Authority Update

Authority Update


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    Finance
   Children's Services    Fire and Rescue Authorities
   Communities    Housing
   Consultation    Judicial Review
   Delivery of Services    Officers
   Devolution    Public Health
   Economic Development    Regulatory Services
   Education    Transport

Adult Social Services

NHS England / LGA / ADASS: Building the right support – A national implementation plan to develop community services and close inpatient facilities: this plan aims to radically improve learning disability services by supporting people with a learning disability and/or autism to lead more independent lives and have greater say about the support they receive. (30 October 2015)

DH: Government response to No voice unheard, no right ignored - a consultation for people with learning disabilities, autism and mental health conditions: following responses to the March 2015 consultation on strengthening rights of people with learning disabilities, autism and mental health issues, the DH has outlined measures to be taken, including early actions that seek to sustain momentum generated, chiefly through the use of existing powers. It also details further changes, including proposed legislative changes that cannot be achieved via existing powers. (10 November 2015)

Welsh Government: Draft statutory guidance on “Ask and Act” under section 15 of the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 and section 60 of the Government of Wales Act 2006: seeks views on draft guidance for relevant authorities under the 2015 Act on the implementation of “Ask and Act”, which requires a nuanced approach that provides for effective responses to women and men, accounts for their different experiences and properly addresses their needs. The consultation closes on 27 January 2016. (4 November 2015)

Care and Support (Deferred Payment) (Wales) Regulations 2015 (SI 2015/1841 (W.269)): these regulations, which come into force in Wales on 6 April 2016, prescribe the circumstances in which a local authority must enter into a deferred payment agreement with an adult. This requirement is subject to specified conditions being met. They also provide for the payment of interest and administrative costs, and set out the terms, conditions and information which may be included in a deferred payment agreement. (27 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: PM unveils drive to increase adoptions and cut unacceptable delays: announces measures to increase the number of children adopted and speed up the adoption process. All councils will be required to have plans to join regional agencies by 2017, so that the whole system is in regional agencies by 2020. The Education and Adoption Bill currently before Parliament includes provisions on joint arrangements for carrying out local authority adoption functions in England. (2 November 2015)

DfE: Fees and Frequency of Inspections Regulations 2016 to 2017:  seeks views on proposed changes to the regulations that set out what Ofsted charges social care providers for. The consultation closes on 15 December 2015.  (3 November 2015)

Ofsted: Common weaknesses in local authorities judged inadequate under the single inspection framework – A summary: summary for children's services of common weaknesses that were judged inadequate in inspections between January and May 2015, under the single inspection framework. It aims to help local authorities identify whether they have these or similar weaknesses and improve practice. (12 November 2015)

Re AB (A Child: Deprivation of liberty) [2015] EWHC 3125 (Fam) (Fam D): the issue in this case was whether a parent of a looked after child, or a local authority in the exercise of its statutory parental responsibility under s.33(3)(a) of the Children Act 1989, could consent to a set of circumstances which would otherwise amount to a deprivation of liberty of that child. The court held that, on all the facts in this case, the local authority would be granted permission to invoke the court's inherent jurisdiction and a 14-year-old child's deprivation of liberty at a children's home would be authorised. The court also made observations in respect of children in need or looked after children who might be living in circumstances which amounted to a deprivation of liberty. (28 July 2015)

NA v Nottinghamshire CC [2015] EWCA Civ 1139 (CA): NA brought proceedings against the Council in connection with physical and sexual abuse that she had suffered whilst in foster care. She claimed that the Council was vicariously liable for the torts of the foster carers or that it owed to her a non-delegable duty of care to ensure that she was protected from harm. The judge ruled that it was a crucial and essential feature of foster care that the local authority had no relevant control over the foster parents as to the manner in which, on a day to day basis, the foster parents provided to the child family life, bringing up the child as a member of their own family, and that feature was inimical to the imposition of vicarious liability. He also concluded that it would not be fair, just and reasonable to impose a non-delegable duty of care on the local authority.
The court held, dismissing NA's appeal, that for vicarious liability to exist, there would have to be the necessary relationship between the foster parents and the local authority and the requisite close connection between that relationship and the abuse that they committed. The child's day to day life was in the charge of the foster parents, who were expected to give the child as normal an experience of family life as they could. The degree of independence that this gave the foster parents did not indicate a relationship giving rise to vicarious liability. When considering the liability of a local authority for the exercise of its parental responsibility towards a child in care, the comparison between a local authority and a parent was not necessarily apt because the local authority had to make decisions in relation to the child of a nature which a parent did not have to make. Where it was day to day care by a third party that was under consideration rather than strategic and management decisions on the part of the local authority, the local authority's liability should not be more onerous than a parent's. (12 November 2015)

