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 previoustwo weeks.


Claire Booth

Claire Booth

Professional Support Lawyer

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

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

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

   Adult Social Services    Housing
   Anti Social Behaviour    Maladministration
   Children's Services    Negligence
   Communities    Powers and Duties
   Delivery of Services    Public Health
   Education    Regulatory Services
   Emergency Planning    Transport
   Finance    Wales
   Health and Social Care


Adult Social Services

Bournemouth BC v PS [2015] EWCOP 39 (CoP): the court was asked to decide whether the package of care provided to B was in his best interests and whether that package amounted to a deprivation of liberty under Art.5 ECHR. B suffered from autistic spectrum disorder and mild learning disability and had exhibited challenging and dangerous behaviour. He lived in his own home and was supported by staff at all times.
The court declared that B was not being deprived of his liberty by virtue of the care package which the judge approved as being in his best interests. On the facts, B was not detained by the State. He was not under continuous supervision and he was afforded appreciable privacy. He was free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative, but up to that point B was a free man. (11 June 2015)

Balaratnam v Rotherham MBC (Unreported, QBD): the court dismissed claims by a nursing home operator against the Council for breaches of statutory duties under the Care Standards Act 2000. The court held that the claims were correctly struck out on the principles of res judicata as the matter had already been litigated on substantially the same facts. (18 June 2015)
The judgment is available on Lawtel (subscription required).

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

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Anti Social Behaviour

Law Commission: Simplification of criminal law – Public nuisance and outraging public decency: this report recommends reform of the common law offences of public nuisance and outraging public decency. It reviews the current law and looks at options for reform. It concludes that there is benefit in the continued existence of offences of public nuisance and of outraging public decency, but recommends that these offences be restated in statute. (25 June 2015)

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

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Children's Services

LGA: Review of current arrangements for the operation of Local Safeguarding Children Boards (LSCB): this research suggests that partnership work by councils, police, schools and other key agencies to protect vulnerable children is at risk due to inequitable funding burdens and confused expectations around the role safeguarding boards should play. The study, carried out by independent researchers from Research in Practice, found many of these boards had made significant progress in building a joint approach to safeguarding in their local areas. However, in many cases this work was believed to be hindered by Ofsted regimes and funding arrangements. (15 June 2015)

Ofsted: Concerns about children – Guidance for all Ofsted staff: this guidance applies to those cases brought to Ofsted's attention where a child or children may be suffering or likely to suffer physical, emotional or sexual harm or neglect. It sets out how to respond to concerns in both regulated and unregulated provision. (19 June 2015)

Ofsted: Disclosure and Barring Service – Guidance for children's social care providers: explains how Ofsted’s inspectors will evaluate providers’ and managers’ administration and use of the DBS checks and certificates. It includes information about online status checks. (19 June 2015)

DfE: £4.5 million to end delays for children awaiting adoption: announces funding to help councils set up regional adoption agencies. (20 June 2015)

PM's Office: PM announces new taskforce to transform child protection: the Prime Minister David Cameron has announced a new Child Protection Taskforce to drive forward fundamental reforms to protect the most vulnerable children by: extending and accelerating reforms to the quality of children’s social work practice and leadership; promoting innovative models of delivery; and overhauling the way that police, social services and other agencies work together locally. Chaired by Education Secretary Nicky Morgan, the taskforce will be responsible for leading improvements across police, social services and other agencies, focusing on transforming social work and children’s services and improving inspection. It will complement the Home Secretary’s existing work on tackling child sexual exploitation. (24 June 2015)

Safeguarding Boards (General) (Wales) Regulations 2015 (SI 2015/1357 (W.131)): these regulations, which come into force on 6 April 2016, provide for Safeguarding Children Boards and Safeguarding Adults Boards established under s.134 of the Social Services and Well-being (Wales) Act 2014. They set out the areas for which there are to be Safeguarding Boards, the lead partners, and information and reporting requirements. (4 June 2015)

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

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Cabinet Office: Social action – Harnessing the potential: update: this updated discussion paper sets out how social action complements public services and empowers communities, and explains how government supports it. It looks at how encouraging and enabling social action is part of the Government’s vision for a ‘bigger, stronger society’. It provides an update on government programmes to develop its reach and impact. (26 June 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

