Authority Update

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the two weeks up to 3 April 2015. Items are set out by subject, with a link to where the full document can be found on the internet.

03/04/2015

Claire Booth

Claire Booth

Professional Support Lawyer

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update:

  
   Access to Information    Fire Authorities
   Adult Social Services    Health and Social Care 
   Anti Social Behaviour    Housing
   Best Value    Maladministration
   Business Improvement Districts    Officers
   Byelaws    Parish Councils
   Children's Services    Police 
   Civil Resilience    Powers and Duties
   Community Infrastructure Levy    Procurement
   Community Rights    Public Health
   Delivery of Services    Rating
   Development Control    Regulatory Services
   Economic Development    Standards
   Education    Traffic and Transport
   Environmental Services    Welfare and Benefits

 

Access to Information

Home Office: Data sharing for the prevention of fraud – Code of practice: this Code of Practice is issued under the Serious Crime Act 2007. Public authorities must have regard to it when disclosing information for the purposes of preventing fraud, either as a member of a specified anti-fraud organisation specified by order under the 2007 Act, or otherwise in accordance with any arrangements made by such an organisation. (23 March 2015)
See our alert: Home Office publishes Code of Practice for public authorities on data sharing and fraud prevention.

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

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Adult Social Services

DH: Commissioning services to support women and girls with female genital mutilation: this document sets out what some elements of a successful and safe service to support women and girls with female genital mutilation (FGM) might look like. It has been developed in partnership with healthcare professionals currently involved in providing healthcare services, and it aims to highlight what commissioners might want to consider when developing a new service. It can be used by any healthcare commissioners, by CCGs, area teams and service development leads. (27 March 2015)

DH: Female genital mutilation risk and safeguarding – Guidance for professionals: this guidance supports organisations' development or review of safeguarding policies and procedures around FGM. All organisations must ensure that their approach to safeguarding against FGM is multi-agency and multi-disciplinary. They should work with partners in social services and the police. (27 March 2015)

DH: Statutory guidance for local authorities and NHS organisations to support implementation of the Adult Autism Strategy: this statutory guidance shows how local authorities and NHS organisations should carry out their responsibilities under the Autism Act 2009 to develop services that support and meet the needs of people with autism, and their families and carers. It also explains what support they can expect to receive from local authorities and NHS organisations. The guidance has been revised to reflect changes to support the implementation of the strategy for adults with autism in England since 2010. (26 March 2015)

DH: Adult social care outcomes framework 2015 to 2016 – Handbook of definitions: the ASCOF measures how well care and support services achieve the outcomes that matter most to people. This handbook sets out the technical detail of each measure, with examples to minimise confusion and inconsistency in reporting and interpretation. (25 March 2015)

District Councils' Network: Care Quality Commission briefings: the Care Quality Commission has published a series of new guides to support closer working between its inspection teams and councillors in scrutiny and executive functions of local government. The guides are:

(24 March 2015)

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: New powers make it easier to tackle anti-social behaviour: announces the  coming into force of the Anti-Social Behaviour Injunction, one of six new anti-social behaviour powers under the Anti-social Behaviour, Crime and Policing Act 2014. The injunction can be issued  to stop a person who is committing anti-social behaviour, such as public drunkenness or noisy and abusive behaviour towards neighbours. It can also include positive requirements to help anti-social individuals address the root causes of their behaviour, such as attending alcohol awareness classes, or mediation sessions for neighbours to get the issue resolved. (23 March 2015)
See our alert:  New Anti-Social Behaviour Injunctions finally arrive.

Lincoln City Council v Bird [2015] EWHC 843 (QB) (QBD): the Council appealed against the dismissal of its application for a possession order in respect of a property occupied by B, a secure tenant. The Council had sought possession on the grounds of B's breaches of his tenancy agreement and his anti social behaviour (ASB). The judge found that B had engaged in ASB but that it was not reasonable to order possession so long as B did not breach an ASB injunction.
The court held, allowing the appeal, that the crucial flaw in the judge's approach was that he did not address the requisite statutory factors when deciding that it was not reasonable to make an order for possession. Where there was a breach of Ground 2 of Sch.2 to the Housing Act 1985, the court had to consider the effects of the conduct on persons other than the person against whom the order was sought as well as the continuing effect and the effect the conduct might have if repeated. The judge had considered the effect of B's behaviour on the Council's officers but not on other tenants, neighbours and the local community. His decision was therefore flawed; had he correctly considered the effect of B's behaviour, he would have found that the reasonableness test had been met – B's behaviour took place over a period and was not trivial. As B had ceased his ASB since the injunction, the court would allow the appeal and suspend the possession order, with conditions attached. (26 March 2015)
The judgment is available on Lawtel (subscription required).

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

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Best Value

DCLG: Revised Best Value statutory guidance: sets out some reasonable expectations of the way in which Best Value authorities should work with voluntary and community groups and small businesses when facing difficult funding decisions. It gives a new, clear prominence to requirements on dealing with the voluntary and community sector and small businesses, helps build the confidence of these organisations in holding public agencies to account, and is explicit about the scope for Best Value authorities to consider social value in their functions, as required by the Public Services (Social Value) Act 2012. It also includes a new requirement for authorities not to commission services from, give grants to, or sell assets to individuals or organisations which are considered extremist. The Government’s Extremism Analysis Unit will produce separate guidance on conducting due diligence to check for extremism in due course. (27 March 2015)

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

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Business Improvement Districts

