Authority Update

Authority Update

30/10/2015

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:  

   Adult Social Services    Highways
   Children's Services    Infrastructure
   Communities    National Parks
   Compulsory Purchase    Police
   Devolution    Procurement
   Economic Development    Public Health
   Education    Regulatory Services
   Finance and Rating    Tortious Liability
   Governance    Welfare and Benefits

Adult Social Services

Carers Trust: How are councils implementing the new Care Act?: research carried out by Carers Trust shows that few local authorities have outlined how they are protecting carers’ health and preventing them developing a need for support. Under the Care Act 2014, which came into force this April, local authorities have a duty to provide services to carers that prevent, reduce or delay them developing a need for support. Carers Trust found that instead of developing new approaches specifically designed to support carers, many local authorities were absorbing their new prevention duties into existing strategies. (20 October 2015) 

Age UK: The health and care of older people in England 2015: this report presents the latest authoritative data on older people's health and care needs and the provision of health and care services in England. It analyses the degree to which these needs are being met by health and care services. It finds that the health and care system for older people in England is under severe stress and is underperforming, leading to higher costs, poorer health outcomes and worse patient and service user experience. (21 October 2015) 

ADASS, LGA & NHS England: Building the right support – A national implementation plan to develop community services and close inpatient facilities: this national plan sets out proposals for radically improving learning disability services. It sets out how hundreds of people with a learning disability and/or autism should benefit from new, better care options in the community instead of hospitals, with more never being admitted in the first place. To achieve the shift from inpatient to community-based services, the plan sets out three key changes:

  • local councils and NHS bodies will join together to deliver better and more co-ordinated services;
  • budgets will be shared between the NHS and local councils to ensure the right care is provided in the right place, with a new financial framework to speed up discharges, and the opportunity for local pooled budgets and revised funding guidance to enable swift discharges. For people who have been in hospital five years or more, specific payments will be made by the NHS to local authorities to enable their needs to be met in the community;
  • national guidelines will set out what support people and families can expect, wherever they live.

 A new Service Model describes what good services should look like, framed around nine principles from the perspective of the people using them. (30 October 2015)

Welsh Government: Code of Practice on the role of the Director of Social Services under Part 8 of the Social Services and Well-being (Wales) 2014 Act: s.144 of the 2014 Act requires a Welsh local authority to appoint a Director of Social Services (DSS) for the purposes of its social services functions. This paper seeks views on a draft CoP that sets out the strategic leadership role of the DSS. Local authorities, when exercising their social services functions, must act in accordance with the Code's requirements. The consultation closes on 4 December 2015. (23 October 2015)

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

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Children's Services

DfE: Children’s residential care review – Independent call for evidence: the Government has asked Sir Martin Narey to conduct an independent review of children’s residential care that will set out the role of residential care within the wider care system, and to make recommendations about how outcomes for those children who are currently placed in residential care can be improved. Sir Martin is now seeking views on the purpose and role of residential care for young children, and what works best to improve outcomes. The closing date for submissions is 31 December 2015. (28 October 2015)

HC Public Accounts Committee: Care leavers’ transition to adulthood: this report examines care leavers’ transition to adulthood. The Committee found systemic weaknesses in the provision of support for care leavers. Young people leaving local authority care have often had difficult lives and may struggle to cope with the transition to adulthood, e.g. experiencing social exclusion, unemployment or health problems, or spending time in custody. The report outlines a series of urgent recommendations to Government. (30 October 2015)

Welsh Government: Draft guidelines for local authority counselling services and Children and Adolescent Mental Health Services (CAMHS) on collaborative working: seeks views on draft non-statutory guidance on collaborative working between CAMHS and the local authority counselling services. The draft non-statutory guidance sets out how both services are organised, including their geographical footprint, and includes a number of case studies on collaborative working between the services. The consultation closes on 11 December 2015. (16 October 2015)

Children Act 2004 (Joint Area Reviews) Regulations 2015 (SI 2015/1792): these regulations, which come into force on 9 November 2015, revoke and replace, with modifications, SI 2005/1973. They enable the Chief Inspector of Education, Children’s Services and Skills, jointly with other relevant inspectorates, to review in a more effective and collaborative manner the effectiveness of local services and agencies in working together to protect and improve the well-being of children and young people. They deliver the Government’s commitment to deliver a new system of multi-agency reviews, to assess more effectively how local agencies are working in a co-ordinated manner to protect children and young people. (14 October 2015)

