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 29 May 2015. 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:

   Community Rights    Legislation
   Consultation    Licensing
   Devolution    Public Health
   Equality and Discrimination    Regulatory Services
   Finance    Standards


Community Rights

Welsh Government: Protecting community assets: seeks views on a proposed new Welsh law to help communities bid for, own and run assets transferred from the public and private sectors, such as  halls, churches, playing fields, pubs and post offices. Other options include strengthening existing guidance on community assets, or mirroring the current situation in England through enacting the Assets of Community Value Measures in the Localism Act 2011. The consultation closes on 11 September 2015. (21 May 2015)

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

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R (Morris) v Rhondda Cynon Taf CBC [2015] EWHC 1403 (Admin) (Admin Ct): M sought judicial review of the local authority's decision to cease funding full-time nursery education for three year olds from September 2015. They argued that the information provided by the authority in the consultation was insufficiently fair and accurate. They submitted that R (Moseley) v Haringey LBC [2014] UKSC 56 established a general proposition that it was necessary to invite views on possible alternatives to the proposal so as to enable an intelligent response.
The court held, refusing the application, that while Moseley stated the general principles on consultation, it did not establish any inviolable rule that alternatives had to be consulted upon in every consultation exercise. Sometimes fairness might require it to be the case so that consultees could make sense of the consultation exercise. When that was the case, the alternatives would have to be realistic alternatives, which would always depend upon the particular circumstances of the consultation to be carried out. The authority had also discharged its duty to secure sufficient childcare so far as it was reasonably practicable to do so. (18 May 2015)

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

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Cities and Local Government Devolution Bill: this Bill has been introduced into the House of Lords and received its 1st Reading. The Bill takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It amends Part 6 of the Local Democracy, Construction and Economic Development Act 2009 to enable the Secretary of State to make regulations that: 

  • provide for an elected Mayor for the combined authority’s area who would exercise specified functions individually and chair the authority; 
  • provide for the possibility for the Mayor additionally to undertake the functions of Police and Crime Commissioner (PCC) for the combined authority area (in place of the PCC); 
  • remove the current statutory limitation on functions that can be conferred on a combined authority (currently economic development, regeneration, and transport); and 
  • provide for streamlined local governance as agreed by councils.

See also the Explanatory Notes to the Bill. (29 May 2015)

LGA: English devolution – Local solutions for a successful nation: this paper sets out local government's offer of a new partnership with Government to tackle the big challenges facing the country and secure a bright future for all. It aims to open discussion on the shape and extent of an ambitious new local/central partnership that should be based on clarified and mutually-respected roles and local government’s offer to play its full part in creating a devolved solution that will realise the new administration’s national vision. (21 May 2015)

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

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Equality and Discrimination

R (Diocese of Menevia) v City and County of Swansea Council [2015] EWHC 1436 (Admin) (Admin Ct): the claimants were pupils at a Roman Catholic school in Swansea that was supported by the Diocese. The Council was the local education authority for the area. The claimants applied for judicial review of the Council's decision to amend its school transport policy so that  pupils attending faith schools would be entitled to free public transport only if the relevant distance criteria were met and no suitable alternative school (including non-faith schools) was located within two/three miles of home. This amended policy did not apply to those pupils who attended Welsh medium schools, so pupils whose home was more than three miles from a Welsh medium comprehensive school would continue to be eligible for free transport to and from that school even though there was an English school within three miles of home. The claimants argued that the amended policy constituted indirect race discrimination under s.19 of the Equality Act 2010 and under Art.14 and Protocol 1 Art.2 of the ECHR. They also claimed that the report to Council contained an error of law which vitiated the Council's decision.
The court held, granting the application and quashing the decision, that BME children would be at a particular disadvantage as compared with White British children as a consequence of the amended policy. The twin objectives of costs saving and promoting access to education through the medium of Welsh was sufficiently important to justify limiting a fundamental right, and the amended policy was rationally connected to the objective. On the evidence, the court was not satisfied that the means chosen by the Council were no more than was necessary to accomplish the objective, nor was it satisfied that the amended policy was a proportionate means of achieving a legitimate aim. The Council did not have to establish that there was no other way of achieving its objectives but it had to demonstrate that its amended policy was reasonably necessary; that was not possible in the absence of a clear appraisal of alternatives. The challenge under the ECHR failed - the provisions of the ECHR were not engaged and the obligation under Protocol 1 Art.2 did not extend to subsiding and/or paying the whole cost for transportation between home and school.
The Education Department officer's report to the Council contained a clear error of law that vitiated the decision. The error of law was not immaterial. The fact that members were advised that they had no option but to continue with the provision of free transport to Welsh medium schools provided the distance criteria were met was likely to be a consideration of some significance in their deliberations; had the true legal position been explained to members their decision might well have been different. (22 May 2015) 