DCLG: Business Improvement Districts – Guidance and best practice: a high level introductory guide which help individuals, local partnerships and local authorities understand the process necessary to deliver a successful town centre Business Improvement District.
There is also a Technical guide for local authorities that focuses on the core roles and responsibilities that a local authority is required to undertake in relation to the development, management and termination of a BID in its area. It includes an explanation of the regulations. (25 March 2015) 

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

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Byelaws

Draft Byelaws (Alternative Procedure) (England) Regulations 2015: these draft regulations, which are scheduled to come into force on 1 October 2015, prescribe classes of byelaws to which s.236 LGA 1972 does not apply and set out the alternative procedure for the making, coming into force and revoking of such byelaws. Under this alternative procedure, authorities will undertake a two stage process for byelaws preparation and consultation before making and advertising byelaws. The Order enables local authorities to make and bring into force certain byelaws without any central Government confirmation involvement, so that local authorities then assume complete responsibility for these byelaws and their lawfulness; it does not give authorities powers to create new categories of byelaws. The Secretary of State may issue guidance on these Alternative Procedure Regulations at a later date. (30 March 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

DfE: Working together to safeguard children – A guide to inter-agency working to safeguard and promote the welfare of children: revised statutory guidance setting out the legislative requirements and expectations on individual services to safeguard and promote the welfare of children. It also provides a clear framework for Local Safeguarding Children Boards (LSCBs) to monitor the effectiveness of local services. The major changes to the guidance cover: the referral of allegations against those who work with children; notifiable incidents involving care of a child; and clarification of the term ‘seriously harmed’. (26 March 2015) 
DfE has also published other non-statutory guidance alongside this document:

DfE: Permanence, long-term foster placements and ceasing to look after a child: statutory guidance for local authorities setting out amendments to Vol.2 of the Children Act 1989 Guidance: Care Planning, Placement and Case Review regarding long-term planning for looked after children. (26 March 2015) 

DfE: Disqualification under the Childcare Act 2006: updated statutory guidance for local authorities and schools on the application of the Childcare (Disqualification) Regulations 2009 and related obligations under the Childcare Act 2006 regarding the employment of staff disqualified from childcare. (17 March 2015) 

DfE: National roll-out of the Adoption Support Fund: letter from the Minister for Children and Families, Edward Timpson, to local authorities on preparations for the roll-out of the Adoption Support Fund from 1 May 2015. This is a £19m fund available for adoptive families in need of therapeutic services. (23 March 2015)  

Ofsted: Guide to registration for children's social care services: updated guidance for providers on whether they need to apply for registration and explaining what processes the application will go through before Ofsted can decide whether they are suitable to be registered as a social care provider or manager. 
See also the updated Checklist for children's social care application and updated guidance on Changes to children's social care services that are registered and/or inspected by Ofsted. (27 March 2015)

Re S (a Child) [2015] UKSC 20 (Sup Ct): in this case, the Supreme Court looked at the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. The court confirmed the general rule that it was inappropriate to make costs orders in care proceedings between parents and local authorities and that costs orders should only be made in unusual circumstances. Parents were entitled to resist the claim of the state to remove their children from them and they should not have to pay the local authority's costs if they lost. But it did not follow from that that if the local authority lost, they were unreasonable in seeking to protect the child: that would depend upon the particular circumstances of the case. In this case, the local authority had not behaved in any way reprehensibly towards the children or their parents. Nor had the local authority behaved unreasonably in relation to the appeal by resisting it, and they were reasonable in maintaining the stance that they had taken at first instance. (25 March 2015)

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

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Civil Resilience

DCLG: Understanding local cyber resilience – A guide for local government on cyber threats and how to mitigate them: this guide sets out the nature of specific cyber threats to local government. It helps the non-technical reader understand the threats and what can be done to reduce their organisations’ vulnerability to security incidents and cyber attacks. (24 March 2015)

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

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Community Infrastructure Levy

Community Infrastructure Levy (Amendment) Regulations 2015 (SI 2015/836): these regulations, which come into force on 1 April 2015, amend SI 2010/948 so as to extend the existing social housing relief from the CIL to cover a wider range of dwellings that are rented below market rate. They also update a reference to Rent Standard Guidance published by the Regulator of Social Housing. (20 March 2015)

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

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Community Rights

DCLG: Government response to the Communities and Local Government Select Committee Inquiry into the Community Rights: the CLG Select Committee's report on Community Rights, published on 3 February 2015, called for the Government to strengthen four of its Community Rights and give people a greater say in what happens to the buildings, services and land in their area. This response addresses all of the report's recommendations, grouped around the individual rights and then recommendations aimed at future community engagement. It states that the Government intends to carry out post-implementation reviews on the Community Rights to Bid and Challenge later this year. (25 March 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

Localis: Commercial councils – The rise of entrepreneurialism in local government: this report considers the innovative ways that the local government sector has responded to austerity and what this might mean for the sector as a whole and wider public services. It finds that many councils across England are increasingly operating entrepreneurially, both acting like and partnering with the private sector. More than half of councils own a trading company; 57% of councils operate a joint venture with the private sector; and without entrepreneurial activities, 8 out of 10 councils say they would have to cut services and raise taxes. The report contends that, with austerity showing no sign of relenting whoever forms the next government, and with inexorable demographic change ahead, councils should further this entrepreneurial agenda. It makes a number of recommendations. (25 March 2015)

RAND Europe: One place, one budget? Approaches to pooling resources for public service transformation: this report, commissioned by LGA, looks at  nine case studies of local authorities in England where a pooled approach is being used for service delivery. It describes the development of different initiatives, comments on what appeared to be the enablers and barriers to progress and draws conclusions on general lessons about the factors that appear to be influencing collaborative working for service delivery. Based on this evidence from the nine initiatives, the report makes recommendations for what a 'public sector reform deal' – a series of 'asks' of government and 'offers' from places – might look like. (25 March 2015)

