to keep dangerous goods off Britain’s streets: announces an extra £400,000 funding to help trading standards officers prevent dangerous goods being sold in the UK. The money will be allocated by National Trading Standards and includes £182,000 for its ports and borders project which is improving surveillance at Southampton and Felixstowe ports. (17 February 2015)

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

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Tortious Liability

Social Action, Responsibility and Heroism Act 2015: this Act has received Royal Assent and comes into force on a day or days to be appointed. It makes provision about civil liability for negligence and for certain breaches of a statutory duty by requiring a court which is determining what was required to meet the standard of care in a specific case to have regard to certain specified matters:

  • if the person being sued was doing something for the benefit of society, e.g. volunteering, running an event or trip, or helping out by clearing snow;
  • if they had been acting in a predominantly responsible way; and
  • if they were intervening in an emergency.

The Act does not preclude the court from having regard to any other relevant factors or from deciding what weight to give to each of those matters in determining whether the standard of care has been met. (11 February 2015)

Woodland v Maxwell and Essex CC [2015] EWHC 273 (QB) (QBD): W claimed damages for personal injuries suffered while attending a school swimming lesson at the Council's pool when aged 10. She suffered cardiac arrest and a serious brain injury caused through lack of oxygen after she was seen by the swimming teacher to be floating vertically, shortly after entering the water. W claimed that either M, as lifeguard, or B, as teacher (or both), failed to discharge the duty of care owed to her. Her claim that the Council owed her a non-delegable duty of care was struck out but was restored on appeal by the Supreme Court (see Authority Update 1/11/13).
The court held that, on the evidence, W was in the water for at least 50 seconds and was in difficulty taking in water for at least 30 seconds. This was not noticed by B, the teacher or by M who was on lifeguard duty that day and whose role in scanning the pool to ensure that children were safe was paramount. Both B's and M's failure to observe that W was in difficulties fell below the reasonable standard of care to be expected. Both B and M were negligent and as a consequence the Council was liable for their negligence. (13 February 2015)

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

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