Medway Council v M & T (by her Children's Guardian) [2015] EWFC B164 (Fam Ct): T, aged 7, and her mother M applied for declarations and damages for breaches of their rights under Art.8 and Art.6 ECHR in connection with the council's accommodation of T under s.20 of the Children Act 1989. When aged 5, T was placed in emergency foster care after M was detained in hospital under the Mental Health Act. M later signed a Section 20 agreement but the social worker was concerned whether M fully understood the meaning of this, and she recommended a meeting to discuss a long term care plan for T, pointing out that the Council did not have parental responsibility of T and could not make decisions regarding T under Section 20 without M's consent. No such meeting was held and no steps were taken to address the situation. Care proceedings were eventually issued and an interim care order obtained after T had been in care for over two years. M and T claimed that T's accommodation by the Council was unlawful as it was not sanctioned by either M's consent nor by an order of the court, and that proceedings should have been brought as soon as possible after T's accommodation.
The court held, granting the applications, that the Council 's accommodation of T and her removal from M was unlawful. The Council was not at any time acting in bad faith; however, both its social work and legal teams showed the most shocking misunderstanding of the law  and of the proper limitations of their exercise of power over this family, compounded by an ignorant or arrogant disregard for the advice and recommendations being provided by the LAC review process and the permanency panel. An award of damages was necessary in this case: the unlawful removal of a child amounted to interference with one of the most fundamental of rights, that of respect for family life. T was removed not simply without lawful authority but without her mother even being properly informed until months afterwards, and M's poor mental health did not justify this failure. This was an egregious breach, albeit in good faith, being exactly that which should not happen, and which failed to observe the recent and emphatically firm re-emphasis of the correct legal approach. This was then exacerbated by the persistent failures to bring these breaches to an end by following recommendations and addressing the legal status of the child, with its knock-on impacts upon a highly vulnerable mother who spoke little or no English and suffered from mental health difficulties. The circumstances of this case were very grave and merited an award that was higher than those currently reported. Other than an absence of inappropriate pressure on M and there being no element of bad faith, all other factors were shockingly poor, and the length of time over which these breaches were maintained despite advice to readdress the situation was extreme. The just and appropriate award in this case for T and M was £20,000 each. (13 October 2015)

Tickle v North Tyneside Council [2015] EWHC 2991 (Fam) (Fam D): T, a journalist, applied for permission to report certain care proceedings. T was writing an in-depth report into the care system and wished to analyse and speak about the experiences of M with her various children in the care system. M had shared her experiences within the care system on social media sites and also spoke at universities and to social workers. The Council belatedly agreed the wording of a Reporting Restriction Order (RRO).
The court endorsed the terms of the order. The judge highlighted how these were not easy applications – they required time, effort, research and expense on what was essentially a satellite issue. He gave guidance on the approach to be taken by a local authority and the media where the media wished to publish information about a public law family case. (19 October 2015)

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

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Communities

Welsh Government: Well-being of Future Generations (Wales) Act 2015 – How do you measure a nation’s progress?: the 2015 Act requires Welsh public bodies to ensure that, when making their decisions, they take into account the impact they could have on people's lives in Wales in the future. The Welsh Government is now seeking views on a set of national well-being indicators for Wales that are intended to measure progress in achieving a prosperous, resilient, more equal and healthier Wales, with cohesive communities, a vibrant culture, thriving welsh language and a globally responsible Wales. The consultation closes on 11 January 2016. (19 October 2015)

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

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Compulsory Purchase

DCLG: Guidance on compulsory purchase process and the Crichel Down Rules for the disposal of surplus land acquired by, or under the threat of, compulsion: revised guidance that has been updated to  reflect legislative changes and case law since 2004.  It replaces Circular 06/2004 and 13 other circulars and government guidance documents.
DCLG has also published the outcome of its technical consultation on improvements to compulsory purchase process, giving details of which proposals it intends to take forward. Some of the measures require primary legislation and will be included in the Housing and Planning Bill that is currently before Parliament. (29 October 2015)

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

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Devolution

DCLG: Devolution deals: DCLG has announced that devolution deals have been signed with the North East Combined Authority and with Tees Valley Combined Authority. Each area will have an elected Mayor from 2017 and will receive extra funding, together with new powers. (23 October 2015)