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

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Development Control

DCLG: Planning update March 2015: Written Statement to Parliament summarising steps that the Government are taking to streamline the planning system, protect the environment, support economic growth and assist locally-led decision-making. (25 March 2015)
DCLG has also issued new planning guidance and a number of new planning SIs:

  • Planning Act 2008: guidance on the pre-application process
  • Planning Act 2008: examination of applications for development consent 
  • Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015/595)
  • Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) 
  • Town and Country Planning (Use Classes) (Amendment) (England) Order 2015 (SI 2015/597)  
  • Town and Country Planning (Compensation) (England) Regulations 2015 (SI 2015/598)
  • Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) (Amendment) Regulations 2015 (SI 2015/760)
  • Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) (Amendment) Order 2015 (SI 2015/797)
  • Town and Country Planning General (Amendment) (England) Regulations 2015 (SI 2015/807)
    • Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2015 (SI 2015/809)

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

    Olwen Dutton.

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    Economic Development

    Draft Legislative Reform (Combined Authorities and Economic Prosperity Boards) (England) Order 2015: this draft Order, once in force, amends Part 6 of the Local Democracy, Economic Development and Construction Act 2009 so as to remove inflexibilities and barriers that can prohibit local authorities from forming combined authorities and economic prosperity boards (EPBs) (and so prevent local authorities working jointly to support economic growth), and which provide an overly burdensome process in making minor changes to existing authorities and EPBs. The amendments will:

    • enable local authorities with non-contiguous boundaries to join or form a combined authority or EPB, or to enable a “doughnut shaped” combined authority or EPB; 
    • enable a county council to delegate or share its transport functions with a combined authority for part of the county council’s area; and 
    • simplify the administrative processes required to make less significant changes to an existing combined authority or EPB.

    (26 March 2015)

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

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    Education

    EFA: Schools forum – Operational and good practice guide: this guide provides local authority officers and school forum elected members with advice and information about the operation of schools forums. There are also quick guides to schools forums structure and schools forums powers and responsibilities 2015 to 2016. (26 March 2015)

    DfE: Special educational needs and disability – Supporting local and national accountability: describes the vision for the whole SEND system, and the roles and responsibilities of local and national organisations in delivering the requirements in the Children and Families Act 2014. It provides a framework to monitor improved outcomes and experiences for children, young people and their families, show how the SEND system is performing, hold partners to account and support self-improvement. (25 March 2015)
    See also the Children and Families Minister Edward Timpson's letter to children's services authorities in which he sets out details of three developments about SEND reforms.

    Cabinet Office: Community First Neighbourhood Matched fund – Summary evaluation report: the Cabinet Office commissioned Ipsos MORI and NEF Consulting to conduct an evaluation of the Community First Neighbourhood Matched Fund programme. Community First is an £80m programme to fund new and existing community groups; Community First Neighbourhood Matched Fund is a small grants programme targeting deprived wards. This report provides an update on their findings. (23 March 2015)

    School Governance (Miscellaneous Amendments) (England) Regulations 2015 (SI 2015/883): these regulations, which come into force on 1 September 2015, amend the arrangements for the constitution and procedures of temporary governing bodies, shadow governing bodies and joint committees of governing bodies, in order to align them with the arrangements for the constitution and procedures of governing bodies of maintained schools. (26 March 2015)
    See also the updated statutory guidance on Constitution of governing bodies of maintained schools. (27 March 2015)

    School Staffing (England) (Amendment) Regulations 2015 (SI 2015/887): these regulations, which come into force on 29 June 2015, amend the requirements for governing bodies of maintained schools in England to check the suitability of people who are to be appointed as members of school staff. The amendments reflect changes in the current legislation as regards the way the Disclosure and Barring Service (DBS) issues and updates enhanced criminal record certificates and changes in the types of certificates that can be issued in different cases. (26 March 2015)

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

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    Environmental Services

    DEFRA: Litter and refuse – Council responsibilities to keep land clear: this guidance explains how local authorities should deal with litter, refuse, dog mess and fly-tipping, and the penalties they can give. Litter authorities should also consider the Code of Practice on Litter and Refuse about how to keep land clear of litter according to the type of land it is. (23 March 2015)

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

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    Fire Authorities

    DCLG: Local merger of Dorset and Wiltshire Fire and Rescue Authorities: sets out the Government's response to the December 2014 consultation. The Secretary of State is satisfied that the revocation of the two authorities has satisfied the statutory tests and is in the interests of economy, efficiency and effectiveness and public safety. He has therefore agreed to Dorset and Wiltshire & Swindon Fire and Rescue Authorities’ request to combine their two authorities. The new combined FRA is established by the Dorset and Wiltshire Fire and Rescue Authority (Combination Order) 2015 (SI 2015/435). (25 March 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

    DH: Mental health aftercare in England and Wales – Arrangements for resolving disputes over ordinary residence involving local authorities in England and Wales: from 1 April 2015 the local authority responsible for mental health aftercare services, under s.117 of the Mental Health Act 1983 will normally be the authority where the person was ordinarily resident immediately before they were detained under the Act. This document sets out arrangements for referring cross-border disputes over ordinary residence. These arrangements only apply where services are provided under s.117 of the Act. (25 March 2015) 