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

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DCLG: Localising Council Tax support new burdens grant determination (2015 to 2016): confirms the amount of 2015/16 new burdens grant payments to local authorities in England. (19 May 2015)

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

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DCLG: Greg Clark tells Whitehall and town halls: loosen your grip on surplus land: the Communities Secretary Greg Clark is to urge departments to “loosen their grip” on sites that are standing idle so they can be released for new housebuilding, with a clear target to release enough land for 150,000 homes by 2020. At the forthcoming meeting of the new dedicated ministerial Housing Taskforce, he will call on England’s councils to follow the Government’s lead and look at the land assets they hold, and use some of those plots, particularly those on brownfield sites, to provide new homes for their communities. The Housing Bill (see below) will require local authorities to establish and maintain a register of brownfield land suitable for housing development, which will include their own land. (31 May 2015)

DCLG: Right to Buy – Summary booklet: this updated booklet is for tenants interested in taking up their Right to Buy. It provides an overview of eligibility criteria, discount levels, the application process, how to take the next steps and useful contacts for free, unbiased advice, including the Right to Buy Agent service. It takes into account the major changes made to Right to Buy in April 2012 and July 2014, and the changes to eligibility in May 2015. (26 May 2015)

Welsh Government: £108 million investment in social housing: announces funding for local authorities and Registered Social Landlords to improve people’s homes and ensure they are safe, secure and meet the Welsh Housing Quality Standard (WHQS).(19 May 2015)

Haile v Waltham Forest LBC (Rev 1) [2015] UKSC 34 (Sup Ct): the Supreme Court has reviewed the House of Lords' decision in Din v Wandsworth LBC [1983] 1 AC 657 regarding the date for determining whether a person was intentionally homeless under Part VII of the Housing Act 1996. The Lords had ruled that it is the date on which the person left the accommodation, not the date on which they applied to the local authority for assistance. In this case, the Council decided that H had become homeless intentionally because she voluntarily gave up the hostel accommodation that was (at the time) reasonable for her to continue to occupy. The Council decided that her subsequent pregnancy was irrelevant to the question of her intentional homelessness. The Court of Appeal upheld this decision.
The Supreme Court held, allowing the appeal, that the correct legal test was “whether, in light of the intervening event, it cannot reasonably be said that, but for the applicant’s deliberate conduct, he or she would not have become homeless”. Applying this test, H, by the time of her application,  would have been unable to continue to occupy the hostel (through no fault of her own), her deliberate act that caused the actual loss of that accommodation could no longer taint her current homelessness, which would have occurred in any event. (20 May 2015)

Hotak v Southwark LBC (Rev 1) [2015] UKSC 30 (Sup Ct): these three joined appeals raised a number of issues concerning the duty of local housing authorities towards homeless people who claimed to be "vulnerable", and therefore to have "a priority need" for the provision of housing accommodation under Part VII of the Housing Act 1996. The Supreme Court held, reviewing the case law, that "vulnerability" was a comparative concept. The correct comparator was an ordinary person made homeless, not an ordinary homeless person, still less an ordinary street homeless person, and still even less an ordinary street homeless person within the local authority's district. (13 May 2015)

For commentary on both these cases, see our Alerts: Making a Din: Re-visiting intentional homelessness and Supreme Court re-defines "vulnerability" in homelessness cases

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

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Queen's Speech 2015:  the Queen has outlined the Government’s legislative programme for the next year, on the State Opening of Parliament. Bills of particular interest to local government include:

