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.

16/10/2015

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

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

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

  
   Access to Information    Health and Social Care
   Coroners    Highways
   Delivery of Services    Housing
   Development Control    Licensing
   Devolution    Maladministration
   Education    Police
   Employment    Procurement
   Equality and Discrimination    Public Health
   Finance and Rates    Standards

 

Access to Information

East Sussex CC v Information Commissioner (C-71/14) [2015] EUECJ C-71/14 (ECJ): the ECJ has given a preliminary ruling in proceedings between the Council and the ICO on a decision notice that declaring unlawful the Council's charge for supplying environmental information to a property search company. The ECJ ruled that Art.5(2) of the Public Access to Environmental Information Directive 2003/4 means that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database, used for that purpose by the public authority, but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount. Art.6 of Directive 2003/4 did not preclude national legislation under which the reasonableness of a charge for supplying a particular type of environmental information was the subject only of limited administrative and judicial review as provided for in English law, provided that the review was carried out on the basis of objective elements and, in accordance with the principles of equivalence and effectiveness, related to the question whether the public authority making the charge had complied with the conditions in Art.5(2) of that Directive, which was for the referring tribunal to ascertain. (6 October 2015)

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

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Coroners

MoJ: Post-implementation review of the coroner reforms in the Coroners and Justice Act 2009: seeks people’s experiences of aspects of coroner services that were reformed under the 2009 Act. It is interested in whether the coroner reforms are operating as planned and whether there have been any unintended consequences. The consultation closes on 10 December 2015. (15 October 2015)

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

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Delivery of Services

Welsh Government: Alternative delivery models in public service delivery – An action plan for consultation: seek views to inform the development of a national framework within which decisions can be made locally on the appropriateness of alternative delivery models in specific service areas. It is also seeking views on the practical support which should be provided to public service organisations, their workforce, citizens and communities in making decisions about how services should be designed and delivered. The consultation closes on 13 January 2016. (13 October 2015) 

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

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Development Control

DCLG: Thousands more homes to be developed in planning shake up: announces that the temporary permitted development rights introduced in 2013, which enable offices to be converted to new homes without having to apply for planning permission, are to be made permanent. Those who already have permission will have three years in which to complete the change of use. Those areas that are currently exempt from the office to residential permitted development rights will have until May 2019 to make an Article 4 direction if they wish to continue determining planning applications for the change of use. To further support the delivery of new homes, the rights will in future allow the demolition of office buildings and new building for residential use. In addition, new permitted development rights will enable the change of use of light industrial buildings and launderettes to new homes. (13 October 2015)

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

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Devolution

Localis: Making devolution work – A practical guide for local leaders: new research commissioned by Grant Thornton LLP shows that local government leaders are very positive about making further devolution happen, but big challenges relating to practicalities remain, with some devolution bids failing to fall in line with central government thinking. (7 October 2015)

Nuffield Trust: Parliamentary briefing – Cities and Local Government Devolution Bill, 2nd Reading: looks at the potential implications of the Cities and Local Government Devolution Bill for the NHS. The Bill allows Secretaries of State to remove duties and powers from public bodies, including NHS trusts and commissioners, and transfer them to local authorities. This briefing urges MPs to investigate a series of important points about how this might work and the issues it might raise. (13 October 2015)

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

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Education

Ofsted: Local Area SEND inspections – The inspection of local areas’ effectiveness in identifying and meeting the needs of children and young people who are disabled and have special educational needs: seeks views on proposals for inspecting how effectively local areas fulfil their responsibilities towards children and young people who are disabled and/or have special educational needs under s.20 of the Children Act 2004. The consultation document sets out the principles under which Ofsted and the CQC propose to undertake these joint inspections. The consultation closes on 4 January 2016. (12 October 2015)

DfE: School improvement – Effective school partnerships: this review provides an overview of the current knowledge-base relating to the characteristics of effective inter-school collaboration and other forms of school-to-school partnership in the English school system. It explores the current literature in this area to identify what works, what doesn’t, why and in what circumstances thereby providing an understanding of the key features of successful inter-school collaborative arrangements. (15 October 2015) 

