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.

02/10/2015

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:

  
   Adult Social Services    Highways
   Anti Social Behaviour    Housing
   Asylum and Refugees    Information Technology
   Children's Services    Ports and Harbours
   Devolution    Public Health
   Education    Regulatory Services
   Finance    Transport
   Fire Authorities

  

Adult Social Services

LGO: Counting the cost of care – The council’s role in informing public choices about care homes: this focus report examines whether families across England are paying more than they need to because they have not been given comprehensive information about the costs of care available in their area. It provides guidance for councils to make sure their procedures do not put people at risk of paying too much and offers questions for councillors to help scrutinise their authorities’ policies and procedures. The report includes examples of cases where councils provide confusing or incorrect advice, do not offer potential residents a genuine choice of affordable care home or have any affordable homes available. (24 September 2015)

NICE: Home care – Delivering personal care and practical support to older people living in their own homes (NG21): this guideline covers the planning and delivery of person-centred care for older people living in their own homes (home care or domiciliary care). It aims to promote older people's independence and to ensure safe and consistently high quality home care services. It recommends that services support the aspirations, goals and priorities of each person, and that they and their carers are treated with empathy, courtesy and respect. Home care visits shorter than half an hour should only be made if the home care worker is known to the person and the visit is part of a wider package of support and the purpose of the visit can be properly undertaken in that time. The guideline also highlights the importance of prioritising continuity of care by ensuring the person has the same home care worker or workers so that they can become familiar and build a relationship.
NICE has also published the draft NICE home care quality standard for consultation. The closing date for comments is 8 October 2015. (21 September 2015)

Carers Trust: A charge on caring?: this report analyses the use and impact of charges by councils providing support to unpaid carers. Following concerns that a number of local authorities had started to introduce charges to unpaid carers for the support they provide to help them in their caring role, contrary to the Care Act statutory guidance, the Trust sent an FOI request to all social services councils in England to establish how many councils are using charges, how are they are being applied, and the impact they are having on carers. (18 September 2015)

LGA: The Care Act 2014 – How do you know your council is successfully embedding the Care Act?: this revised briefing document for councillors and other senior local leaders provides a number of timely key messages to ensure that councils successfully realise the aspirations of the Care Act 2014 in their local change programmes. It recaps the Act's main features and duties, sets out the implications for councils, and provides a number of questions for decision-makers and scrutinisers to consider. The document has been fully updated to reflect learning from implementation of Part 1 of the Act, the postponement of the cap on care costs, and to identify key on-going challenges to implementation. (28 September 2015)

ADASS: An analysis of social care activity in prisons and approved premises: the Care Act 2014 "clarified" local authority responsibilities for people living in prisons and approved premises. This report describes what happened in the first three months from when the legislation was implemented in April 2015. it sets out the findings of a survey of all local authorities in England with either a prison or approved premises. (22 September 2015)

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

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Anti Social Behaviour

Bristol City Council v Hill [2015] EW Misc B35: the Deputy District Judge granted the Council's application for H's committal to prison. The Council had obtained an injunction forbidding H from sitting, loitering or begging in specified areas of the city. H breached the injunction on a number of occasions. The judge held that it was the quantity and persistent nature of the breaches which made the breach of the order so serious rather than the individual nature of each breach. H appeared to have deliberately ignored the terms of the order and all attempts to assist him mend his ways. H showed no signs of being prepared to engage with the authorities or those that might be able to help him. In the circumstances a community order would not be appropriate. He sentenced H to three months' imprisonment for each breach, to run concurrently. (23 September 2015)

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

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Asylum and Refugees

Welsh Government: Refugee and Asylum Seeker Delivery Plan: seeks views on revising the 2011-2014 Refugee and Asylum Seeker Action Plan which was a commitment in the Refugee Inclusion Strategy 2008. The updated Delivery Plan will identify and address areas of discrimination, improve access to public services and tackle social stigmatisation, harassment and bullying for asylum seekers and refugees in Wales. The consultation closes on 10 December 2015. (17 September 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

DfE: Childcare Bill – Policy statement: provides further details on the extended entitlement to free childcare for parents of children aged three and four. The current entitlement to free early education for all three- and four-year-olds and two-year-olds who meet the eligibility criteria, is delivered by a local authority-led delivery model in which providers are funded directly by Government. The new extended entitlement provides an opportunity to work with local authorities to look at how improvements can be made to how the extended free entitlement is delivered. The Government is to look at how it can support local authorities in drawing up agreements between themselves and childcare providers (perhaps by publishing a national model agreement). In addition, it is considering what can be done to smooth out issues around payment arrangements between local authorities and providers. (2 October 2015)