    DH: Principles for maintaining continuity of care when moving across borders within the United Kingdom: these principles set out how responsible authorities should ensure continuity of care for adults who receive care and support and move to another country within the UK. They aim to make continuity of care work across the UK’s borders by setting out clear values in good practice. Local authorities working together and involving the person moving should ensure that people can have confidence that their needs continue to be met when they move. (26 March 2015)

    DH: Local Healthwatch: progress and promise: Local Healthwatch organisations are the local champion for patients, services users and the public, covering both health and social care. This report by the King’s Fund reviews the progress made by local Healthwatch and identifies the positive steps that could be taken across the system to enable a high-performing and effective Local Healthwatch network. (26 March 2015)

    Mayor of London: Better health for London – Next steps: outlines how the Mayor of London, NHS England, PHE, London Councils and the 32 London CCGs, individually and collaboratively, will work towards London becoming the world's healthiest major city. It sets out shared ambitions and how they will measure progress towards their shared goals. (18 March 2015)

    London Councils: Accessing care in 2016 and beyond – A step-by-step guide for over 65s: this flow chart shows how the Care Act funding reforms are likely to impact on whether those over 65 will qualify for support from their council or not. (18 March 2015)

    Care Act 2014 (Commencement No. 4) Order 2015 (SI 2015/993 (C.68)): this Order brings a large number of provisions in the 2014 Act into force on 1 April 2015 and some on 6 April 2015. It also contains transitory modifications. (26 March 2015)

    Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 (SI 2015/914): this Order, which comes into force on 1 April 2015, disapplies existing legislation relating to adult social care and young carers and parent carers in relation to England, in consequence of Part 1 of the Care Act 2014 and ss.96 & 97 of the Children and Families Act 2014 (which amend the Children Act 1989) coming into force in England on 1 April 2015. References to those disapplied provisions in other primary legislation need to be amended to take account of the new provisions; however, they need to remain in force in relation to Wales until such time as Wales bring the Social Services and Well-being (Wales) Act 2014 into force. (26 March 2015)

    Care Act 2014 (Transitional Provision) Order 2015 (SI 2015/995): this Order, which comes into force on 1 April 2015, makes transitional provision in relation to Part 1 of the Care Act 2014. In particular, it sets out general transitional provisions as to when Part 1 applies to a person who has been in receipt of services immediately before 1 April 2015. (26 March 2015)

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

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    Housing

    Nzolameso v City of Westminster Council [2015] UKSC 22 (Sup Ct): the Supreme Court has now handed down its full judgment in this case on the Council's exercise of its duty to secure accommodation for homeless persons in their district so far as "reasonably practicable". This follows its announcement on 17 March that it was quashing the Council's decision to offer N "out of borough" accommodation.
    The Supreme Court held, allowing N's appeal, that local authorities had a statutory duty to accommodate within their area so far as this was "reasonably practicable", which imported a stronger duty than simply being reasonable. If it was not reasonably practicable to accommodate "in borough", they had to, where possible, try to place the household as close as possible to where they were previously living. Whether the accommodation offered was "suitable" required the local authority to have regard to the need to safeguard and promote the welfare of any children and its suitability to meet their needs was a key component in its suitability generally. It was not enough simply to ask whether any of the children were approaching any examinations; the authority should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision. Local authorities also had a number of duties to evidence and explain their decisions about where to accommodate homeless persons.
    In this case, the Council could not show that their offer of the property in Bletchley was sufficient to discharge their legal obligations towards N under the Housing Act 1996 nor had they properly discharged their obligation under s.11 of the Children Act 2004. There was little to suggest that serious consideration was given to the Council's obligations before the decision was taken to offer the property. The review decision was based on the premise that, because of the general shortage of available housing in the borough, the Council could offer accommodation anywhere else, unless N could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in or near the borough, or even in Greater London, and why that had not been offered to her. Nor was there any indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible.
    The court then gave guidance on how local authorities should explain their decisions as to the location of properties offered. They were entitled to take account of the resources available to them, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in their area, and the practicalities of procuring accommodation in nearby authorities. The decision in any individual case would depend upon the policies which the authority had adopted both for the procurement of temporary accommodation, together with any policies for its allocation. Each local authority should have an up to date policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year, that reflected the authority's statutory obligations under both the 1996 Act and the Children Act 2004. Secondly, each local authority should have an up to date policy for allocating those units to individual homeless households. Where there was an anticipated shortfall of "in borough" units, that policy would explain the factors which would be taken into account in offering households those units and in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. These policies should be approved by members of the council and be publicly available. That approach would enable applicants to challenge the lawfulness of the individual decision and also the lawfulness of the policies themselves. A standard paragraph of the sort that was used in this case was not the way in which an authority could ensure that their decisions were properly evidenced and properly explained. (2 April 2015)

    DCLG: Accelerating housing supply and increasing tenant choice in the private rented sector – A Build to Rent guide for local authorities: this guidance outlines practical options as to how local authorities can support the development of private rented sector homes. It includes examples of schemes being supported. (24 March 2015) 

    DCLG: Right to Move – Statutory guidance on social housing allocations for local housing authorities in England: statutory guidance for local authorities on the Allocation of Housing (Qualification Criteria for Right to Move) (England) Regulations 2015 (SI 2015/967), which provide that local authorities must not disqualify certain persons from an allocation of social housing on the grounds that they do not have a local connection with the authority’s district. They aim to ensure that social tenants who need to move for work related reasons are given appropriate priority under the local authority’s allocation scheme. The regulations come into force on 20 April 2015. (27 March 2015)

    DCLG: Right to Move – Technical consultation on a new reasonable preference category: seeks views on the practicalities of proposals to creating a new reasonable preference category to give effect to the Right to Move, so that social tenants who need to move for work are not prevented from doing so because they cannot find a suitable home. The consultation closes on 8 May 2015. (27 March 2015)