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

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Employment

Modern Slavery Act 2015 (Duty to Notify) Regulations 2015 (SI 2015/1743): these regulations, which come into force on 1 November 2015, set out the information that public authorities must include when discharging their duty under s.52 of the Modern Slavery Act 2015 to notify the Secretary of State where they have reasonable grounds to believe that a person may be a victim of slavery or human trafficking. (9 October 2015)

DBIS: Tackling exploitation in the labour market: seeks views on proposals to improve the enforcement of employment rights to prevent non-compliance and the exploitation of vulnerable workers. The proposals include: creating a new offence of aggravated breach of labour market legislation; increasing intelligence and data sharing between the existing enforcement bodies; and increasing the powers of the Gangmasters Licensing Authority to enable it to deal with serious exploitation. The consultation closes on 9 November 2015. (13 October 2015)

DBIS: Reforming the regulatory framework for the recruitment sector and proposal to prohibit EEA-only recruitment: seeks views on proposed changes to the Conduct of Employment Agencies and Employment Businesses Regulations 2003. The changes include banning employment agencies and businesses from recruiting solely from other EEA countries without advertising in Great Britain. The consultation closes on 23 November 2015. (13 October 2015)

DBIS: Zero hours contracts: guidance for employers: provides further information on zero hours contracts and how they should be used. It sets out what zero hours contracts are, how they affect employment rights, appropriate use and best practice. (15 October 2015)

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

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Equality and Discrimination

Welsh Government: A call for proposals on a migrant Roma strategy for Wales: seeks views on whether there is a need for a dedicated strategy for the inclusion of migrant Roma in Wales. The consultation closes on 10 January 2016. (5 October 2015)

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

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Finance and Rates

HMT: Chancellor unveils ‘devolution revolution’: the Chancellor has announced major plans to devolve new powers from Whitehall to local areas to promote growth and prosperity. By May 2020, local government will be able to retain 100 per cent of local taxes – including all £26bn of revenue from business rates – to spend on local government services. The Government will also abolish the Uniform Business Rate and give local authorities the power to cut business rates to boost enterprise and economic activity in their areas. Local areas which successfully promote growth and attract businesses will keep all of the benefit from increased business rate revenues. At the same time, the core grant from Whitehall will be phased out, and local government will take on new responsibilities. Local authorities will be able to cut business rates as much as they like. Directly elected mayors – once they have support of local business leaders through a majority vote of the business members of the Local Enterprise Partnership – will be able to add a premium to business rates to pay for new infrastructure. This power will be limited by a cap, likely to be set at 2p on the rate. (5 October 2015)
See also the LGA's response to the announcement.
Bevan Brittan has published an alert that considers the impact of the proposals for local authorities: New Business Rates proposals: Making sure your local authority gets the best outcome.

DCLG: Improving efficiency of council tax collection: seeks views on proposals to facilitate improvements in the collection and enforcement process in business rates and council tax. The consultation closes on 18 November 2015. (8 October 2015)

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

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Health and Social Care

LGA: Shared principles for redesigning the local health and care landscape: sets out shared principles for local authorities, HWBs, CCGs and other health commissioners to help them when developing proposals for major service changes and configuration. The principles are intended to provide a consistent and rational framework within which to test that proposals are person-centred, locally appropriate, evidence based and focused on whole-system effectiveness. (14 October 2015)

CQC: The state of health care and adult social care in England, 2014 to 2015: sets out the findings of the latest annual overview of health and adult social care in England. The analysis of inspections and ratings data shows that, despite increasingly challenging circumstances, many services have managed to either improve or maintain quality. (14 October 2015)

LGA: Adult social care, health and wellbeing – A shared commitment: 2015 Spending Review submission: the LGA and ADASS are warning that the ability of councils to provide dignified care for people in old age or for those with a disability is at risk unless urgent steps are taken to plug the burgeoning gap in social care funding. They argue that there is a need for a separate transformation fund with the aim of implementing a new prevention strategy to drive real change. This would, in the short-term, enable local areas to spend money on new investment in preventative services alongside ‘business as usual’ in the current system, until savings can be realised and new ways of working become commonplace. (14 October 2015) 

