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 thetwo weeks up to 15 May 2015. Items are set out by subject, with a link to where the full document can be found on the internet.

15/05/2015

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    Government Policy
   Children's Services    Health and Social Care
   Contractual Liability    Housing
   Delivery of Services    Members
   Development Control    Officers
   Devolution    Procurement
   Education    Standards
   Governance    Tortious Liability

 

Access to Information

Ofsted: Information sharing protocol: sets out a protocol for sharing of pre-publication reports and other information regarding services for children and vulnerable adults. (15 May 2015)

Dransfield v Information Commissioner and Devon CC; Craven v Information Commissioner and Department for Energy and Climate Change [2015] EWCA Civ 454 (CA): in two conjoined appeals, the Court of Appeal considered the scope of a public authority's power to reject a request under s.14 FOIA 2000 on the grounds that the request was "vexatious". In D's case, the principal issue was whether a request could treated as vexatious if it was not itself vexatious but previous requests had been. In C's case, the  principal question was whether the tests under s.14 FOIA and reg.12(4)(b) of the Environmental Information Regulations 2004 (manifest unreasonableness) had the same meaning.
The court dismissed both appeals and gave guidance on deciding whether a request was vexatious. In defining "vexatious", the emphasis should be on an objective standard and that the starting point was that vexatiousness primarily involved making a request which had no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request was vexatious. In D's case, the UT had rejected the FTT's test that the line had to be drawn at previous requests which "infected" the request under consideration. The FTT's test could not be upheld because it involved writing words into FOIA which the court could not do. 
In C's case, the UT was right to proceed on the basis that there was no distinction between the two tests. The expression "manifestly unreasonable" had to be interpreted so as to give effect to the objectives of Directive 2003/4. It differed from "vexatious" since it clearly imposed an objective test and appeared alongside a requirement in reg.12(1)(b) for the authority to be satisfied as to the public interest in the disclosure. If the court's approach to s.14 was right, then the difference between the two phrases was vanishingly small. "Manifestly" meant that the unreasonableness had to be clearly shown, to save the authority from having to make any detailed investigation into matters which it did not know or were not in the public domain. It was doubtful whether "manifestly" in practice added much since before it used s.14 FOIA or reg.12 EIR, the authority would have to be confident that the request was vexatious or manifestly unreasonable before it rejected it. 
In relation to the EIR, the UT had not erred when remaking the decision by taking into account the costs of compliance. There was no provision which prevented the decision maker from taking the costs of compliance into account in considering whether the request was manifestly unreasonable, but he would have to balance those costs against the benefits of disclosure under reg.12(1)(b) EIR. (14 May 2015)

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

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Children's Services

Ofsted: Inspecting children's homes framework: this updated document sets out the framework and evaluation criteria for the inspection of children’s homes from 1 April 2015. (11 May 2015)

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

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Contractual Liability

Community 1st Oldham (Chadderton) Ltd v Oldham MBC [2015] EWHC 1263 (TCC): in this case, the court discussed various matters arising out of a Lease Plus Agreement (LPA) under which a community centre with facilities including a swimming pool and a library, was provided to the Council. The claimant sought declarations as to: the meaning of the LPA; whether it was estopped from disputing the Council's entitlement to make certain deductions; the way in which the library was to be treated in terms of functional areas for the purpose of calculating deductions for availability failures; whether there had been a breach of the safety condition or a service failure in relation to the floor of the swimming pool changing area and, if so, whether the Council was entitled to make deductions, and over what period and in what sum. (14 May 2015)

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

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Delivery of Services

House of Commons Library: Local government – New models of service delivery: this briefing paper gives a high level overview of new forms of service delivery being implemented by local authorities, including shared services, outsourcing, 'insourcing', and the use of mutuals. It includes examples. (13 May 2015)

LGA: National map of shared services: The LGA has relaunched its Shared Services Map which reveals that almost £500m of taxpayers' money has been saved by councils sharing services. The latest map shows there has been a huge increase in savings made from councils sharing back office functions, such as legal, audit and HR, which resulted in £145m in savings. There were also big increases in the sharing of adult services, procurement services, and capital assets. (11 May 2015)