Williams v Hackney LBC [2015] EWHC 2629 (QB) (QBD): the judge in this case highlighted how it illustrated the challenges that faced children, parents, public authorities, and the courts when concerns were raised about the safety and welfare of children.
W claimed damages for misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of their rights under Art.8 ECHR, after the Council moved all their eight children into foster care and kept them their for two months after a Police Protection Order (PPO) had expired. This situation arose after one child, who was arrested for shoplifting, told the police that he had been beaten by his father with a belt; the police visited the family home and were of the opinion that it was not in a fit state to be accommodation for the children, so alerted the Council and issued a PPO. W signed a "Safeguarding Agreement" under s.20 of the Children Act 1989 consenting to the foster placements. W were eventually charged with various offences relating to their treatment of their children but the prosecution offered no evidence and a not guilty verdict was entered. W claimed that the Council had no power to keep the children in foster care after the PPO expired, and that there was no valid consent to the fostering arrangements.
The court held that the Council was justified in considering that the allegations were evidence of a risk to the safety of the children which it could not ignore in determining whether to exercise its statutory powers. However, bearing in mind the threatening circumstances in which the "Safeguarding Agreement" was offered to W, its form had a number of defects: W were not advised of their right to take legal advice nor were they told of the effect of the agreement. The agreement contained only a list of obligations being imposed on W, with no reference to any of the Council's obligations; in particular, it did not mention W's legal right to withdraw their consent and require the return of their children. The circumstances in which the agreement was signed, combined with the inadequacies of the information conveyed to W, amounted to "compulsion in disguise" so there was no valid consent obtained from W to give the Council authority to accommodate the children under s.20. The claim in negligence failed: although the Council was acting outside its statutory powers to interfere with W's family life, it did so in the mistaken belief that it had sufficient consent from W under s.20. Even if there had been a breach of a duty of care, W had failed to show any actionable damage caused by that breach. The claim in misfeasance was also rejected. Regarding liability under the Human Rights Act, while the initial removal of the children from their home was lawful and a proportionate and necessary response to the need to safeguard them from harm, the Council's actions in retaining the children away from their parents after the expiry of the 72 hour period were unlawful, and therefore the interference with the parents' Art.8 rights was also unlawful. The court awarded £10,000 to each parent for the unlawful interference with their human rights. (17 September 2015)

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

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Devolution

HM Treasury: Sheffield City Region devolution agreement: the Government has confirmed the Sheffield devolution deal that builds on earlier Growth Deals and gives the area more freedom to tailor services to local needs, support local businesses and create jobs. As part of the deal, there will be an elected Mayor for the region who will oversee a range of powers devolved from government, including responsibility over transport budgets, franchised bus services and strategic planning. The deal also includes additional devolved powers for the area’s Combined Authority, including a new gain share deal within an envelope of £30m a year for 30 years – giving Sheffield the power to use new funding to boost local growth and invest in local manufacturing and innovation. (2 October 2015)

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

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Economic Development

DCLG: The Growing Places Fund – Investing in infrastructure: information on the progress being made by Local Enterprise Partnerships (LEPs) in delivering the Growing Places Fund. (4 September 2015)

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

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Education

Education (Inspection of Nursery Education) (Wales) Regulations 2015 (SI 2015/1599 (W.198)): these regulations, which come into force in Wales on 1 September 2015, prescribe: the period within which a report of an inspection of nursery education under Sch.26 to the School Standards and Framework Act 1998 must be made; the authorities and persons to whom a copy of the report must be sent; and the intervals at which nursery education is to be inspected under that Schedule. They revoke and replace SI 1999/1441. (10 August 2015)

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

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Finance

Localis: Municipal bonds – What will they mean for the UK?: outlines the key themes to come out of a roundtable discussion hosted by the thinktank Localis. The event sought to address what the UK Municipal Bond Agency might mean for local government and the country more widely. (22 September 2015)