NAO: Outcome-based payment schemes – Government’s use of payment by results: this report examines the Government's growing portfolio of payment by results (PbR) schemes where payment depends, at least in part, on the provider achieving outcomes specified by the commissioner, including welfare to work, family support, offender rehabilitation, and international aid. It finds that without a  common source of shared expertise and a strong evidence base, PbR schemes may be poorly designed and implemented, and commissioners are in danger of reinventing the wheel for each new scheme. It concludes that while PbR may offer value for money, these contracts are hard to get right, which generates risk and cost for commissioners. If PbR can deliver benefits such as innovative solutions to intractable problems, then the increased risk and cost may be justified, but this requires credible evidence. Without such evidence, commissioners may be using this mechanism in circumstances to which it is ill-suited, to the detriment of value for money. (19 June 2015)

Reform: How to run a country – The 2015 Spending Review: the think tank Reform has published analyses on each of the main areas of public spending as part of their recommendations for the 2015 Spending Review. This full report pulls together the findings of the separate papers that focused on health and social care; education; working age welfare; pensions; and crime and policing. It recommends that the Government should adopt a new policymaking framework for public services based on three clear principles: Wellbeing; Sustainability; and Inclusion. Wherever possible, public service reform should make greater use of choice and competition. The Government should seek to exploit technology to redesign public services around the wellbeing of users, with a clear ethical and legal framework for data sharing. (23 June 2015)

LGA: Future funding outlook for councils 2019/20 – Interim 2015 update: the LGA's latest annual report sets out the impact in the local government sector of future funding cuts and unavoidable growth pressures on the resources it will have available for services between now and the end of this decade. It warns that councils will need to make further significant savings next year, equivalent to 12% of their total budgets. Using the most recent Office for Budget Responsibility forecasts, LGA analysis predicts councils will see funding for local services reduced by a further 11% in 2017/18 and 4% in 2018/19 before increasing by 7% in 2019/20. It predicts this will leave councils facing a funding gap of £9.5bn by the end of the decade. (26 June 2015)

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

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EFA: Section 251 outturn 2014 to 2015 – Guidance for local authorities: Local authorities are required under s.251 of the Apprenticeships, Skills, Children and Learning Act 2009 to prepare and submit an education and children and young people’s services outturn statement to the Secretary of State for Education. DfE has published information to support local authorities in completing their Section 251 outturn for 2014 to 2015. The outturn statement applies to the period from 1 April 2014 to 31 March 2015 and must be submitted by 25 August 2015. (25 June 2015)

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

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Emergency Planning

LGIU: Project resilience – An outline for future research: "resilience" defines the capacity of an area to cope in the face of emergencies such as floods, epidemics and earthquakes, as well as to adapt to stresses and strains like long-term demographic change, slow economic growth and poor access to housing or infrastructure. This paper puts forward the case for an understanding of resilience that takes a holistic view of an area with all the complexity and interconnected challenges it may contain. It argues that democratic collaboration between state, civil society and citizens is the most effective way to bring about lasting, meaningful change and create resilient places that are able to respond to concurrent changing circumstances and emergencies. The paper advances five theses about resilience in local government that it intends to investigate over the coming months. (9 June 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

Healthwatch: 'State of Support' – Local Healthwatch finances: this report outlines the funding that each local Healthwatch has received to deliver their statutory activities. The findings show that while the reasons for funding reductions are often not clear, the most significant funding reductions include those in areas where health and care budgets and services are under pressure. Healthwatch is concerned that in certain areas health and social consumers could be left without a strong voice and it has written to a number of councils where significant reductions in local Healthwatch funding have been reported. It urges those councils that have decided to impose severe cuts to outline why they have made this decision and how they will ensure the public  are provided with the voice they need to influence the big decisions around how local health and care services are delivered. (18 June 2015) 

LGA: Creating a better care system: this report by Ernst & Young, commissioned by the LGA and based on sector views, proposes to the Government to use next month's Budget to divert £1.3bn into a transformation fund each year until 2019/20, equalling a fund of £5.2bn by the end of the decade, to develop a new health and social care system. It argues that a transformation fund would help local government leaders to protect the future of social care for the elderly and disabled by investing resources into a system which focuses on keeping people healthy and out of hospital, rather than putting the majority of money into providing care for serious conditions. Local authorities and health partners recognise that social care must be properly funded to enable councils to alleviate pressure on health services. (24 June 2015)

LGA: Ageing – The silver lining: The opportunities and challenges of an ageing society for local government: this report by the LGA's Task and Finish Group on Ageing explores the possible role of local government with respect to an ageing population within the context of on-going austerity, and challenges the commonly-held belief that an ageing population is a burden. The LGA will be considering the findings of the report in the development of its priorities, policy positioning and work plan recommendations that will be put forward to the Community Wellbeing Board in September 2015. (25 June 2015)