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

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Development Control

Historic Environment (Wales) Bill: this Bill has been introduced into the National Assembly and is at Stage 1.  The Bill gives more effective protection to listed buildings and scheduled monuments, enhances existing mechanisms for the sustainable management of the historic environment, and introduces greater transparency and accountability into decisions taken on the historic environment. It includes powers enabling authorities to act quickly if a listed building is under threat from unauthorised works and give them greater flexibility in dealing with historic buildings that require urgent works to protect them from further decay. It also require local authorities to create and maintain Historic Environment Records that will help inform planning or re-development decisions in their areas, and allows owners of historic assets to negotiate partnership agreements with consenting authorities for a period of years. (5 May 2015) 

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

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Devolution

HM Treasury: Chancellor on building a Northern Powerhouse: the Chancellor has given a speech in Manchester in which he outline plans to give English cities powers over housing, transport, planning and policing, using Greater Manchester as a blueprint for other large cities. (14 May 2015)

House of Commons Library: Local government devolution – Policy proposals: during 2014 and 2015 a number of reports made proposals for devolution of powers to local authorities or local areas in England. Most were published by think-tanks, with some coming from political parties. This briefing paper summarises proposals for devolution of powers to local authorities or local areas in England. It groups them by policy area, including housing; further education and skills; employment; transport; and the probation service. (14 May 2015)

ResPublica: Power, people and places: A manifesto for devolution to Britain’s key cities: this report argues that that key cities, such as Sunderland, Cambridge and Plymouth, could be transformed into economic powerhouses creating jobs in specialist centres of industry and technology if they managed their own budgets. It says their economic potential merits additional powers, equivalent to those currently devolved to larger city-regions. These include the potential for greater fiscal devolution – the freedom to set and retain local taxes such as council tax, business rates and other concessions such as tax discounts for tourism. (1 May 2015)

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

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Education

Welsh Government: Draft non-statutory guidance for local authorities on elective home education: seeks views on draft non statutory guidance which highlights good practice from local authorities and home educators on educating a child within the home environment. The consultation closes on 3 July 2015. (8 May 2015)

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

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Governance

DCLG: Further directions to Tower Hamlets council under section 15 of the Local Government Act 1999: the Secretary of State has issued further Directions in accordance with his powers under s.15 LGA1999 to address failures by Tower Hamlets LBC to comply with its best value duty. The Directions give the Commissioners power to require the Council to carry out any action they believe is necessary to “avoid so far as practicable incidents of poor governance or financial mismanagement”. An accompanying covering letter sets out the circumstances in which the Secretary of State has made these additional Directions, his reasons for this exercise of his powers, and the implications of the additional Directions for the authority.
All the publications relating to the inspection carried out by PwC of the governance of Tower Hamlets LBC are on the DCLG web page. 6 May 2015)

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

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Government Policy

Election 2015: Prime Minister and ministerial appointments: This announcement lists all the ministerial appointments in the new government, set out by department. The new Secretary of State for Communities and Local Government is Greg Clark. Other new DCLG appointments are:

  • Ministers of State: Brandon Lewis and Mark Francois;
  • Parliamentary Under Secretaries of State: James Wharton (with responsibility for the Northern Powerhouse) and Marcus Jones.

(14 May 2015)

LGA: LGA in Parliament 2010-15: overview of the LGA's work during the previous Parliament, highlighting how it has sought opportunities to raise issues important to local government, influence legislation and promote the important work of councils in delivering the local services that their residents value. It includes details of its work lobbying for positive changes to legislation, briefing for debates and parliamentary questions, submitting evidence to parliamentary inquiries and organising events that bring together parliamentarians, LGA Vice-Presidents and councillors. (8 May 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

Welsh Government: Implementation of the Social Services and Well-being (Wales) Act 2014 – Consultation on the regulations: seeks views on draft Partnership Arrangements (Wales) Regulations 2015 and draft statutory guidance in relation to Part 9 of the 2014 Act (Co-operation and Partnership). The focus of the regulations is on improving outcomes and the well-being of people. The regulations will also improve efficiency and effectiveness of service delivery, based on s.14 of the Act, which requires local authorities and Local Health Boards to jointly undertake an assessment of needs for care and support, support for carers and preventative services and the range and level of services in place to meet these needs. 
The Welsh Government is also consulting on the draft Code of Practice in relation to Part 10 (Complaints, Representations and Advocacy Services) of the Act.
Both consultations close on 31 July 2015. (8 May 2015)