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

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Fire Authorities

DCLG: National coordination and advisory framework for England: this updated framework sets out a revised approach to the handling of national fire emergencies. The revisions aim to provide greater clarity on the respective roles of the Government and the fire sector if high impact and wide area emergencies have national implications. It also looks at the financial impacts on the host and receiving fire authorities when a request is made to move assets across fire and rescue authority borders. The framework now sets out DCLG’s position in relation to both pre-event and post-event deployment. (28 September 2015)

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

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Highways

PTEG: A bumpy ride – The funding and economics of highways maintenance on local roads in the English City Regions: this report reveals a growing gap between spending on road maintenance on national roads when compared with local roads. it fins that stop-start road maintenance funding is inefficient as it leads to expensive, short-term patching and mending of crumbling roads rather than planned and pro-active maintenance which fixes problems before the structural integrity of a stretch of road is damaged. It also shows how the poor condition of local roads is a drag on productivity. It calls on the Government to: create longer term certainty and stability over highways maintenance funding; give local authorities greater flexibility over how overall maintenance funding is spent; and review the formulae used to allocate available funding so as to better reflect the economic opportunity offered by local roads. (September 2015)

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

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Housing

HC Public Accounts Committee: Disposal of public land for new homes: this report is highly critical of DCLG's handling of the Government's plans to "release enough public 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 DCLG cannot demonstrate the success of the land disposal programme in addressing the housing shortage or achieving value for money because it does not collect information on the actual number of houses built or under construction, the proceeds from land sold, or whether the parcels of land were sold at market value. Instead, it chose to focus only on a notional number for ‘potential’ capacity for building houses on the land sold by individual departments in order to determine ‘success’. The Department also counted towards the programme’s target the capacity of land sold before the programme had even started. It did not collect basic information necessary to oversee the programme effectively and, where it did collect programme-level data, there were omissions and inconsistencies. The Committee concludes that with much greater ambitions for land disposals in the new Parliament, the Department must address the weaknesses in the current programme, and the Department has accepted that it needs to improve its general monitoring. If it is to oversee the new programme effectively then this must specifically include tracking sale proceeds and progress with the actual construction of new homes, and overseeing the programme in a way that gives Parliament and the taxpayer much greater assurance over the value for money achieved from all disposals. (24 September 2015)

R (Brooks) v Islington LBC [2015] EWHC 2657 (Admin) (Admin Ct): B applied for judicial review of the Council's decision that it had performed its duty to secure the provision of accommodation pursuant to s.188 of the Housing Act 1996 when it had offered a house to B which she had refused. B applied to the Council under the homelessness provisions after she was evicted from her housing association accommodation for non-payment of rent. The Council's officers searched for temporary accommodation for the family pending the outcome of their inquiries on B's homelessness application, and offered her a house in another part of London. B refused that offer on the grounds that it was not suitable for her son who was a wheelchair user, and also it was too far away. B was told that, if she refused the offer, she would not be offered any further temporary accommodation while the Council made its inquiries into her homelessness application. The Council then sent her a notice that it had discharged its duty under s.188 and her temporary accommodation was cancelled. The issues before the court were whether the s.188 duty came to an end when the Council was satisfied that B had refused an offer of suitable accommodation; alternatively whether, the Council had properly discharged its s.188 duty if it did not give B an opportunity for a few days after making the offer of temporary accommodation to reconsider her refusal of the offer or to decide how to deal with the disagreement over the suitability of the accommodation. 
The court held, refusing the application, that a distinction had to be drawn between the existence of the s.188 duty and the steps required to perform that duty. The duty would continue to exist until the housing authority notified the applicant of its decision as to whether or not a duty was owed under another provision in Part VII of the 1996 Act. The housing authority had performed its duty under s.188 if it had secured an offer of suitable accommodation intended to be available until notification of its decision as to whether a duty was owed, subject to any material change of circumstances which meant that the offer was no longer suitable. If the housing authority had secured an offer of suitable accommodation, then, ordinarily, it would have performed its statutory duty under s.188. If the applicant refused the offer of suitable accommodation, the authority could not be required to take further steps to provide alternative accommodation unless there was a subsequent material change of circumstances which rendered the accommodation no longer suitable. (22 September 2015)

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

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Information Technology

Cabinet Office: Local government: naming and registering websites: sets out the rules, principles and process for registering and managing local government domain names. The guidelines apply to all new requests for registration by local authorities, fire authorities, PCCs or their joint authorities, joint committees and partnership bodies. (2 October 2015)