DCLG: Proposal to establish a combined authority for Tees Valley: seeks views on establishing a combined authority for the area of Tees Valley, following the governance review submitted by Darlington, Hartlepool, Middlesbrough, Redcar & Cleveland and Stockton on Tees Councils in partnership with the LEP, Tees Valley Unlimited. It also seeks views on the proposed structure, constitution and functions of the new authority. The consultation closes on 9 December 2015. (28 October 2015)

NALC: The Government spells out its plans for parishes: reports on the speech by DCLG minister Marcus Jones MP to the NALC Annual Conference on the implications for parishes of the Government's ambitious plans for devolution. He said that parish councils have a key role to play and they should be speaking to their principal authorities about opportunities for further powers and functions to be devolved. The NALC is lobbying for the Government’s devolution plans to include communities, neighbourhoods and parishes. (27 October 2015)

Office of the Leader of the House of Commons: English votes for English laws – An explanatory guide to proposals: the House of Commons has approved proposals to change the way that it considers legislation. MPs with constituencies in England (and, where relevant, England and Wales) will now be asked to give their consent to legislation that only affects England (or England and Wales) for matters that are devolved elsewhere in the UK.  This note sets out how the new legislative process will work. It is published alongside the proposed new Standing Orders and an Explanatory Memorandum. (22 October 2015)

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

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Economic Development

London Councils: Building on success – London's town centres: this report revisits and builds on some of the recommendations made in London Councils’ 2013 report: 'Streets ahead? Putting high streets at the heart of local economic growth'. London Councils believes that a variety of solutions are needed to continue the growth and success of London's town centres and that more powers should be given to local government to design interventions that respond to local opportunities and challenges as they arise. The report sets out a series of recommendations that would enable and incentivise local authorities to take leadership over the economies and place-making of their town centres. (23 October 2015)

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

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Education

DfE: Intervening in failing, underperforming and coasting schools: seeks views on proposals to address underperformance in local authority-maintained schools. it discusses how to define local authority-maintained schools that are eligible for intervention, and how regional schools commissioners and local authorities should use their intervention powers. There is also draft guidance on schools causing concern. The consultation closes on 18 December 2015. (21 October 2015)

R (C) v Westminster City Council (Unreported, Admin Ct): C, who suffered from issues with social communication and an autistic spectrum disorder, applied for judicial review of the Council's decision to cease funding a residential college placement and the suggestion that he attend a local college with a different support package. The Council funded a three-year residential placement for C in an out of area college, but after two years refused to fund a further two-year course, and ended the funding for the residential placement. It found that the C's needs could be met through a local college and agreed to provide transitional support.
The court held, granting C's application, that the Council's decision was unlawful, as it had breached C's substantive legitimate expectation that the placement would be funded for three years to allow for the completion of life skills courses and therapy. (23 October 2015)
The judgment is available from Lawtel (subscription required).

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

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Finance and Rating

DCLG: Reforming business rates appeals – Check, challenge, appeal: seeks views on proposals to reform the business rates appeals system in order to provide a better service to businesses. The consultation closes on 4 January 2016. (30 October 2015)

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

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Governance

Institute of Local Government Studies: Building better collaboration – Improving collaborative behaviours in local government: this paper, commissioned by the District Councils' Network, highlights what makes collaboration at the district level work best. It looks at how districts are innovating to strengthen their role as local leaders and to deliver savings and better outcomes for the needs of their communities, and what behaviours, systems and structures help make innovation by districts successful and sustainable. (16 October 2015)

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

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Highways

DfT: Strategic salt protocol: for the Winter 2015/16 season, the DfT has retained an emergency salt stockpile of approximately 286,000 tonnes with a further 102,000 tonnes being held by Highways England. This note sets out the arrangements for allocation of salt from the emergency salt reserve, if and when required, including the price of salt. The DfT has also announced that it will be conducting a survey of salt stocks being held by highway authorities, commencing in November. (30 October 2015)

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

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Infrastructure

DCLG: Nationally significant infrastructure projects and housing – Briefing note: provides further information on the nationally significant infrastructure planning clause of the Housing and Planning Bill that is currently before Parliament. The provisions will enable housing which is related to the infrastructure to be consented as part of a development consent order for a nationally significant infrastructure project. This briefing note includes a draft guidance note with further details on the circumstances where housing will be acceptable and the amount and type of housing that would be allowable. (28 October 2015)