LGA: Prevention – A shared commitment: Making the case for a Prevention Transformation Fund: the LGA is calling on the Chancellor to use the Spending Review to urgently invest £2bn to help transform the health and care system towards preventing ill health rather than waiting to fix problems only after they occur. This paper pulls together key pieces of evidence about the cost effectiveness of prevention in order to develop the LGA’s concept of a Prevention Transformation Fund. The purpose of the fund, delivered upfront for new local prevention services, would be to prevent problems arising in the first place, prevent dependency on the health and social care system, or prevent the escalation of problems which become worse for individuals and more costly to the taxpayer. (14 October 2015) 

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

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Highways

DfT: Statutory guidance for highway authority permit schemes: updated statutory guidance for highway authorities on complying with the Traffic Management Permit Scheme (England) Regulations 2007 (SI 2007/3372) , as amended by SI 2015/958. The changes enable highway authorities in England to bring forward, and vary or revoke, street work permit schemes. (6 October 2015) 

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

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Housing

Housing and Planning Bill: this Bill has been introduced in the Commons and received its 1st Reading. The Bill aims to take forward proposals to build more homes that people can afford, give more people the chance to own their own home, and ensure the way housing is managed is improved. The provisions include:

  • a general duty on planning authorities to promote the supply of starter homes when planning functions are being carried out, and a specific duty in relation to decisions on planning applications;
  • power to the Secretary of State to require local housing authorities to make a payment calculated by reference to the market value of the high value vacant housing owned by the authority. This would apply only to local authorities which are required to keep a Housing Revenue Account. Local housing authorities would have a duty to consider selling such housing and enable the Secretary of State to enter into an agreement with a local authority to reduce the amount of the payment, so long as the money is spent on housing or on things that will facilitate the provision of housing. "High value" is to be defined in regulations; the definition may be different in different areas;
  • gives the Secretary of State power to set the levels of rent that a registered provider of social housing must charge "high income" social tenants (to be defined);
  • changes to local authorities' duties under the Self‐build and Custom Housebuilding Act 2015 to keep, and have regard to, registers of people seeking land for self‐build and custom housebuilding;
  • enabling local authorities to apply for banning orders against rogue landlords and letting agents; and
  • changes to neighbourhood planning, including power to the Secretary of State to prescribe time periods within which local planning authorities must undertake key neighbourhood planning functions.

See also the LGA's briefing on the Bill that summarises the sections of interest to local government, and sets out the LGA’s views on a number of subjects, including: starter homes; extension of Right to Buy; vacant high value council homes; and mandatory rents for high income tenants. (13 October 2015)

DCLG: Pay to stay – Fairer rents in social housing: seeks views on proposals that higher-earning tenants in social housing should pay a fair level of rent to continue living there. it proposes that  social rents would increase as tenants’ incomes rise above a set threshold  - £40,000 in London and over £30,000 elsewhere. Local authorities will be allowed to recover any reasonable administrative costs before they are required to return additional income from increased rents to the exchequer. The consultation closes on 20 November 2015. (9 October 2015)

HCA: Starter Homes Local Authority Funding Programme prospectus: guidance on how to apply for funding from the £10m Starter Homes Local Authority Funding Programme, which is designed to accelerate the supply of local authority land available for exemplar Starter Homes development. The funding will help local authorities prepare vacant and underused brownfield land so that high-quality homes can be made available for first time buyers and contribute to Government’s target of 200,000 Starter Homes over the course of this Parliament. Funding will be made on a grant funding non-recoverable basis and must be spent by March 2016 so that Starter Homes can be built in 2017 to 2018. The closing date for submission of bids is 2 November 2015. (12 October 2015)
The HCA has also published template bidding documents and funding agreement that bidders must complete, setting out clearly how they meet the assessment criteria for which the grant funding is being requested.