Care Leavers (Wales) Regulations 2015 (SI 2015/1820 (W.262)): these regulations, which come into force in Wales on 6 April 2016, set out the support that local authorities must give to certain young persons who are no longer looked after, i.e. category 2, category 3 and category 4 young persons (as defined in the Social Services and Well-being (Wales) Act 2014). (21 October 2015)

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

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DCLG: Pocket parks – Support for communities to manage small green spaces: the Pocket Parks programme provides up to £1.5m funding to supports communities to work with local authorities and other partners to establish small areas of inviting public space (<0.4 hectares) where people can enjoy relief from the hustle and bustle of city streets. This page links to the prospectus and application form. The closing date for applications is 10 December 2015. (7 November 2015)

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

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Tilley v Vale of Glamorgan Council [2015] EWHC 3194 (Admin) (Admin Ct): T applied for judicial review of the Council's Cabinet's decision regarding its Library Strategy which included community libraries and reduced opening hours. The Council consulted on the Strategy, stating that it involved a fundamental change to how services were delivered, and changes to library opening hours and included a proposed phased approach to the development of community libraries.
The court held, refusing the application, that regarding the closure of libraries, all the libraries were still open and there was, at the time of the hearing, no operative decision to close any library, and no-one had authority delegated by the Cabinet to take steps to close any library. Therefore this challenge to a decision to close any library was premature. The Council was also entitled to consult on its 'preferred option' of community-led libraries, but the tenor of the consultation document was that the Council had an open mind on what form arrangements for community libraries would take. The consultation was lawful and the decision was not irrational. (5 November 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

LGA: Councillor briefing pack – Cultural commissioning: guidance and advice to councillors on how the commissioning of arts organisations, museums, library  services and heritage organisations to deliver public services outcomes can tap into the energies and expertise of the cultural sector to enhance lives, secure better health and wellbeing, develop skills and employability, and build stronger towns and neighbourhoods. (6 November 2015)

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

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Public Accounts Committee: Devolving responsibilities to cities in England – Wave 1 City Deals: this report urges the Government to provide clarity on accountability, funding and economic impact when it considers wider devolution in England. It follows an examination of aspects of the first wave of City Deals with eight of the largest cities outside London, in 2012. The report  highlights concerns over who is accountable for public funds devolved through City Deals. It cautions that successful devolution through City Deals does not mean it is the best model for wider devolution, particularly when devolving responsibility for public services. The Committee also points to a lack of monitoring and evaluation in the first wave of deals, making it difficult to assess their overall effectiveness. (11 November 2015)

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

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Economic Development

IPPR: The State of the North 2015 – Four tests for the northern powerhouse: this latest State of the North report looks to the long-term future and asks a simple question: How will we know whether the ‘northern powerhouse’ is working? The report assesses the state of the North as it is, but also what it could, and should, aspire to become. It presents an analysis of the North’s strengths and weaknesses, opportunities and threats. (27 October 2015)

London Councils: Building on success – London's town centres: this paper sets out a series of recommendations that would enable and incentivise local authorities to take leadership over the economies and placemaking of their town centres. 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. (23 October 2015)

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

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DfE: Funding for school admission appeals: seeks views on proposed changes to the statutory guidance 'Schemes for financing schools' by adding admission appeals to the list of services that local authorities can charge to local authority maintained schools’ budgets. The consultation closes on 3 December 2015. (5 November 2015)

LGO: Councils must have oversight of transition planning for all pupils with SEN, says Ombudsman: an LGO investigation has highlighted how councils should be aware of their responsibilities for transition planning for young people with Special Educational Needs. The report examines a case where Milton Keynes Council failed to plan properly for the further education of a privately-educated teenager, who had a statement of special educational needs (SSEN). This left him without full-time education for 12 months. The LGO's recommendations include that the Council should review its procedures to ensure that all pupils in years 9 to 11 with SSEN or education, health and care plans have Transition Plans in place and that these are reviewed as required and appropriate support is provided to pupils. (5 November 2015)

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

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Reigate and Banstead BC v Fidler (Unreported, QBD): the court granted the Council's application for committal for contempt of a resident (F) for failure to comply with an order to demolish a mock-Tudor castle. F had built a house in the style of a castle on green belt land, without planning consent, and had hidden it behind straw bales. His appeals against the Council's enforcement notices were unsuccessful. The court stated that the appropriate sanction for non-compliance was three months' imprisonment but the sentence was suspended for six months to enable compliance and would be reactivated for failure to comply. (9 November 2015)
The judgment is available from Lawtel (subscription required).