Care and Support (Population Assessments) (Wales) Regulations 2015 (SI 2015/1367 (W.135)): these regulations, which come into force in Wales on 6 April 2016, provide for the carrying out of population assessments under s.14(1) of the Social Services and Well-being (Wales) Act 2014. This section requires local authorities and Local Health Boards to assess the extent to which there are people in the local authority’s area who need care and support and the extent to which there are carers in the area who need support. (5 June 2015)

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

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ResPublica: Devo home – A double devolution of housing to people and places: this report sets out a radical vision of double devolution to tackle the housing crisis. It argues that the only way to plug the shortage of affordable housing is through the creation of new local institutions – Local Place Partnerships – that devolve housing to people and places. (17 June 2015)

Smith Institute: Working together – thinking alike: What do councils and local enterprise partnerships expect from housing associations?: this report highlights the fast-changing relationship between local authorities and housing associations. Welfare reform, reductions in housing grant and plans to extend Right to Buy mean historic relationships must change if they are to continue to effectively support their communities and build affordable homes. The report sets out recommendations on how to strengthen the relationship and build new ones with LEPs. (22 June 2015)

NAO: Disposal of public land for new homes: this report critically examines the previous Government’s progress in meeting its target “to release enough land to build as many as 100,000 new, much-needed, homes and support as many as 25,000 jobs by 2015”. It finds that the programme did not collect information on the amount of money raised or how many homes have actually been built. There is now a new process for land disposals from 2015-16 with new targets for central government and associated bodies to deliver at least £5bn of land and property sales between 2015 and 2020 and an ambition to release land for up to 150,000 homes in the same period. It recommends that in taking forward this new target, DCLG and the HCA should review and share the lessons from this programme, including the need for the Department to clarify how it intends to measure progress through sales proceeds or number of potential homes; and for someone to take responsibility for monitoring what happens to land after disposal within the target period. (24 June 2015)

DCLG: Housing associations can be 'champions of aspiration': the Housing Minister Brandon Lewis is calling on housing associations to support the Government’s plans to extend the Right to Buy so as to give housing association tenants the same home ownership opportunities as council tenants. (25 June 2015)

R (Alemi) v Westminster City Council [2015] EWHC 1765 (Admin) (Admin Ct): A applied for judicial review of the Council's Housing Allocation Scheme as it applied to persons who had become unintentionally homeless. A contended that the Scheme unlawfully breached the duty under s.166A(3) of the Housing Act 1996 because it suspended an applicant's ability to bid for social housing until 12 months had elapsed following acceptance as an unintentionally homeless eligible person in priority need.
The court held, granting the application, that s.166A(3) was about the 'allocation' of social housing to statutorily defined groups which must be given reasonable preference. The differentiation which was permitted by the legislation was restricted to adjusting the relative priority of sub-groups by reference to features which did nonetheless afford them some opportunity to be allocated social housing within the LHA's current cycle, however remote that possibility might be. It did not remove them altogether from the potential of being allocated social housing. Although A and her sub-class undoubtedly did have tangible differences with (and advantages over) those who were not accepted onto the Council's register, nonetheless for 12 months those differences/advantages did not amount to a reasonable preference in the allocation of social housing. The Scheme carved out a whole sub-group which was altogether excluded from the potential of being allocated social housing for 12 months. They had no preference. Part VI of the Act did not permit the removal of a whole sub-group from a group which s.166A(3) required be given reasonable preference in the allocation of social housing, when that sub-group was not defined by reference to differentiating features related to the allocation of housing, but applied a simple time bar to all who otherwise qualified. The Scheme was unlawful. (22 June 2015)

R (Faizi) v Brent LBC (Unreported, QBD): F applied for leave to apply for judicial review of the Council's refusal of accommodation pending an appeal. After she rejected an offer of alternative accommodation, the Council considered that its duty to house her had ceased, and that decision was confirmed on review. The Council declined to provide her with accommodation pending the outcome of her appeal against that review. F contended that once the Council had accepted that it had a housing duty under s.193 of the Housing Act 1996, it remained subject to that duty until her appeal rights had been exhausted, because the duty either revived or continued.
The court held, refusing the application, that s.193(5) made clear that from the moment that an offer of suitable accommodation was refused, the duty to provide accommodation ceased. The 1996 Act contained express powers enabling a local authority to provide accommodation pending a decision, review or appeal, but there was no express duty. (17 June 2015)
The judgment is available on Lawtel (subscription required).

