Authority Update

Authority Update

27/11/2015

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:  

   Access to Information    Environmental Services
   Adult Social Services    Finance
   Children's Services    Health and Social Care
   Commons and Village Greens    Highways
   Community Infrastructure Levy    Housing
   Delivery of Services     Local Government Reform
   Devolution    Neighbourhood Planning
   Economic Development    Pensions
   Education    Public Health
   Emergency Planning    Regulatory Services

Access to Information

Hewlett v Information Commissioner (Freedom of Information Act 2000) [2015] UKFTT 2015_0077 (FTT-GRC): H complained to the Information Commissioner about Beccles Town Council's refusal to disclose various documents, including a counsel’s opinion, advice, map and statutory declaration, that were mentioned in an agenda in connection with the registration of charitable land that was held by the Town Council in trust for the town's inhabitants. The Council supplied the map but claimed that the other documents were exempt under s.42 FOIA (legal professional privilege). The Commissioner determined that the legal professional privilege (LPP) exemption had been appropriately claimed and that the public interest balancing exercise in s.2(2) FOIA favoured upholding the exemption rather than requiring disclosure.
The tribunal held that, whilst acknowledging and embracing the principle that there was a strong inherent public interest in maintaining LPP, this was one of those rare and exceptional cases where the public interest favoured disclosure. As a general proposition there must be such cases otherwise the FOIA would have made LPP an absolute and not a qualified exemption. Here, LPP had been appropriately claimed but the public interest favoured disclosure rather than the maintenance of the exemption. It was a highly relevant factor that the land in relation to which the public authority had sought advice was not land owned by the public authority but land held in trust for the inhabitants of Beccles. The advice received was therefore about a public asset in which the people of Beccles had a clear and direct interest rather then, e.g. an office block owned by the council where the public interest was far more indirect. There was clear evidence of general inappropriate behaviour by the Council's predecessors in relation to the loss of trust land, which should be subject to openness and scrutiny and not secrecy. (18 November 2015)

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

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Adult Social Services

London Councils: Adult social care in London: this publication considers: who the users of adult social care in London are; how the adult social care market works; who the key players in the adult social care market are; and the key characteristics of the workforce. It also addresses issues regarding the funding of adult social care. It provides information on some of the key challenges currently characterising adult social care in London in the context of the Government’s 2015 Spending Review. (18 November 2015)

Care and Support (Choice of Accommodation) (Wales) Regulations 2015 (SI 2015/1840 (W.268)): these regulations, which come into force in Wales on 6 April 2016, apply to cases where a local authority is meeting care and support needs of adults and children under Part 4 of the of the Social Services and Well-being (Wales) Act 2014 through the provision of care home accommodation. (3 November 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

County Councils Network: Delivering children's services in difficult times: this report uses the results of a survey of CCN member councils, supported by statistical analysis, to highlight the demands and pressures facing children’s services in county areas. It also includes a number of think pieces on the challenges and opportunities for county children’s services over the course of this Parliament from leading figures in the sector, with a good practice examples in areas such as adoption, Troubled Families and the journey from an ‘Inadequate’ Ofsted inspection to a ‘Good’ judgement. (16 November 2015)

Visits to Children in Detention (Wales) Regulations 2015 (SI 2015/1823 (W.265)): these regulations, which come into force in Wales on 6 April 2016, set out the visiting requirements for specified children who, having been convicted of an offence by a court, are detained in youth detention accommodation or in prison, or are required to reside in approved premises. Section 97(3) of the Social Services and Well-being (Wales) Act 2014 imposes a duty upon the responsible local authority to visit, have contact with and to provide advice and other support for such a child. (23 October 2015)

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

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Commons and Village Greens

DEFRA: Common land consents policy: sets out the Secretary of State’s policy on what should be considered when making a decision on consents for common land, town or village greens under the Commons Act 2006. The policy applies equally to applications for deregistration and exchange under s.16(1), and for consent to works under s.38(1). (16 November 2015)

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

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Community Infrastructure Levy

DCLG: Community Infrastructure Levy review – Questionnaire: the review group is assessing the extent to which CIL does or can provide an effective mechanism for funding infrastructure, as well as recommend changes that would improve its operation in support of the Government’s wider housing and growth objectives. It has issued a call for evidence to inform their work. The closing date for written submissions is 24 December 2015. (19 November 2015)

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

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Delivery of Services

Reform: Towards a more productive state: this report calls for the Government to take a fresh approach to public sector productivity. It outlines the limitations of measuring productivity across whole sectors, such as health and education, rather than comparing productivity across organisations, such as hospitals and schools. It argues for a more coherent approach to reform that considers outcomes, rather than outputs, as the main goal of public services. (19 November 2015)