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

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DCLG: Bellwin scheme of emergency financial assistance to local authorities – Summary of responses and the Government’s response: in November 2014 the Government consulted on proposals for the revised principles of the Bellwin Scheme, following the review group's assessment of what permanent changes were needed to the Scheme in the light of the more frequent and challenging severe weather events. This paper announces that, in light of the responses, the Government has decided to:

  • retain the new lower thresholds and to publish the value of each council’s provisional threshold each year alongside the Local Government Settlement; the Government will also pay 100% costs above the threshold; 
  • permanently treat Upper Tier authorities with responsibility for Fire on an equal base to local authorities with standalone Fire authorities;
  • shorten the time period for eligible spending to one month from when a particular incident is deemed to have ended, not from the start of the incident, while the period for preparing claims will be extended by a further month;
  • Widen the type of costs that can be claimed to include some forms of capital , so that the scheme is more flexible; and 
  • amend the scheme guidance to better explain how the Bellwin Scheme operates, including further clarity on what is considered eligible expenditure.

(6 November 2015)

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

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Fire and Rescue Authorities

NAO: Financial sustainability of fire and rescue services: this report finds that fire and rescue authorities have managed funding reductions well since 2010. There have been no financial failures and the numbers of fires and casualties have continued to fall. These improvements are despite significant reductions to numbers of firefighters and prevention and protection activities over the same period. The NAO advises that DCLG needs to have a better understanding of the appropriate funding level necessary to support services, in order to maintain the financial sustainability of the sector in the context of funding cuts.  It should also seek greater assurance that authorities are maintaining service standards and delivering value for money locally. (5 November 2015)

NAO: Impact of funding reductions on fire and rescue services: this report  takes an in-depth look at how fire and rescue authorities have responded to declining budgets since 2010-11. The NAO warns that if funding reductions were to continue in future years, the sector would be faced with twin challenges: to implement new cost-reduction measures, and to manage increased risks. Where cost reduction leads to further reductions in operational capacity, it may lead to risks such as to firefighter safety, the potential shrinking of the service as a whole, and the possibility of industrial action. Among the NAO’s recommendations is that DCLG should assess the likely impacts of different types of service transformation on cost reduction and service improvement. (5 November 2015)

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

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R (Omar) v Wandsworth LBC (Unreported, Admin Ct): O challenged the Council's refusal to provide her with interim accommodation. O suffered from asthma; she argued that herr acute asthma attacks made her a vulnerable person for the purposes of assessing housing needs. The court held, refusing her application, that the Council had been entitled to conclude that asthma attacks did not advance O's contention that she was a vulnerable person. She was receiving standard medication for the condition and it was impossible to see anything unusual about her treatment. (11 November 2015)
The judgment is available from Lawtel (subscription required).

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

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Judicial Review

Dudley Muslim Association v Dudley MBC [2015] EWCA Civ 1123 (CA): the DMA, a community association, appealed against the court's decision to strike out its defence to the council's claim for specific performance of a contractual obligation to transfer a site back to the Council if development was not completed by a specified date. The DMA argued that it had a legitimate expectation that it would be allowed to develop the site, and that the Council's claim was an abuse of its power.  
The court held, dismissing the appeal, that this was a purely contractual dispute, and the DMA's argument that they were not trying to enforce a contract but were resisting enforcement by the Council was not a valid distinction. There was no public law defence available to the DMA based on legitimate expectation or a general appeal to abuse of power. If the DMA could not assert a variation of the contract or a promissory estoppel, the contract was enforceable according to its terms. The DMA's obligation to transfer the site to the Council in the event of non-completion of the development by the contractual deadline was a contract for the disposition of an interest in land and so had to comply with the requirements of s.2 of the Law of Property (Miscellaneous Provisions) Act 1989. Regarding the abuse of power claim, this was another way of seeking to inject public law defences into what is in essence a private law claim. In abuse of power cases what was in question was the exercise of a statutory power and whether the power was being exercised for the purposes contemplated by the statute and proportionately on the facts of the individual case. But this case dealt with contractual rights and obligations and it could not usually be an abuse of power to exercise contractual rights freely conferred, even if the result might appear to be a harsh one. (5 November 2015)

R (Logan) v Havering LBC [2015] EWHC 3193 (Admin) (Admin Ct): L challenged the legality of the Council's council tax reduction scheme and the means by which it was adopted. The principal ground of his claim was that full Council had failed to have due regard to the Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010 as it had failed to provide every member with the report to Cabinet and the Equality Impact Assessment (EIA). He also claimed discrimination on the basis of disability and/or age contrary to Art.14 ECHR.
The court held, granting the application in part, that the scheme did not breach Art.14. Any indirect difference in treatment on the grounds of age or disability was justified. The EIA was not defective as contended; however, there was insufficient evidence to support the conclusion that due regard was had to the EIA by those who took the decision. There was sufficient vindication of the public interest and L's rights for that conclusion to be stated in a declaratory judgment and no other formal relief was needed. (6 November 2015)

