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:

   Anti Social Behaviour    Housing
   Children's Services    Leisure and Recreation
   Communities    Local Government Reform
   Consultation    Procurement
   Efficiency    Public Health
   Employment    Regulatory Services
   Fraud    Safeguarding
   Funding    Standards
   Governance    Tortious Liability
   Health and Social Care  


Anti Social Behaviour

Local Government Lawyer: Lincoln succeeds in first prosecutions for breaching ‘legal highs’ ban: reports that City of Lincoln Council has successfully brought its first prosecutions for breaches of the ‘legal highs’ ban contained in its Public Space Protection Order (PSPO) that was introduced in April. The council was the first in country to introduce a PSPO that bans the consumption of New Psychoactive Substances (NPS) in Lincoln’s city centre. There are a further 13 prosecutions and more than 200 people had been dealt with under the order so far. (29 July 2015) 

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

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Children's Services

Ofsted: The quality of assessment for children in need of help: this thematic survey looks at how well local authorities are carrying out their assessments in early help, children in need and child protection work. It explores factors that drive or limit effectiveness of assessment, drawing on evidence from tracked cases. (4 August 2015)

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

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Cabinet Office: What will rural communities look like in the future?: summarises the Horizon Scanning Programme's discussions with a number of leading industry, academic and voluntary-sector experts on the potential opportunities and challenges that rural communities could face in the future. It finds that rural communities face a range of interconnected opportunities and challenges. Some of these are specific to rural areas, such as dispersed populations and connectivity to a range of services (both physical and virtual). There are also issues that, whilst common to both rural and urban areas, have the potential to affect rural areas differently, such as ageing, population growth and affordable housing. (7 August 2015) 

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

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R (Hall) v Leicestershire CC (Unreported, Admin Ct): H applied for judicial review of  the Council's decision to close a mining museum. She was disabled and a volunteer at the museum. She contended that the closure would mean loss of opportunities for disabled people in the area. She argued that the Council's consultation on options for the museum was unlawful as it failed to consider alternative proposals and a bid from a community group, the Council failed to consider the consultation responses fairly, and it had breached its Public Sector Equality Duty. 
The court held, refusing the application, that the consultation was not unfair. Fairness did not require that every consultation contain alternatives. The withdrawal of financial support from a popular local attraction that added value to residents' quality of life was different from the closure of a library, as the books would still be available elsewhere. The fact that there was no statutory obligation to maintain a museum collection could not be decisive. There was a duty on a local authority to ensure that it had identified every viable option before the risk of losing public access to a permanent collection resulted. The public sector equality duty to have "due regard" to eliminating discrimination was not the same as eliminating discrimination. Closing the museum was not directed at those with vulnerable characteristics, and the Council had had regard to the effects on museum volunteers throughout its policy formulation. Even if the challenge had succeeded, only a declaration would have been granted as the judicial review application had not been made promptly in the context of an urgent timetable for closure. (23 July 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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HM Treasury: Public Sector Efficiency Challenge – Chancellor and Chief Secretary's letter to public sector workers: the Chancellor George Osborne and Chief Secretary to the Treasury Greg Hands have written to public sector workers asking for their ideas on how the Government can do more for less through the Public Sector Efficiency Challenge. The letter invites them to take part in an online survey to share their ideas for doing more while saving public money, ahead of this year’s Spending Review. This follows a similar exercise in 2010 in which people who were working on the front line were asked to suggest ways to improve the public services they provide, using their expertise and knowledge of how those services are actually delivered. The closing date for suggestions is 4 September 2015. (3 August 2015)

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

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HM Treasury: Consultation on a Public Sector Exit Payment Cap: seeks views on a proposal to introduce a £95,000 cap on the total value of exit payments made to an individual in relation to their exit from public sector employment. It would apply to all forms of exit payment available to employees on leaving employment, including cash lump sums, such as redundancy payments; the cost to the employer of funding early access to unreduced pensions for employees where available; and other non-financial benefits, such as additional paid leave. The cap would apply to all entities classified within the central and local government and non-financial public corporation sectors as determined by the ONS for National Account purposes, with a small number of exemptions. The consultation closes on 27 August 2015. (31 July 2015)

Cabinet Office: All public sector employees who work directly with the public to have fluent English: announces that the Government is to introduce new legislation requiring every public sector worker employed in a public-facing role to speak fluent English. Public sector bodies will have to ensure that staff will have at least ‘level 2’ English, depending on the nature of the role and profession. The legislation and a new code of practice will apply to both existing and new employees working in public-facing roles, including police officers, social workers, teaching staff and assistants and local government employees. (2 August 2015)