    DCLG: Selective licensing in the private rented sector – A guide for local authorities: local authorities currently have powers under the Housing Act 2004 to introduce selective licensing of privately rented homes to address problems caused by low housing demand and/or significant anti-social behaviour. This guidance explains the criteria for making a selective licensing scheme and discusses the types of evidence that local authorities will require to support an application. It sets out what a local authority would expect a scheme to deliver in terms of the economic and social conditions of the designated area, and how this will be evaluated. It also explains the processes that need to be complied with before a designation can be brought into force. 
    A new General Approval comes into force on 1 April 2015 that requires local authorities to obtain confirmation from the Secretary of State for any selective licensing scheme which would cover more than 20% of their geographical area or would affect more than 20% of privately rented homes in the local authority area. (27 March 2015)

    NLGN: A design for life –  How councils and housing associations can collaborate for impact: this report looks at the opportunities offered through enhanced service collaboration between councils and housing associations, enabling both to achieve better health and wellbeing outcomes. It finds that while there are good examples of them working in partnership, too often these can be short term arrangements, because of perceived and real barriers that get in the way of embedding a culture of collaboration. These barriers must be overcome to help partnerships flourish. The pooling of staff, intelligence, training and data will also help to develop a shared culture. The benefits are savings to both partners, and more importantly, improved, wraparound services for residents, especially those with multiple and complex needs. The report also includes useful, practical tools to ensure successful collaborative working. (24 March 2015)

    LGA: Keeping pace - Replacing right to buy sales: this research explores the potential for replacing homes sold under Right to Buy (RTB) and makes recommendations to Government aimed at ensuring that homes sold can be replaced on a one-for-one basis at a local level. The survey shows that most authorities only expect to be able to replace half or fewer of the homes they sell under RTB. The report calls on the next government to adopt a more flexible approach to RTB. (4 April 2015)

    Housing (Wales) Act 2014 (Consequential Amendments) Regulations 2015 (SI 2015/752 (W.59)): these regulations, which come into force in Wales on 27 April 2015, amends SI 1996 3205 that gives housing authorities powers to contract out of their functions relating to the allocation of housing and homelessness. The effect of the changes is to add Chapter 2 of Part 2 of the Housing (Wales) Act 2014 to the homelessness functions that may be contracted out. (18 March 2015)

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

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    Maladministration

    DCLG: Strengthening parish and town council accountability – Consultation on extending the remit of the Local Government Ombudsman to larger parish and town councils: seeks views on proposals to extend the jurisdiction of the LGO to larger parish and town councils so that citizens have an independent route for redress when they have been let down by their parish or town council. The consultation closes on 30 June 2015. (26 March 2015) 

    Cabinet Office: A public service ombudsman: the Gordon Report (October 2014) examined the case for reform of the current ombudsman sector. It recommended creating a new Public Service Ombudsman (PSO), bringing together the existing jurisdictions of the Parliamentary and Health Service Ombudsman (PHSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO). This consultation tests this proposal and the principles underpinning it. It seeks views on what any new ombudsman service should provide, as well as how those services should be provided. The consultation closes on 16 June 2015. (25 March 2015)

    LGA: Handling complaints for service improvement: this workbook is a learning aid for councillors. It takes councillors through the complaints process and their role in it, provides an overview of the ombudsman and what type of complaints they deal with, and explains how to use complaints to drive service improvement. (30 March 2015)

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

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    Officers

    Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 (SI 2015/881): these regulations, which come into force on 11 May 2015, amend SI 2001/3384 in order to simplify and localise the disciplinary process for the most senior officers by removing the mandatory requirement that a Designated Independent Person (DIP) should be appointed. In place of the DIP process, the decision is to be taken by full Council, who must consider any advice, views or recommendations from an independent panel, the conclusions of any investigation into the proposed dismissal, and any representations from the officer concerned. The regulations provide for these new arrangements for taking disciplinary action against the most senior council staff to be given effect by councils modifying their Standing Orders. Authorities must make this modification no later than at the first ordinary Council meeting held after the 7 May 2015 elections. (25 March 2015)
    See our Alert: Dismissing statutory officers – Out with the DIP, in with the IP.

    DCLG: Use of severance agreements and ‘off payroll’ arrangements: guidance for local authorities on their responsibilities regarding: the use of severance agreements and off payroll arrangements, and increasing transparency and accountability on the performance appraisal of senior staff. (27 March 2015)

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

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    Parish Councils

    Legislative Reform (Community Governance Reviews) Order 2015 (SI 2015/998): this Order, which comes into force on 27 March 2015, amends the Local Government and Public Involvement in Health Act 2007 to remove burdens on those who wish to campaign to set up a new parish council. It: lowers the threshold of signatures required to make a valid petition; allows Neighbourhood Forums to trigger a community governance review; and shortens the amount of time the local authority can take to complete a community governance review, from 12 months from the date the review begins, to 12 months from the actual date of receipt of the petition or application. (26 March 2015)

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

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    Police

    Compact Voice: Practical guide to engaging with Police and Crime Commissioners: this briefing is part of a series aimed at supporting voluntary organisations to work better with local commissioning bodies. Produced in partnership with Clinks, the information is based on the experiences of a range of organisations who have established strong links with PCCs. It has also had input from various PCC's offices, and government departments. It highlights a number of steps that organisations can follow if they wish to build better links themselves. (24 March 2015)