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

 

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Housing

Housing (Wales) Act 2014 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Order 2015 (SI 2015/1272 (W.88) (C.73)): this Order brings Part 2 of the Housing (Wales) Act 2014 (homelessness) into force in Wales on 27 April 2015. The Order also makes transitory, transitional and saving provisions. (21 April 2015) 

Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 (SI 2015/1265 (W.85)): these regulations, which come into force in Wales on 27 April 2015, specify a list of categories of applicants for the purposes of s.78 of the Housing (Wales) Act 2014 relating to having regard to intentionality. The list is based on s.70 of the Act, which sets out the list of persons who have a priority need for accommodation. (21 April 2015)

Homelessness (Review Procedure) (Wales) Regulations 2015 (SI 2015/1266 (W.86)): these regulations, which come into force in Wales on 27 April 2015, set out the procedure to be followed under s.85 of the Housing (Wales) Act 2014  in connection with a review by a local housing authority of specific decisions relating to homelessness. (21 April 2015)

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

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Members

LGA: Councillors’ Guide – A guide for new councillors 2015/16: updated guide for new councillors on their role and responsibilities. (6 May 2015)

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

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Officers

LGA: Changes to statutory dismissal procedures for Heads of Paid Service, Monitoring Officers and S.151 Finance Officers: the latest LGA Advisory Bulletin no.624 looks at the changes to the statutory disciplinary and dismissal procedures applying to English local authorities’ Heads of Paid Service, Monitoring Officers and Chief Finance Officers, as set out in the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 (SI 2015/881), which replace the Designated Independent Person (DIP) process. (30 April 2015)

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

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Procurement

DfE: Effective buying for your school: updated departmental advice for schools on buying practice and how to achieve better value for money. It also helps school managers, staff and governing bodies understand their obligations in relation to the basic rules of procurement when spending public money. (12 May 2015)

Cabinet Office: Public Contracts Regulations 2015 – Statutory guidance for contracting authorities and suppliers on paying undisputed invoices in 30 days down the supply chain: updated statutory guidance to contracting authorities on the payment of valid and undisputed invoices within 30 days. (13 May 2015)

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

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Standards

SOLACE: Local public service managers – Code of Ethics: SOLACE is calling for evidence on a draft Code of Ethics for Local Public Service Senior Managers. This is an overarching statement of ethics, based upon behaviours and therefore focused on the individual, as opposed to group or organisational culture. It is intended to be applicable to all those who hold senior management roles in local public services led by locally elected politicians. The closing date for comments is 5 June 2015. The group intends to publish an initial analysis of the responses in July, with a view to launching a new code in October. (8 May 2015)

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

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Tortious Liability

Buckett (by his mother and litigation friend Amanda Buckett) v Staffordshire CC (Unreported) (QBD): B claimed damages for personal injuries suffered when, aged 16, he trespassed onto school grounds and fell through a glass skylight. He sustained a serious head injury which left him with significant physical, intellectual and behavioural dysfunction. He contended that the Council, as occupier of the school, acted negligently and failed in its statutory duty to him as a trespasser, under s.1(3) of the Occupier's Liability Act 1984.
The court held, dismissing his claim, that the 1984 Act was not engaged. The judge found as a fact that there was no danger due to the state of the premises nor should the Council have been alert to such danger or be required to take steps to protect a trespasser against it. B's injuries arose directly from his own actions in finding himself returning from height, over the security fencing, to the point where he was perched in the act of climbing down from the security fence and then by his actions, of jumping onto the skylight pane. The Council did not owe him any duty to control this activity as a trespasser, even though his presence in the vicinity of the skylight ought reasonably to have been foreseen.
Had B been owed a duty by the Council, he would have been 50% to blame for his own injuries, as his actions were seriously potent and blameworthy. (13 April 2015)
The judgment is available on Lawtel (subscription required).
For a discussion of this decision, see our Alert: Obligations to trespassers on local authority premises.

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

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