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

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Ports and Harbours

DfT: Harbour authorities – Notice on applying to be designated with powers to issue harbour directions: the Government is inviting harbour authorities to apply to be designated with the power to make harbour directions to better regulate shipping and improve safety of the harbour area. This notice outlines the information that harbour authorities need to submit and sets out the timetable for the application and designation process. The closing date for expressions of interest is 31 January 2016. (1 October 2015)

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

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Public Health

DH: Universal health visitor reviews – Advice for local authorities: guidance for local authorities responsible for the commissioning of 0 to 5 public health services and for providers of those services. It explains SI 2015/921 on the mandatory delivery of five key child development reviews as set out in the Healthy Child Programme – ‘universal health visitor reviews’. (30 September 2015)

LGA: A new home for public health services for children aged 0-5 – A resource for local authorities: briefing for officers on how to deliver their new statutory responsibility for commissioning children's public health services for children aged 0-5. It contains information about the transfer and the opportunities it brings to join up public health functions for children aged 0-19. (28 September 2015)

LGA: Must knows – Children's public health transfer: guidance for councillors on the key issues regarding responsibility for public health of children and babies which is transferring to local government on 1 October 2015. It highlights how they must know how their council is planning the transition, what the budget implications are and how their directors of public health and children’s services are working together to prepare for it. (28 September 2015)

DH: Evidence of service transformation for 0-5s: these case studies from health visitors and service users demonstrate the work and benefits of the transformed health visiting service. The service offers four levels of support depending on need, five universal reviews at key points in a child’s life and six high impact areas where health visitors make the biggest difference. (30 September 2015)

MoJ: Smoking in prisons: letter from Prisons Minister Andrew Selous to Robert Neill MP, Chairman of the Justice Select Committee,  informing him of MoJ's intention to implement a full smoke-free policy at four early adopter sites in England (HMPs Exeter, Channings Wood, Dartmoor and Erlestoke) from March 2016, and in all prisons in Wales from January 2016. (29 September 2015)
See also article in the Guardian: Prison smoking ban begins in 2016 despite fears of unrest.

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

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Regulatory Services

Home Office: Guidance on the licensing of late night refreshment: guidance to assist licensing authorities and police forces with monitoring and enforcement activity in relation to the provision of late night refreshment. It has been produced to reflect changes to the Licensing Act 2003 that allow licensing authorities to apply a number of exemptions. It may also help businesses who wish to provide hot food or drink late at night to determine whether they will require a licence under the 2003 Act in order to do so. Note that the provisions in the Deregulation Act 2015 that this guidance covers came into force on 1 October 2015; however the changes will not come fully into effect until November 2015 when the regulations prescribing premises types come into force. (1 October 2015)

Welsh Government: A framework for managing the night time economy in Wales: seeks views on a draft framework that will help develop local plans and strategies to address drug and alcohol related crime and disorder and anti-social behaviour in towns and cities, which occurs between 6pm and 6am. The consultation closes on 17 December 2015. (24 September 2015)

Deregulation Act 2015 (Commencement No.3 and Transitional and Saving Provisions) Order 2015 (SI 2015/1732 (C.105)): this Order brings a number of provisions of the 2015 Act into force on specified dates. These include:

  • s.59 and Part 5 of Sch.13 to the Act amending the Control of Pollution Act 1974 to remove the power of local authorities to designate areas as noise abatement zones, along with consequential amendments to that Act, the Local Government, Planning and Land Act 1980 and the Environmental Protection Act 1990;
  • s.66 and Sch.16 reducing burdens on schools, including removal of requirements to set annual targets and to have regard to guidance when carrying out certain staffing functions; and
  • s.71 amending Sch.2 to the Licensing Act 2003, giving licensing authorities powers to designate certain geographical areas, types of premises or time periods as exempt from the late night licensing requirements.

(29 September 2015)

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

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Transport

LGA: Missing the bus? Councils and the future of the bus in non-metropolitan areas: this reports argues that bus funding needs a total overhaul in the Spending Review to protect under-threat services for the elderly, disabled and commuters. It calls for a package of funding reforms and less red tape, allowing councils to do more to support bus services. (26 September 2015)

DfT: Cycling revolution goes electric: announces the winners of a £700,000 competition for funding from the Electrically Assisted Pedal Cycle Sharing Pilot Scheme that supports hire schemes for electronic bicycles (e-bikes). (28 September 2015)

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

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