    Cabinet Office: Police and crime commissioners and civil society: this report explores some of the ways that civil society organisations and PCCs work together, with examples that illustrate positive working relationships. It has been compiled through a partnership of the Cabinet Office, Home Office and the Association of Police and Crime Commissioners (APCC). (24 March 2015)

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

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    Powers and Duties

    Local Government (Religious Observances) Act 2015: this Act has received Royal Assent and comes into force on 26 May 2015. It gives local authorities, fire and rescue authorities, integrated transport authorities and combined authorities the power to include prayers, etc. as an item of business should they wish to do so, and to support, facilitate, or be represented at religious or similar events. The Explanatory Memorandum states that in particular this will ensure that: small parish councils which do not have the power of general competence can take time for prayers at their meetings; and authorities in England can support activities, such as the annual commemoration on Remembrance Sunday, which have a religious dimension. (26 March 2015)

    Deregulation Act 2015: this Act has received Royal Assent. The Act contains a range of measures in line with the Government’s aim to reduce burdens on businesses and public authorities. Its provisions include the repeal of a number of legislative duties placed on local authorities:

    • repeal of s.4 LGA 2000 that requires local authorities to produce a ‘sustainable community strategy;
    • repeal of ss.105-113 LG&PIH Act 2007 removing the duty to prepare and submit Local Area Agreements;
    • repeal of Part 7 LDEDC Act 2009 regarding the duty to prepare multi-area agreements; 
    • removal of the requirement to consult regarding local authority functions under s.3A LGA 1999.

The Act also:

  • extends the Right to Buy so that council tenants will qualify once they have lived in their properties for at least three years;
  • removes the requirement for social work providers to be registered with and inspected by Ofsted;
  • replaces the current criminal sanctions under s.46 EPA 1990 for non-compliance with local authority requirements for collection of household waste, with a new fixed penalty scheme;
  • removes the requirement for governing bodies of maintained schools to set annual targets in relation to school performance;
  • amends the licensing regime regarding community events and ancillary business, temporary event notices and late night refreshments;  
  • gives the Secretary of State power to prohibit CCTV or other devices in connection with parking enforcement; and
  • repeals Part 11 LG&PIH Act 2007 that enables the Secretary of State to create Joint Waste Authorities at the request of the relevant local authorities.

(26 March 2015)

Local Authorities (Prohibition of Charging Residents to Deposit Household Waste) Order 2015 (SI 2015/973): this Order, which comes into force on 23 April 2015, prohibits local authorities from using their General Power of Competence under s.1 of the Localism Act 2011 to charge their residents to enter into or exit from household waste recycling centres (HWRCs), or to deposit household waste or recycling at such centres. (26 March 2015)
See also Local Government (Prohibition of Charges at Household Waste Recycling Centres) (England) Order 2015 (SI 2015/619), in force 6 April 2015, which prohibits "best value authorities" in England from using their powers under s.93(1) of the Local Government Act 2003 to charge residents to enter into or exit from HWRCs, or to deposit household waste or recycling at such centres.

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

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Procurement

Crown Commercial Service: Procurement policy notes: the CCS has published five more PPNs containing guidance on best practice for procurement for public sector organisations:

  • 04/15: Taking account of suppliers’ past performance
  • 05/15: Prompt payment and performance reporting
  • 06/15: Sustainable skills development through major projects
  • 07/15: Open standards for technology
  • 08/15: Tax arrangements of appointees.

Bevan Brittan byte size procurement updates: we have published a further three articles in our "byte size" legal updates, in which we look at the new Public Sector Directive and implementing Regulations and deconstruct them into a topic based approach. For each topic we provide a brief explanation of the provisions in the new Directive. We also highlight some of their practical implications. They cover:

Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 (TCC): the Council applied to strike out HB's procurement challenge on the ground that the claim form was not served within the prescribed time limit. HB was claiming damages and a declaration of ineffectiveness in respect of the award of a contract by the Council for the construction of a leisure centre. HB was notified that the contract had been awarded to another bidder on 26 September 2014. On 31 October 2014 its agent sent the Council unsealed copies of its claim form and Particulars of Claim by recorded delivery at the same time as it sent the claim form and Particulars of Claim to the court for sealing. The court issued the claim on 3 November and posted it to HB for service on 10 November. The claim form and Particulars of Claim were deemed to be served on 18 November 2014, being the second business day after they were posted. Reg.47F of the Public Contracts Regulations 2006 provides that the claim form must be served on the contracting authority within seven days after the date of issue, and there is no power to extend the time for service of the claim form.
The court held, refusing the application, that there was a potential conflict between sub-paras.(1) and (5) of Reg.47F that was profoundly unsatisfactory and so, adopting a purposive approach, the court would construe the regulation as meaning that valid service was achieved when the relevant step mentioned in CPR 7.5 (1) was completed. Provided that was done within the seven-day period, the requirement of the regulation was met . HB did serve the claim form within seven days of starting proceedings as reg.47F(1) required, but it did not serve it in accordance with the rules of court in that it had not been sealed and did not bear the claim number, which amounted to an irregularity. However, neither of these shortcomings deprived HB of any knowledge of the nature of the claim against it or of the fact that proceedings had been or were about to be started. The purpose of the tight time limits in the Regulations was to enable the parties to procurement disputes to know exactly where they stood at the earliest opportunity. Since there was a clear failure by the TCC Registry to return the documents promptly, it would not be right for the court to decline to cure the irregularity notwithstanding the fact that the problem was brought about in perhaps equal measure by the failures of the agent. In all the circumstances, it was fair and proportionate, as well as being in accordance with the overriding objective of the CPR, to cure the irregularity so that these proceedings could be regarded as having been properly brought. The application to strike out the claim failed. (20 March 2015)