DCLG: Large sites infrastructure programme – Prospectus: the Large Sites Infrastructure Fund for locally-led large scale housing schemes is now open for bidding. Funding is being made available on the basis that it is recoverable. It will make investments to March 2020 and will be operated as an open competition. There is a minimum investment of £500,000 and must be on a site with capacity for 1,500 units. Bidding is open on a continuous basis until the fund has been allocated. Bids will be assessed and prioritised against the criteria set out in the prospectus and where applicable will be allocated to the shortlist. The intention is to run Continuous Market Engagement to the end of March 2020 to allow schemes to come forward for support at the point that it is needed and enable a robust and well informed picture of locally-led large scale development activity to be established. (19 October 2015) 

R (Robert Hitchins Ltd) v Worcestershire CC [2015] EWCA Civ 1060 (CA): this appeal related to two planning permissions which were in identical terms save that the first permission was subject to a planning obligation to make a financial contribution towards transport strategy whereas the second, later permission was free from that obligation. The issue was whether the developer having begun the development under the first permission and thus become liable for the first instalment of the transport contribution, "switched horses" following the grant of the second permission and carried out the rest of the development under that second permission, thereby avoiding liability to pay further instalments of the transport contribution. The judge held on the evidence before him that the developer had so acted and that no further instalments of the transport contribution were payable. The Council appealed.
The court held, dismissing the Council's appeal, that the Unilateral Undertaking was enforceable as a contract and was entered into in connection with a commercial development, so the principles of interpretation of a contractual provision applied in their essential features: e.g. the need to focus on the meaning of the relevant words in their documentary, factual and commercial context; the application of an objective test; and the relevance of commercial common sense. It is obvious from the background that the developer intended by the covenant to switch planning horses as from the relevant commencement date, by ceasing to carry out the development pursuant to the First Planning Permission and by carrying it out thereafter under the Second Planning Permission. Para.1.2 of Schedule 1 to the Unilateral Undertaking, whereby the developer covenanted "to dispense with the implementation of the First Planning Permission" should be interpreted against the documentary, factual and commercial background, and to give it a meaning that avoided ineffectiveness. (27 October 2015)

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

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DEFRA: National Parks – Extensions to the Lake District and Yorkshire Dales Parks: details of the Environment Secretary's decision to extend the Yorkshire Dales and the Lake District to cover an additional 188 square miles of land across Cumbria and a small part of Lancashire. The extension comes into force on 1 April 2016 and will result in the two National Parks being joined. (23 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: Police Innovation Fund 2016/17: the Policing Minister Mike Penning has announced changes to the Police Innovation Fund, which supports increased efficiency and collaboration between different police forces. The changes mean police forces will be able to seek funding to assess an innovative idea, as well as fully worked through proposals. The bidding form and assessment criteria give more details. Police and crime commissioners must submit bids by the deadline of 5pm on 18 December 2015 via the online portal. (23 October 2015)

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

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Procurement

Home Office: Transparency in supply chains – A practical guide: s.54 of the Modern Slavery Act 2015 requires certain organisations to develop a slavery and human trafficking statement each year. The slavery and human trafficking statement should set out what steps organisations have taken to ensure modern slavery is not taking place in their business or supply chains. This document provides guidance on who is required to publish a statement, how to write a slavery and human trafficking statement and how to approve and publish the statement. (29 October 2015)

Cabinet Office: Nominations for Social Value Awards open: the Cabinet Office has opened nominations for the Social Value Awards, which recognise and celebrate good practice in commissioning and providing social value. The closing date for nominations is 20 November 2015 and the winners will be announced at the Social Value Summit in February 2016. It has also announced almost £30,000 funding for eight social value projects around the country, to help public service commissioners improve how they measure their social, economic and environmental impact as part of the Public Services (Social Value) Act 2012. (28 October 2015)

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

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Public Health

Home Office: Mandatory reporting of female genital mutilation – Procedural information: guidance for relevant professionals and the police on the new mandatory reporting duty for FGM that is being introduced via the Serious Crime Act 2015. The duty will require regulated health and social care professionals and teachers in England and Wales to report known cases of FGM in under 18-year-olds to the police. It will come into force on 31 October 2015. (20 October 2015)