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

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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 Act requires a Welsh local authority to appoint a director of social services (DSS) for the purposes of its social services functions. The DSS will be accountable for the quality and delivery of services and play a crucial role in securing the essential political and corporate support for social services. A local authority may not appoint a person to be its DSS unless it is satisfied that the person has demonstrated competencies specified by the Welsh Ministers in a Code of Practice or regulations. This paper seeks views on the draft Code of Practice on the DSS role. 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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Public Health

LGA: Healthy beginnings: Giving our children the best start in life: discusses how the transfer of public health commissioning responsibilities for under-fives to local government marks a tremendous opportunity. It brings a new momentum for developing and driving forward a shared vision for local children, young people and families. (9 November 2015)

DH: Transfer of 0 to 5 children's public health commissioning to local authorities – Data and information factsheet 2: Data sharing: this factsheet offers support on the regular sharing of aggregated information between local authorities, local authorities and providers, local authorities and CCGs, local authorities and CSUs. (6 November 2015)

DH: Registered versus residency – Approaches to managing and resolving registered and resident population issues: clarifies issues relating to registered and resident populations which may be preventing progress from being made on the transfer of commissioning arrangements for 0-5 year old children's public health services. (12 November 2015)

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

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Regulatory Services

BRDO: Talking business – Growth: Telling the regulators' story: this online toolkit provides a guide to regulatory services operated by local councils. It highlights regulators’ role in encouraging growth, and encourages local authority communications teams to tell this story. (6 November 2015)

DCLG: Tackling rogue landlords and improving the private rental sector – Government response: sets out the outcome of the August 2015 consultation on proposals to tackle rogue landlords and letting agents as well as abandonment in the sector where a tenant disappears. In light of responses received, the Government is now implementing its proposals, including:

  • a more stringent ‘fit and proper’ person test for landlords letting out licensed properties, such as HMOs;
  • enabling local authorities to issue civil penalty notices of up to £5,000 as an alternative to prosecution for certain breaches of housing legislation, with revenue from penalties to be retained by the local authority;
  • extending Rent Repayment Orders to cover situations where a tenant has been illegally evicted, the landlord has breached a banning order or has failed to rectify a serious health and safety hazard in the property. Local authorities would be permitted to retain that money for housing purposes where the rent was paid through Housing Benefit or Universal Credit.

DCLG has also announced £5m funding for 65 councils to stop rogue landlords and tackle ‘beds in sheds’. (11 November 2015)

DCLG: Extending mandatory licensing of Houses in Multiple Occupation (HMOs) and related reforms: this technical discussion paper sets out options for extending the scope of mandatory licensing of HMOs, along with proposals to streamline the HMO licensing process. The consultation closes on 18 December 2015. (6 November 2015)

Home Office: Section 53A Licensing Act 2003 – Summary review guidance: updated guidance on how to use the provisions in the 2003 Act inserted by s.21 of the Violent Crime Reduction Act 2006. These allow a quick process for attaching interim conditions to a licence and a fast-track licence review when the police consider that the premises concerned is associated with serious crime or serious disorder (or both). (12 November 2015)

LGA: Councils count the cost of removing fly-tipping and abandoned shopping trolleys: the LGA is calling for supermarkets to work with councils to combat the trolley thieves and tackle the issue of abandoned trolleys at source. It wants the system for claiming the costs of removal, storage and disposal of abandoned carts from trolley owners to be streamlined so it is quick and easy for councils to get compensation. This article includes three case studies of action taken by councils to combat abandoned trolleys. (24 October 2015)

ParkingEye Ltd v Beavis [2015] UKSC 67 (Sup Ct): the Supreme Court has ruled that  the imposition of a charge for overstaying an applicable car park 'free stay' period could be enforceable even though its primary function was to deter a breach of contract. The appellant had argued that the £85 charge was unenforceable at common law as a penalty, and/or that it was unfair and unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999. The Supreme Court dismissed the appeal, thus upholding the validity of the penalty clause. It re-stated the well-established principles of the law on penalties. (4 November 2015).
For a detailed summary of the case and commentary on the judgment, see our alert: 100 year law changed: parking charge not a penalty.

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

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DfT: Regions to be offered legal powers to transform transport: announces that Transport for the North (TfN) is to become a statutory body with legal powers and duties. The DfT states that TfN will be the first of the sub-national transport bodies to become a statutory body but other areas, such as the Midlands, may also request to become one once Royal Assent has been achieved. (11 November 2015)

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

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