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Public Health

DH: Transfer of 0-5 children’s public health commissioning to local authorities – 0-5 Public Health Allocations for 2015/16: revised details of the final allocations for almost all local authorities to commission children’s 0-5 public health services in the six-month period from 1 October 2015 to 31 March 2016. (26 March 2015) 

LGA: Local solutions, healthy lives: Council's role in drug and alcohol services: describes how public health in a number of councils has started to use the opportunities of a local government setting to improve health and wellbeing. The eight case studies show a range of ways in which public health in councils is approaching drug and alcohol services. (31 March 2015)

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) and Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) (Amendment) Regulations 2015 (SI 2015/921): these regulations, which mainly come into force on 1 October 2015, amend SI 2013/351 to require local authorities to provide five health and development assessment and reviews as set out in the Healthy Child Programme to be offered to pregnant mothers and children between the ages of 0 – 5. It also adjusts the 12 month exemption period from the Community Right to Challenge for health visiting, Family Nurse Partnership and other child health services for children aged under 5 years so that it begins on 1 October 2015, to reflect the changed date of taking on of responsibility for commissioning of these public health services by local authorities. (23 March 2015)

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

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Rating

LGA: Business rate retention – The story continues: this publication follows on from the LGA's 2013 survey of councils about their early experience of the business rates retention system. It makes proposals to improve the system by mitigating financial risks and provide councils with more financial incentives. The new survey found that there are common emergent issues among local authorities. The primary challenges are the level of financial risk that councils face due to appeals and dependence on a small number of large businesses for a significant proportion of business rate income. Many local authorities also said that the levy mechanism was a counterproductive feature of the system which stifled incentives to grow the local economy – but it is used to fund the safety net mechanism which was welcomed by other authorities. (24 March 2015)

Council Tax and Non-Domestic Rating (Powers of Entry: Safeguards) (England) Order 2015 (SI 2015/982): this Order, which comes into force on 1 October 2015, amends the Local Government Finance Act 1988 and the Local Government Finance Act 1992 to prescribe a new requirement that must be fulfilled before a valuation officer may exercise their powers of entry for the purposes of council tax valuation and non-domestic rating. It also amends the required notice period before exercising the powers under the 1988 Act, and changes the fine level specified in the 1992 Act. (26 March 2015)

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

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Regulatory Services

Local Government (Review of Decisions) Act 2015: this Act has received Royal Assent and comes into force on 26 May 2015. It amends the Local Government Act 1974 so as to ensure that councils think carefully about any decision to stop an event or impose conditions or restrictions upon the event on the grounds of health and safety, by requiring them to put their decision in writing, and carry out a review where requested following their decision (and then put the outcome of that review in writing). It also allows the Local Government Ombudsman to ‘fast-track’ complaints related to such decisions. (26 March 2015)

DCLG: Dealing with illegal and unauthorised encampments – A summary of available powers: sets out the robust powers that councils, the police and landowners now have to clamp down quickly on illegal and unauthorised encampments. It makes it clear that, while local authorities have a clear leadership role in tackling illegal and unauthorised encampments, they should work collaboratively with other agencies, such as the police or the Highways Agency, depending on where the most appropriate powers sit. (27 March 2015)

Single Use Carrier Bags Charges (England) Order 2015 (SI 2015/776): this Order, which comes into force on 5 October 2015, requires retailers with 250 or more employees to charge a minimum amount of 5p for lightweight plastic bags used for taking goods out of shops or for delivering them. The charge is to be enforced by local authority trading standards officers, with two types of civil sanctions: Fixed Monetary Penalties or Discretionary Requirements. They also have duties to publish reports and guidance about enforcement action. The Order ceases to have effect on 5 October 2022. (19 March 2015) 

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

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Standards

Cabinet Office: General Election guidance 2015: guidance for all UK civil servants, NDPBs and other arm's length bodies, setting out the principles underlying the conduct of civil servants in the pre-election "purdah" period, which runs from 30 March - 7 May 2015. Although the guidance doesn't specifically apply to local authorities, they should observe its principles so far as they are applicable. Note in particular Section G Decision making, which states that "it is customary ... to observe discretion in initiating any action of a continuing or long-term character. Decisions on matters of policy, and other issues such as large and/or contentious procurement contracts ... should be postponed until after the Election, provided that such postponement would not be detrimental to the national interest or wasteful of public money." It also confirms that consultations should not be launched during the pre-election period.   (30 March 2015)
See also our Alert: Going into "purdah" – Decision making in the pre-election period.

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

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Traffic and Transport

DfT: Operational guidance to local authorities – Parking policy and enforcement: revised guidance for local councils which: sets out the government policy framework by which local councils should be setting their parking policies; tells local councils of changes resulting from the introduction of the Traffic Management Act 2004; and advises enforcement authorities of the procedures to follow with regard to enforcing parking restrictions.
There is also updated Statutory guidance to local authorities on the civil enforcement of parking contraventions that explains how to approach, carry out and review parking enforcement. (25 March 2015)

Note that under a Machinery of Government change, responsibility for off-street parking has been transferred from DfT to DCLG (12 March 2015).