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

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London Boroughs' Fraud Investigators' Group: Protecting the public purse 2015 – Fighting fraud against London boroughs: this report looks specifically at fraud committed against London local authorities. It finds that while the number of fraud cases councils are dealing with has decreased by about 10%, the value of those cases has increased dramatically, by 46%. Right to buy fraud has seen a huge increase, with detected cases more than doubling to 300 in 14/15, and analysis suggests that at least 3% of right to buy applications in London are fraudulent. A new type of fraud is emerging relating to people who are unable to access welfare benefits or public housing – councils are starting to detect unscrupulous claimants using fake documents to wrongly claim they have children to obtain benefits. The report shows that  local authorities with particularly high levels of non-benefit fraud detection have a strong corporate commitment to the fight against fraud and are often the most proactive and innovative in their approach. (24 July 2015)

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

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LGA: 2014–20 – A guide to EU funding: against the backdrop of reducing domestic finances, councils should think creatively in terms of mixing funding sources and working with other partners in order to deliver projects that benefit localities. However, choosing the right EU fund, funding partners and submitting the right information is a time consuming and precise task. To support councils with this, the LGA has developed guidance covering over 20 funding sources of relevance, including the 2014-20 European Structural and Investment Funds (ESIF). Tailored to councils in England, this information is breaks the funding down into themes, amounts, what it funds, signpost to further information and includes a number of illustrative case studies diagrams and a useful glossary of ESIF terms. (27 July 2015)

CIPFA: Local government funding: this is the final 'Need to Know' evidence review commissioned by the Local Government Knowledge Navigator, a two-year initiative funded by the Economic and Social Research Council, and steered by ESRC, the LGA and SOLACE. This review looks at a range of potential models for local government funding. The objective of this review is to provide an overview and summary of the research and evidence available to underpin and inform the policy debate around funding for local government in England. The review considers four sources of local government funding: council tax; central government grants; business rates; and fees and charges. (1 July 2015)

London Councils: Grants Programme consultation 2017 - 2021: seeks views on whether the programme should continue beyond March 2017 and, if it does, what the programme's priorities should be from 1 April 2017. The consultation closes on 2 October 2015. (24 July 2015)

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

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CIPFA: Delivering good governance in local government: the CIPFA/SOLACE Joint Working Group on Good Governance in Local Government is consulting on a revised Framework that forms a standard for good governance and sets out a shared understanding of what constitutes good governance across local government. The revised Framework builds on the core principles and sub-principles from the International Framework: Good Governance in the Public Sector and translates them into a series of expected behaviours and outcomes that demonstrate good governance in practice. The consultation closes on 28 September 2015. (24 July 2015)

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Health and Social Care

LGA: Dementia friendly communities – Guidance for councils: discusses the important role of councils in supporting people with dementia by creating local dementia friendly communities. It includes case studies that demonstrate how many councils are already working in partnership with their local communities to develop innovative ways to enable people with dementia to take part in everyday activities and retain their independence for as long as they are able. (5 August 2015)

Care and Support (Eligibility) (Wales) Regulations 2015 (SI 2015/1578 (W.187)): these regulations, which come into force in Wales on 6 April 2016, set out the test which a Welsh local authority must apply to determine whether or not an individual with needs identified in an assessment under s.19, 21 or 24 of the Social Services and Well-being (Wales) Act 2014 is entitled to have those needs met by a local authority. They set out the eligibility criteria for adults, for children and for carers. Where needs do meet these eligibility criteria, s.32 requires a local authority to consider what could be done to meet those needs and whether it should impose a charge in accordance with Part 5 of the Act. (24 July 2015)

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

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DCLG: Tackling rogue landlords and improving the private rental sector: this technical discussion paper seeks views on proposals to tackle rogue landlords and letting agents, including a blacklist of rogue landlords and letting agents, tougher penalties for the worst offenders, extending rent repayment orders and introducing fixed penalty notices. It also invites views on tackling the problem of abandonment in the sector, where a tenant disappears, leaving the landlord uncertain over their right to possess. The consultation closes on 27 August 2015. (3 August 2015)

Kensington & Chelsea RLBC v Lessees of 1-124 Pond House [2015] UKUT 395 (UT Lands): the Council asked the Tribunal to determine a number of issues about service charges for proposed works of maintenance and repair to leasehold properties, and in particular, whether the Council had complied with its obligation to consult the lessees under s.20 of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements) (England) Regulations 2003. The Council was proposing to enter into four framework agreements with construction companies, to facilitate the delivery of £90m - £130m of repairs maintenance and improvement works to its housing stock. The Council’s lessees were consulted on the entry into the framework agreements under Sch.2 to the Consultation Regulations. It contended that these framework agreements were qualifying long term agreements (QLTAs) so that the call-off contracts under the frameworks were subject to the less extensive consultation requirements of Sch.3 to the 2003 Regulations.
The court held that multi-party framework agreements to be entered into by or on behalf of a public authority were QLTAs to which s.20 of the Landlord and Tenant Act 1985 applied. The framework agreements in this case identified the works to be carried out with sufficient particularity to satisfy the test that the relevant costs were incurred in carrying out those works "under" the agreement. This was shown by the terms of the agreement itself, and reg.19(4) of the Public Contracts Regulations 2006 which provided that when awarding a specific contract on the basis of a Framework Agreement, neither the contracting authority nor the economic operator could include terms that were substantially amended from the terms laid down in the Framework Agreement. This meant that the framework agreement and the specific contract could not be regarded in isolation from each other. (29 June 2015)