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

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NAO: Public service markets – Putting things right when they go wrong: this report scrutinises the complaints and redress system in the public sector. It comments that if the Government took the power of redress to improve public services seriously, it would recognise that the present system is incoherent and dissatisfying to users and would show urgency in reforming and rationalising the system. The NAO finds that consumers find the system confusing, that they have to deal with many different organisations, and that they have a low awareness of which ones to turn to. Public service organisations do not make enough use of complaints to improve services and there are serious impediments to doing so. There is no standard approach to recording or reporting on complaints. Despite some examples of good practice, data sharing is irregular and informal. Its recommendations include that the Cabinet Office should nominate an authority within government to manage reforms to the complaints and redress system. (17 June 2015)

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

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RXDX v Northampton BC [2015] EWHC 1677 (Admin) (Admin Ct): X brought a claim against the Council for damages for personal injuries sustained when, aged 6 years, he almost drowned in the Council's leisure centre pool. He suffered irreversible brain damage from lack of oxygen. Medical experts agreed that it was likely that X had been under water for more than two minutes 40 seconds. X alleged that the Council was vicariously liable for the lifeguards' failure to use reasonable professional skill and care, so as to procure his safety, in essence by failing to supervise his use of the pool and exercise appropriate vigilance over him at all times.
The court held that the lifeguards had failed in their duty of care to X by failing to identify him as a child at risk and to continue to scan the water and pool bottom to satisfy themselves that he was not in difficulties after he entered the pool. There was no evidence that the lifeguards had applied the HSC's good practice guidance for public pools, and any material breach of these obligations constituted negligence at common law. Had the lifeguards carried out their duty to a proper level of care, they ought to have rescued X within 30 seconds of the water beginning to enter his lungs. There was therefore a causal link between that breach of duty and the injuries X had sustained and he was entitled to judgment accordingly. (11 June 2015)

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

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Powers and Duties

Home Office: Prevent Duty – New burdens assessment: the Counter Terrorism and Security Act 2015 requires specified authorities, including local authorities, in the exercise of their functions to have due regard to the need to prevent people being drawn into terrorism from 1 July 2015 – the "Prevent Duty". The Home Office has undertaken an assessment of the financial costs to local authorities of implementing the Prevent Duty and has concluded that £10,000 should be provided to non-priority Prevent areas. (26 June 2015)

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

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Public Health

LGA: Beyond fighting fires – The role of the fire and rescue service in improving the public's health: these case studies explore FRAs' ability to provide critical interventions, promote health messages and refer to appropriate services. (11 June 2015)

DH: Shaping and securing the future children’s public health workforce – A briefing for LAs on the role of Health Education England and Local Education and Training Boards: responsibility for the planning and commissioning of public health services for children aged 0 to 5 will transfer from the NHS to local authorities in October 2015.This factsheet summarises the relationship between Health Education England and local authorities in relation to workforce planning for the Healthy Child Programme 0-5 years. (25 June 2015)

DH: Improving outcomes and supporting transparency – Updates to PHOF: Summary of changes to technical specifications of public health indicators: the Public Health Outcomes Framework (PHOF) outlines the desired outcomes for public health and how they will be measured. This document summarises the changes that have been made to the PHOF technical specifications since the last publication in December 2014. These changes include new indicators that have been introduced, and changes that have been made to existing indicators. (25 June 2015)

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

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Regulatory Services

LGA: Gambling regulation – Councillor handbook: this updated document outlines licensing authorities' responsibilities for gambling in their areas, and summarises recent changes to the social responsibility requirements binding on gambling operators. These changes will have significant implications for both operators and licensing authorities, and are intended in part to help licensing authorities develop the localised approaches to regulation that are common under the Licensing Act 2003, but have been less so under the Gambling Act 2005. (26 June 2015)

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

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Passenger Transport Executive Group: Small but mighty transport schemes: this report shows that smaller transport schemes can achieve outstanding value for money in boosting growth and contribute towards other wide ranging social and environmental public policy benefits. it reviews ten examples of small scale transport schemes that  range from intelligent bus priority, to journey planning advice, cycle hire and new bus links. The report shows that small schemes can achieve outstanding value for money by: making use of local knowledge; being responsive to changing circumstances; and by being effectively targeted. Small schemes can also help provide proof of concept for novel interventions. (24 June 2015)

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

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Welsh Government: The future of local government in Wales: this Written Statement by the Public Services Minister Leighton Andrews announces the Welsh Government’s preference for the future configuration of local authorities in Wales. The proposals suggest eight or nine local authorities, with two options for North Wales. He states that the Welsh Government will consult on a draft Mergers and Reform Bill in the autumn that will include further, formal consultation on the proposals for local authority mergers.  It will also provide a formal opportunity for consultation on the Welsh Government’s preference for the future configuration of local government in Wales. (17 June 2015)

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

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