DCLG: Parking reform – Tackling unfair practices: Discussion paper and call for evidence: seeks views on the management and regulation of parking on private land  and land owned by public bodies, and the provision of cash payment facilities for municipal parking. It also asks for suggestions as to what policy areas should be a priority for the department, and how the Government might take this forward in the next Parliament. The consultation closes on 27 May 2015. (28 March 2015)

Traffic Commissioners for Great Britain: Local bus services in England (Outside London) and Wales: this revised guidance for bus operators offers examples of good practice for bus operators on: service registration, service monitoring and systems and resources. It confirms that punctuality and reliability standards will remain unchanged from the existing window of tolerance – where a bus can be up to 1 minute early and 5 minutes late. A punctuality target of 95% – within the window of tolerance – will also continue to be the standard for registered services. (26 March 2015)

Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015 (SI 2015/1001): this Order, which comes into force on 1 April 2015, amend SI 2007/3483 to require that a penalty charge notice in respect of a parking contravention on a road be served by fixing it to the vehicle, except in certain cases. They set out the prescribed circumstances in which the use of CCTV and service of parking contravention notices by post are deemed to be appropriate in the context of on-street parking. Other than these prescribed circumstances the general position is that CCTV evidence alone cannot be used to issue a parking contravention notice by post. Separate provision is made in relation to off-street parking. The effect of the regulations is that local authorities are restricted from issuing parking tickets in the post based solely on evidence from CCTV cameras – traffic wardens will need to either affix tickets physically to the vehicle, or hand the ticket to the person that appears to be in charge of the vehicle. (27 March 2015)

Williams (The Sustainable Totnes Action Group) v Devon CC [2015] EWHC 568 (Admin) (Admin Ct): STAG, a group of local traders and residents, applied under para.35 of Sch.9 to the Road Traffic Regulation Act 1984 for an order quashing a Traffic Regulation Order (TRO) made by the Council that made permanent an experimental traffic order restricting traffic in the centre of Totnes. STAG contended, inter alia, that the Council had failed to hold a public inquiry.
The court held, quashing the TRO, that under reg.9 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996, the Council was required by way of condition precedent of the making of a TRO to cause a public inquiry to be held if the effect of the proposed order was to prohibit or restrict the passage of public service vehicles along a road and an objection had been made to the TRO. Here, the community bus was clearly limited and controlled in what it could do and the limitation had had real and substantial practical effect. There was a clear breach of the obligation to hold a public inquiry and as a result a failure to comply with a relevant requirement in force before the TRO could be made. The holding of a public inquiry was not just a formality and the loss of this opportunity was significant prejudice to the interest of the members of the applicant, the users of  the bus and the public of Totnes generally. (6 March 2015)

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

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Welfare and Benefits

R (Hardy) v Sandwell MBC; Zaccheus 2000 Trust (Intervener) [2015] EWHC 890 (Admin) (Admin Ct): this case considered whether the Council had lawfully taken into account the care component of disability living allowance (DLA(c)) when assessing the amount of a discretionary house payment (DHP). The court ruled that the Council's blanket policy of taking into account all of an applicant's income was based on a misunderstanding of its powers. The policy fettered the exercise of the Council's discretion and so its decision was unlawful.
H and his wife lived in a 3-bedroomed council house that had been adapted for their disabilities. Their only income was their state benefits. Following the introduction of the so-called "bedroom tax", their property was deemed to be under-occupied and H's Housing Benefit (HB) entitlement was automatically reduced by 25%. H applied to the Council for DHPs to make up the shortfall of £23.32pw. The Council calculated that H's income, excluding the mobility component of their disability living allowance (DLA(m)), but including DLA(c), exceeded their expenses by £16.63pw. Assuming that that surplus income could be applied towards their rent, the Council awarded DHPs at the rate of £6.69pw. H applied for judicial review of the Council's decision. He contended that: the Council's policy of taking DLA(c) into account was contrary to the DHP Guidance and an unlawful fetter on the Council's discretion; its decision constituted unlawful discrimination arising from disability contrary to Art.14 ECHR; and the Council had breached its Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010. Z, as Intervener, submitted that the Council's conduct also constituted discrimination in the exercise of a public function, contrary to ss.15, 19 and 29(6) of the 2010 Act, and that including DLA(c) as income in a means-assessment process which was not itself related to the provision of care was contrary to the statutory scheme and therefore irrational.
The court held, granting H's application, that the Council's blanket policy of taking into account all of an applicant's income (except DLA(m)) was unlawful, as it was based on a misunderstanding of its powers. The Council had adopted its policy to include DLA(c) as income because it (wrongly) understood that it was not allowed to exclude that benefit, and so it could not have given proper consideration to the DHP Guidance (which advised authorities to consider not taking such benefits into account) nor could it have exercised its discretion on the issue properly or at all. The policy constituted a failure to exercise the Council's discretion and fettered any future exercise of that discretion, and so the decision was unlawful. The Council's approach  to awarding H DHPs was an example of indirect discrimination because it treated disabled applicants and their disability-related income in exactly the same way as it treated others and their non-disability related incomes, giving rise to unfavourable treatment to the disabled applicants. DLA(c) was not the same as any other income, but was awarded specially to enable disabled persons in need of personal care to cope better with their disabilities in the way they saw fit. Equally, the pattern of expenditure of a disabled person might well be different and more difficult to predict than that of an applicant without a disability. There was a clear breach of the Council's PSED as the monitoring exercise undertaken was a plain case of ticking boxes rather than a substantive consideration of how the Council's discretion was being exercised and its effect on disabled applicants.
Regarding Z's argument, the key point remained that specific provision was made to ring-fence DLA(m) but no such protection was given to DLA(c) other than in relation to HB. Parliament could have provided such protection (and qualified it as necessary), but did not do so. Whether it was right for DLA(c) to be taken into account in assessing another benefit in any particular case might well engage issues of public law and the Human Rights Act, but taking into account DLA(c) in calculating another benefit was not in itself irrational. (30 March 2015)

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

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