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

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Leisure and Recreation

DBIS: A new strategy for sport: seeks views on the Government's development of a new strategy for sport, based on 10 broad themes. The new strategy will aim to increase participation, improve health and social benefits, and ensure that funding goes to those who can best deliver results. The consultation closes on 2 October 2015. (31 July 2015)

DCMS: Libraries Taskforce secures further funding to roll out free wifi in public libraries across England: invites local authorities to apply through the Arts Council application portal for a share of £7.1m funding to enable libraries to have free wifi provision. (28 July 2015)

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

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Local Government Reform

Welsh Government: Reforming local government – Power to local people: Consultation summary of responses: summarises responses to the February 2015 White paper that proposed the major reform of Welsh local government, based on activist Councils, engaged in delivering modern, accessible, high quality public services with their local communities. The responses highlighted the need to reduce complexity in local government  and called for reforms to cover the whole public sector or political sphere. The Welsh Government is now considering the responses, and will consult on a new draft Local Government Bill this Autumn. (July 2015)

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

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CCS: Procurement Policy Note 12/15: Availability of procurement procedures (decision tree): this PPN  note contains a new Decision Tree and guidance on the choice of procurement procedure resulting from the Public Contracts Regulations 2015. It also sets out the general policy expectations on procurement that continue to apply. (30 July 2015)

CCS:  Procurement Policy Note 13/15: Increasing the transparency of contract information: provides guidance on how to implement the transparency principles published in March 2015. It aims to increase the type and accessibility of contract and procurement data to the public. It applies to all central government departments including their executive agencies and NDPBs. It applies to contracts advertised on or after 1 September 2015. (3 August 2015)

CCS: Short form terms and conditions for goods and services: the Crown Commercial Service has published updated terms and conditions for general goods and services contracts with a value below the procurement thresholds set out in the Public Contracts Regulations 2006. They are designed for small and medium size businesses to provide ‘light touch’ contract terms for low value procurements. (31 July 2015)

CMA: Unfair contract terms guidance: updated guidance to help businesses understand what makes terms and notices unfair, what risks they can face from using unfair wording and top tips on how to ensure terms and notices are fair and clear. The guidance has been revised to take into account changes to the law under the Consumer Rights Act 2015, which will come into force in October 2015.
There is also a flowchart and a glossary of unfair contract terms. (31 July 2015)

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

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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: this updated document sets out the final allocations to local authorities to commission children’s 0-5 public health services in the six-month period from 1 October 2015 to 31 March 2016. Final 2016/17 allocations will be dependent on the amount of funding announced for public health in the 2015 Spending Review and on the fair shares formula developed following advice from the Advisory Committee on Resource Allocation (ACRA).
See also Financial Factsheet 4. (27 July 2015)

DH: Local authority public health allocations 2015/16 – In-year savings: seeks views on technical options for implementing the Government's proposal to reduce the 2015/16 Public Health Grant to local authorities by £200m. The principal question relates to how each local authority's contribution to the saving will be calculated – the options include a standard, flat rate of 6.2 per cent applied to all, or a process that differentiates between local authorities in different circumstances, applying varied percentages that still total £200m. The consultation closes on 28 August 2015. (27 July 2015)

PHE: Who we are and what we do – Annual Plan 2015/16: sets out PHE's core functions and outlines its key steps and actions for the year ahead. (31 July 2015)

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

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Regulatory Services

DBIS: Devolving Sunday trading rules: seeks views on proposals to devolve Sunday trading rules to local areas, such as cities run by elected mayors and/or local authorities, so that they can set their own restrictions on shop trading hours. It sets out two options: devolving powers to local areas through devolution deals, and / or devolving powers to unitary authorities and district councils more generally across England and Wales. The proposals do not affect the rules relating to Sunday trading on Easter Sunday nor trading on Christmas Day. The consultation closes on 16 September 2015. (5 August 2015)