LGA: A home is much more than a house – Integrated approaches for the housing, health and care needs of vulnerable adults: the Care Act 2014 recognises the contribution of housing to the care and support system, defining housing as a ‘health-related service'. The LGA commissioned Sitra to run four regional workshops to define the core elements of what ‘good' integrated working with housing looks like and to identify the conditions most conducive to its growth, in order to establish examples of good practice in the integration of health and housing and to better understand any barriers or opportunities to bringing these two areas together. This report brings together the key challenges identified in the workshops and sets out case study examples of the progress that has been made by many different people in different places working at both the strategic and operational level. (14 October 2015)

F v Barking and Dagenham LBC [2015] EWHC 2838 (Admin) (Admin Ct): F applied for judicial review of the Council's refusal to provide her with accommodation and for an order compelling the Council to carry out a Child in Need assessment of her eight year old son, J. She had no leave to remain in the UK and so was not entitled to any support under Part 7 of the Housing Act 1996. The court was faced with a circular conundrum: the Council argued that it had no power to offer F accommodation and that it could not exercise any such power in connection with J's right to family life under Art.8 ECHR while F did not have the benefit of an order from the Family Court granting her at least shared residence; F contended that without accommodation the Family Court would not grant her shared (at least) residence of J.
The court held that F's reliance on J's Art.8 ECHR rights was a difficult but logically and legally arguable route by which she might be able to bring herself within the grace of the Council. However, it was not right or possible for the court to make an Art.8 order because the order would be both conditional and uncertain. It was entirely possible that the Family Court would decide that the best outcomes for J were likely to involve shared contact (at least) with his mother. This court could not achieve that because the power to make such an order was with the Family Court. Equally, it was the Family Court that was in the best position to determine whether a Child in Need assessment was required in J's case and whether it would serve any real purpose given the interim Supervision Order which was already in place. The court ordered that the claim be transferred to a High Court Judge who was also nominated to sit in the Family Division. (8 October 2015)

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

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Licensing

Licensing Act 2003 (Late Night Refreshment) Regulations 2015 (SI 2015/1781): these regulations, which come into force on 5 November 2015, prescribe those descriptions of premises that a licensing authority is permitted to designate under Sch.2 para.2A to the Licensing Act 2003 as exempt from the licensing requirements that apply to the provision of late night refreshment, i.e. the supply to the public of hot food or hot drinks between 11pm and 5am. (15 October 2015)

Children (Performances and Activities) (Wales) Regulations 2015 (SI 2015/1757 (W.242)): these regulations, which come into force on 30 October 2015, set out the requirements in relation to applications made to Welsh local authorities for, and the conditions that apply to, licences for performances and activities granted under s.37 of the Children and Young Persons Act 1963, as well as requirements applicable to performances for which no licence is required by virtue of s.37(3)(a) of the 1963 Act. They also set out requirements in respect of licences granted under s.25 of the Children and Young Persons Act 1933 for children performing or taking part in activities abroad for profit. (7 October 2015)

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

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Maladministration

LGO: Councils reminded they can contract out services, but they cannot contract out accountability: the LGO has highlighted that, although local authorities can contract out services, they remain responsible for the quality of any service those contractors provide, and for addressing any complaints users of services may have. This accountability remains irrespective of whether the provider is a private company, a third sector organisation or another publicly-funded body. The comments arose following a complaint about Somerset CC by the mother of a young adult with Asperger’s Syndrome and hearing difficulties after an inaccurate assessment of the man’s needs left him without direct support payments for 14 months. The LGO found the council had failed to keep full records of the man’s needs and did not ensure that its contracted provider, the Trust, kept good records either. There was fault in the way the Trust carried out the review of the young man’s care package and as it was carrying out a council function on its behalf, this amounted to fault on the part of Somerset CC. (8 October 2015)

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

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Police

Home Office: Special grant guidance: guidance for PCCs on the process for applying to the Home Office for special grant funding to meet additional costs that would be incurred from policing unexpected and exceptional events within their areas. (7 October 2015)