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

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Regulatory Services

London Councils: £200 fines for illegally-operated skips on London’s streets: London Councils’ Transport and Environment Committee (TEC) have used their powers under the London Local Authorities and Transport for London Act 2013 to set penalties for contravening regulations for operating skips on London’s public highways, including offences such as not removing a skip once full or not having proper lighting. The committee also agreed new discretionary powers for councils to immobilise skips which contravene regulations, e.g. where the identity of the skip’s operator is not known, thereby incurring a £100 release fee in addition to the penalty charge notice. (16 October 2015)

Transport for London v Uber London Ltd [2015] EWHC 2918 (Admin) (Admin Ct): Uber was licensed by TfL as a private hire vehicle operator in London. Uber's booking and customer billing process involved the customer using the Customer App and the driver using the Driver App; both Apps were licensed by an Uber related company and the Driver App had to be installed on the driver's smartphone. Two associations representing licensed taxi drivers contended that private hire vehicles operating within the Uber network were equipped with taximeters, in contravention of s.11 of the Private Hire Vehicles (London) Act 1998 .
The court held that a device for recording time and distance was not a device for calculating a fare based on time and distance, let alone one based on more than that, including the fare structure itself, a necessary component to the calculation. The language of the statute was quite clear: the essence of a taximeter for the purpose of s.11 was that the device must be for the calculation of the fare then to be charged, based on whatever inputs are appropriate. The smartphone was not a taximeter. The smartphone with its Driver App might be essential to enabling the calculation to take place but that did not make it a device for calculating fares; nor was it part of a single device with the server. The purpose of the Act was to bring the hitherto unlicensed mini-cab trade in London within a licensed framework, to protect the public using the services of mini-cabs from a variety of mischiefs. There was nothing in the Act to suggest that the mini-cab passenger was not to enjoy any improvement which technology might bring in the speed and accuracy of their fare calculations, and breakdown of the bill, so long as the fare was not calculated by a taximeter.
The court granted a declaration that a taximeter, for the purposes of s.11 of the Private Hire Vehicles (London) Act 1998, does not include a device that receives GPS signals in the course of a journey, and forwards GPS data to a server located outside of the vehicle, which server calculates a fare that is partially or wholly determined by reference to distance travelled and time taken, and sends the fare information back to the device. (16 October 2015)

Kaivanpor v Sussex Central Justices; Brighton & Hove City Council (Interested Party) (Unreported, Div Ct): the court considered the burden of proof as to whether a person was a fit and proper person to hold a taxi licence under the Local Government (Miscellaneous Provisions) Act 1976. K appealed by way of case stated against the magistrates' dismissal of his appeal against the Council's revocation of his private hire and hackney carriage licence.
The court held, allowing the appeal, that where a person had applied for a licence under the 1976 Act scheme, the burden of proof was on him. Once he had a licence, the scheme sensibly required the licensing authority to be satisfied of certain matters. The burden was on the licensing body to satisfy itself of changes of circumstances and not for the holder of the licence to show that. The magistrates had erred in law in placing the burden of proof on K. (28 October 2015)
The judgment is available on Lawtel (subscription required).

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

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Tortious Liability

Summers v Cardiff City Council [2015] EWHC 3066 (QB) (QBD): S claimed damages from the Council for respiratory injuries he had suffered as a result of exposure to asbestos during the course of his employment as a boilerman. The Council accepted that it was not in a position to deny S's alleged asbestos exposure, nor did it dispute that such exposure was in breach of duty. The issue before the court was whether S had acquired the relevant knowledge under s.14 of the Limitation Act 1980 prior to 18 August 2011, and thus the claim was statute-barred.
The court held that S suffered from a symptomatic asbestos-related condition from 2000 and so that was when his cause of action arose and he first had knowledge that his injury was significant at that time. Consequently, the limitation period applicable under s.11(4) of the 1980 Act expired well before 2011. (28 October 2015)

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

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Welfare and Benefits

Income-related Benefits (Subsidy to Authorities) Amendment Order 2015 (SI 2015/1784): this Order, which comes into force on 9 November 2015, amends SI 1998/562 which provides for subsidy to be payable to local authorities administering housing benefit. The changes are mainly financial. The Order takes effect retrospectively, and enables final payments of subsidy to be paid after the Order is made. Prior to the Order being made, local authorities are paid interim amounts of subsidy. (12 October 2015)

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

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