Littlewood v Powys CC [2015] EWHC 2125 (Admin) (Admin Ct): L, estate agents, applied for judicial review of a decision of the Council made in connection with the exercise of its regulatory powers under the Estate Agents Act 1979. The Council's procedure for making an order prohibiting a person from doing any estate agency work under s.3 of the Act had two stages: an investigatory stage and an adjudication stage. The Council decided to make such a prohibition order against L, and L gave notice that they wished to make representations orally as to why the order should not be made. The Council propose that L's oral representations would be heard directly, face to face, by the investigator, and that the adjudicator would be supplied with an audio recording and verbatim transcript of the oral representations. L contended that they were permitted to make oral representations directly and face to face to the adjudicator. The Council argued that on its proper construction the Act did not require the adjudicator to hear oral representations face to face, and that its proposed procedure was permissible and lawful.
The court held, granting the application, that the Council's procedure for considering whether or not to make prohibition orders in relation to L did not comply with the requirements of the Act and was unlawful. If the Council continued to delegate the making of the decisions to an adjudicator, then under Sch.2, that adjudicator had to conduct the hearing of oral representations in person and face to face. (23 July 2015)

Kent v Arun DC; Animal Protection Agency (Intervener) [2015] EWHC 2295 (Admin) (Admin Ct): the claimants, K, were members of two reptile and amphibian collectors' societies. They applied for judicial review of the Council's decision to cancel a breeders' meeting scheduled to take place at a racecourse. The Council had advised the racecourse owners FPR to cancel the meeting as it considered that there was a substantial risk of the unlawful sale of live animals taking place at the event, in breach of the Pet Animals Act 1951.
The court held, refusing the application, that the Council had a duty to do what it properly could to prevent the commission of offences by legitimate means. Warning FPR that its premises might be hosting an event at which unlawful activity might take place was an entirely proper course to have taken, and it had acted reasonably and properly in fearing that there was a substantial risk that unlawful activity might occur. The Council had not "procured" the cancellation –  FPR had taken the decision to cancel. If that decision was wrong then K was entitled to bring a private law action against FPR.
The court declined the intervener's request for clarification of s.2 of the Pet Animals Act 1951 so that enforcement, by criminal sanction, would be more obviously and readily available. The judge stated that while there was a need for greater clarification, it was not for the court to determine some act to be criminal which might not currently be in breach of the criminal law, nor to determine what future conduct might amount to the commission of a criminal offence. (31 July 2015)

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

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Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015 (SI 2015/1466 (W.160)): these regulations, which come into force in Wales on 6 April 2016, provide for the functions and procedures of Safeguarding Children Boards and Safeguarding Adults Boards that are established under s.134 of the Social Services and Well-being (Wales) Act 2014. (1 July 2015)

Adult Protection and Support Orders (Authorised Officer) (Wales) Regulations 2015 (SI 2015/1465 (W.159)): these regulations, which come into force in Wales on 6 April 2016, set out restrictions that apply to a person authorised by a local authority to apply for an adult protection and support order under s.127 of the Social Services and Well-being (Wales) Act 2014. (1 July 2015)

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

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Solace: Local public services senior managers: Code of Ethics: SOLACE has issued a draft overarching statement of ethics that is based upon behaviours and focuses 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 4 September 2015. (4 August 2015)

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

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Tortious Liability

Chesterton Commercial (Oxon) Ltd v Oxfordshire CC [2015] EWHC 2020 (Ch) (Ch D): CC, a development company, claimed damages against the Council for breach of statutory duty and negligent misstatement. The claim arose out of CC's purchase of a site that included some parking spaces. The vendor made a statutory declaration that the parking spaces were controlled by the vendor and were not used by the public, and the Council's Highway Plan showed that the land was not maintainable as a highway. CC wished to develop the site for residential housing with parking, and to sell off the remaining parking spaces. The Council's response to the pre-contract enquiries stated that the land comprising the parking spaces was not a highway maintained at public expense. It did not disclose that there was an on-going investigation being conducted by the Council into the status of that land. The council later concluded that the land was, and always had been, highway. CC claimed damages of £400,000 for the difference between the actual price paid for the properties and their value without private parking, and also £150,000 for professional fees incurred in trying to mitigate its loss by applying for a stopping up order. The Council submitted that the statutory duties under s.36 of the Highways Act 1980 gave rise to no private cause of action and that it owed CC no independent duty of care.
The court held that the Council owed CC a duty of care at common law regarding its replies to CC's enquiries. The Council's role was to answer the search enquiries accurately but it did not do so. The Council was under a duty to keep the statutory map up to date but it had not done so - if it had, the map would have shown that there was an on-going investigation. The local authority knew that a purchaser would inevitably want to know if the land was private or highway maintainable at public expense. The conditions for the creation of a duty of care in tort were present, as were the conditions for liability for misstatement. It was entirely foreseeable by the Council that if the result of the search was wrong, a purchaser might go ahead at a higher price in the belief that the parking spaces were private land. The court assessed CC's loss as the difference in value at the completion date, namely £240,000; it also awarded CC £150,000 for its fees in mitigating its losses. (22 July 2015)
The judgment is available on Lawtel (subscription required).

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

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