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

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Procurement

Electoral Reform Society: The cost of one-party councils – Lack of electoral accountability and public procurement corruption: this report looks at the savings in contracting between single-party councils (or those with a significant number of uncontested seats) and more politically competitive councils in a pool of 132,000 public procurement contracts between 2009 and 2013. It also calculates their procurement process against a ‘corruption risk index’, looking at ‘red flags’ such as where only a single bid was submitted or there was a reduced length of time between advertising the bid and the submission deadline. It estimates that could be wasting almost £3bn a year through a lack of scrutiny of their procurement processes and argues that one-party councils are around 50% more at risk of corruption than competitive councils. (5 October 2015)

 Openview Security Solutions Ltd v Merton LBC [2015] EWHC 2694 (TCC): the Council applied under Reg.47H of the Public Contracts Regulations 2006 to set aside the automatic suspension of its tendering process for the provision of an integrated CCTV and automatic number plate recognition systems in the borough. OSS was an unsuccessful bidder for the contract. OSS brought proceedings challenging the contract award, contending that the successful tender was fundamentally non-compliant and should have been rejected from consideration for that reason, and that the Council had taken unidentified criteria into account when assessing the bids. It opposed the application to lift the automatic suspension on the grounds that damages would be an inadequate remedy.
The court considered American Cynamid and the public interest, and granted the application. The judge  was satisfied that damages would be an adequate remedy for OSS. The loss of the Merton contract would not cause financial losses for OSS that would be significant and irrecoverable as damages. The information placed before the court did not support the idea that OSS's reputation in the eyes of future contracting authorities will lead to the loss of future contracts, turnover or profit. (28 September 2015)

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

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Public Health

PHE: Supporting children, young people and families and communities to be safer, healthier and to reduce youth crime: this guidance sets out the rationale for effective partnership working and pulls together the core principles to help local areas develop their own local frameworks to support effective working. It is aimed at school nurses and youth justice professionals working with young people who are in the youth justice system or at risk of being involved. (2 October 2015) 

DH: Public health formula for local authorities from April 2016: seeks views on the proposed public health allocation formula for 2016/17, which is used to allocate public health resources to local authorities. The consultation closes on 6 November 2015. (8 October 2015)

London Councils: Embedding and accelerating prevention: sets out London Councils' response to the All Party Parliamentary Group on Primary Care and Public Health's inquiry into delivering the Five Year Forward View: Behavioural change, information and sign posting. The response calls for public health funding for local government to be protected and for government to give councils the necessary levers in licensing and planning policy to enable them to protect health. It also argues that no single organisation can take responsibility for accelerating behaviour change in the population, rather there needs to be concerted, joined up action at local, regional and national levels.  It makes the point that prevention should not be seen as an add on and needs to be embedded in planning, commissioning and delivery, with a “making every contact count” approach taken wherever possible. (13 October 2015)

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

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Standards

Kelton v Wiltshire Council [2015] EWHC 2853 (Admin) (Admin Ct): K applied for judicial review of the Council's decision to grant permission to developers for a residential development that included some affordable housing. K contended that M, a councillor on the Council's planning committee, was automatically disqualified from participating in the committee's decision because he was a director of a housing company, S Co, which had an interest in the affordable housing part of the development, and that M had a disclosable pecuniary interest under s.31 of the Localism Act 2011. He also argued that the decision was tainted by apparent bias.
The court held, granting the application, that M had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating in the decision. The committee's decision did not lead to M obtaining any benefit and there were too many contingencies between the committee's decision and any benefit to him as a director of S Co for the rule to have any purchase. Nor was M statutorily disqualified under s.31 as S Co was not the planning applicant and at the time of the decision it had no contract with the developer. But M's participation in the planning decision gave rise to an appearance of potential bias. S Co's position was superior to that of any other interested affordable housing providers because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered. Because of that, M's private interests were engaged as a director, not just his interests in the cause of affordable housing. In all these circumstances it was wrong for M to have participated in the meeting. (9 October 2015)

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

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