  • Cities and Local Government Devolution Bill: legislation will be introduced to provide for the devolution of powers to cities with elected metro mayors, helping to build a Northern Powerhouse. The Bill would enable an elected mayor for the combined authority’s area to exercise specified functions and chair the authority; the mayor would also undertake the functions of Police and Crime Commissioner (PCC) for the area. The Bill will remove the statutory limitations on a combined authority's functions (currently these are limited to those on economic development, regeneration, and transport) and enable local authority governance to be streamlined as agreed by councils. See also Devolution section, above.
  • Buses Bill: will enable combined authority areas with directly elected Mayors to be responsible for the running of their local bus services.
  • Housing Bill: legislation will be introduced to support home ownership and give housing association tenants the chance to own their own home. Includes:
    • extending Right to Buy levels of discount to housing association tenants;
    • requiring local authorities to dispose of high-value vacant council houses, which would help fund the Right to Buy extension discounts and the building of more affordable homes in the area;
    • requiring local planning authorities to support custom and self-builders registered in their area in identifying suitable plots of land to build or commission their own home;
    • introducing a statutory register for brownfield land, to help achieve the target of getting Local Development Orders in place on 90% of suitable brownfield sites by 2020; simplify and speed up the neighbourhood planning system, to support communities that seek to meet local housing and other development needs through neighbourhood planning.
  • Education and Adoption Bill: to improve schools and give every child the best start in life, with new powers to take over failing and coasting schools and create more academies. Includes:
    • schools that meet a new coasting definition, having shown a prolonged period of mediocre performance and insufficient pupil progress, will be eligible for be become academies; 
    • giving the Secretary of State a new power to direct one or more named local authorities to make shared arrangements for any or all of their adoption functions.
  • Childcare Bill: includes a requirement that local authorities publish information about the provision of childcare in their area, and other services or facilities which might be of benefit to parents or prospective parents, or children or young persons in their area.
  • Extremism Bill: includes a new Closure Order power for law enforcement and local authorities to close down premises used to support extremism.
  • Energy Bill: includes changing the law in line with the manifesto commitment to give local communities the final say on wind farm applications.
  • Enterprise Bill: will reduce regulation on small businesses so they can create jobs. Includes: 
    • introducing a cap on exit payments made to public sector workers to end six figure payoffs for the best paid public sector workers; 
    • extending the Primary Authority scheme to streamline regulation around the country.
  • Psychoactive Substances Bill: makes it an offence to produce, supply, offer to supply, possess with intent to supply, import or export any substance intended for human consumption that is capable of producing a psychoactive effect. The police and local authorities will be able to issue prohibition notices and prohibition orders so they can adopt a proportionate response to the supply of new psychoactive substances (NPS) in appropriate cases. It would also provide powers to seize and destroy NPS and powers to search persons, premises and vehicles, as well as to enter premises by warrant if necessary. The Bill has been introduced into the Lords and received its 1st reading.
  • Draft Public Service Ombudsman Bill: will reform and modernise the Public Service Ombudsman sector providing a more effective and accessible final tier of complaints redress within the public sector; and absorb the functions of the Parliamentary Ombudsman, the Health Ombudsman, the Local Government Ombudsman and potentially the Housing Ombudsman.

Her Majesty also announced: 

  • changes to the House of Commons' Standing Orders so that decisions affecting England, or England and Wales, can be taken only with the consent of the majority of Members of Parliament representing constituencies in those parts of the UK;
  • early legislation on an in-out referendum on membership of the European Union before the end of 2017;
  • consultation on proposals for a Bill of Rights to replace the Human Rights Act; 
  • Charities (Protection and Social Investment) Bill that will give charities a new power to make social investments (pursuing both a financial and social return), along with clear duties when so doing.

For further details, see the Government's Background briefing notes and the LGA's On the day briefing. ((27 May 2015)

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

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Institute of Economic Affairs: Drinking, fast and slow – Ten years of the Licensing Act: this research report finds that far from provoking a 24-hour drinking culture, the Licensing Act 2003 has removed some of the constraints on where and when people can have a drink, providing the public with greater choice. The relaxation of licensing laws ten years ago benefited consumers and did not result in the disastrous outcomes predicted at the time. Violent crime fell, alcohol consumption fell and rates of binge-drinking fell, particularly amongst young people. (20 May 2015)

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

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Public Health

PHE:  Heatwave Plan for England: this latest Heatwave Plan aims to prepare for, alert people to, and prevent, the major avoidable effects on health during periods of severe heat in England. It recommends a series of steps to reduce the risks to health from prolonged exposure to severe heat for: the NHS, local authorities, social care, and other public agencies; professionals working with people at risk; and individuals, local communities and voluntary groups. (22 May 2015)

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

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Regulatory Services

BRDO: Business Secretary sets out plans for Primary Authority: the new Business Secretary Sajid Javid has announced plans to simplify and extend Primary Authority, which allows a business to get advice on regulation from a single local council or fire service. This advice must then be followed by all other local authorities. (20 May 2015)

Surveillance Camera Commissioner: Letter from the Surveillance Camera Commissioner to local authority chief executives: Tony Porter, the Surveillance Camera Commissioner, has written to all local authority chief executives to remind them of their duty under the Protection of Freedoms Act 2012 to pay due regard to the Surveillance Camera Code of Practice. He asks local authorities to complete the self-assessment tool, to identify quickly where they are meeting the 12 guiding principles in the Code and where they may need to take action to comply. Local authorities should inform him by 30 June 2015 that this has been done. (21 May 2015)

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

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LGO: Investigation into a complaint against County Durham Council: the LGO has recommended that the Council review its process for investigating complaints of serious misconduct against its officers to ensure in future it responds properly, after the buyer of a property complained that a building control officer at the Council had improperly used knowledge gained through his employment for his personal advantage and to the complainant's detriment. The LGO found that the officer had breached the Council's Code of Conduct for Employees by making professional decisions about the plot after he had acquired a personal and financial interest in it, and by failing to declare a possible conflict of interest after making an offer on the plot after visiting it in his official capacity. The Council then failed to properly investigate the complaint of misconduct by an officer, and failed to identify the breaches. The LGO also recommended that the Council pay £250 compensation. (12 May 2015)

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

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