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

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Devolution

Cities and Local Government Devolution Bill: the Bill has now completed the Committee stage, and has been re-issued as amended in Committee. There is also a tracked changes version showing changes made in Committee. The next stage is the Report and 3rd Reading, for which no date has yet been set. (18 November 2015)

HM Treasury: Liverpool City Region devolution agreement: sets out a devolution deal giving Liverpool City Region greater control over transport, skills, business support and other areas. (17 November 2015)

HM Treasury: West Midlands Combined Authority devolution agreement: sets out a devolution deal giving the proposed West Midlands Combined Authority greater control over transport, skills, business support and other areas. (17 November 2015)

HM Treasury: Devolution to the Greater Manchester Combined Authority and transition to a directly elected mayor: update on progress with devolving new powers and responsibilities to Greater Manchester, and Greater Manchester adopting a directly elected Mayor for the city region. (25 November 2015)

IPPR: Empowering counties – Unlocking county devolution deals: this report considers how the decentralisation process is impacting on England's counties, and how these diverse areas can boost their economies and improve their services by securing locally-specific powers and governance arrangements. It draws upon case studies from five county areas that are in the process of developing innovative and creative models for governance that will enable their local councils and other public bodies to better work together, and describes some of the fundamental tensions and issues that have emerged from the process of submitting devolution bids to central government. (17 November 2015)

The King's Fund: Devolution – What it means for health and social care in England: ahead of further devolution deals expected to be announced as part of the Spending Review 2015, this briefing describes the origins of the devolution agenda and charts its progress in relation to health and social care. Before drawing some broad conclusions, the penultimate section explores some of the key policy and implementation questions that remain unresolved. (11 November 2015)

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

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Economic Development

DCLG: The new Enterprise Zones: announces 18 new Enterprise Zones and the extension of eight zones, bringing the total of Enterprise Zones in England to 44. (25 November 2015)

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

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Education

DfE: Governance handbook: revised departmental advice outlining the roles and duties of school governors and academy trusts. It has been updated to reflect changes to the law and education policy, including the ‘prevent’ duty and what schools must publish online.(26 November 2015)

DfE: Out-of-school education settings – Call for evidence: seeks views on a proposed system for registering and inspecting education settings providing intensive tuition, training or instruction to children outside of school. These settings are often, but not exclusively, supplementary schools and tuition centres. The consultation closes on 11 January 2016. (26 November 2015)

Welsh Government: Producing a new Travel Behaviour Code: seeks views on a draft Code that sets out the rights and responsibilities of learners when travelling, provides advice on how to ensure a safe journey, and sets out a legal framework for the removal of transport from learners who are in breach of the Code. It will apply to all learners aged 5-19 regardless of the mode of travel from home to school (or between schools). The consultation closes on 10 February 2016. (18 November 2015)

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

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Emergency Planning

LGA: A guide for communicating during extreme weather: guidance on developing a council-wide communications strategy to help a council prepare for, and react to, extreme weather and to ensure that it is able to communicate effectively with its residents. It includes examples of good practice and where to find further help and support. (17 November 2015)

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

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Environmental Services

DEFRA: Review of Local Air Quality Management: Changes to guidance and reporting: seeks views on proposed changes to guidance and reporting for the Local Air Quality Management (LAQM) framework in England. it includes new LAQM policy guidance and new technical guidance. These detailed measures have been developed following input from the 2014 LAQM review overview consultation. The consultation closes on 21 January 2016. (26 November 2015)

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

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Finance

HM Treasury: Spending Review and Autumn Statement 2015: the Chancellor has published his Spending Review, setting out Government money will be allocated over the next five years. Key points for local government are:

  • there is a cash terms rise from £40.3bn to £40.5bn in 2019 to 2020 with councils having almost £200bn over the course of this Parliament to spend on local services. This represents a fall of just 1.7% per year in real terms over the Spending Review period.
  • More powers and greater flexibility for town halls to take control of their finances while protecting vital public services and boosting adult social care through a £3.5bn investment to help support the most vulnerable. This comes from:
    • a social care Council Tax ‘precept’ of 2% will allow councils responsible for delivering adult social care to raise up to £2bn a year by 2019 to 2020;
    • £1.5bn available to local authorities for social care services.
  • Reforms to business rates: uniform business rate will be abolished and local government will get to keep revenue from business rates by the end of the Parliament. Councils will be able to keep 100% of receipts on assets they sale to spend on local services.
  • To reform services and make them more efficient, a package of new flexibilities will be introduced to encourage local authorities to release surplus assets.
  • Local authorities will be able to spend 100% of their fixed asset receipts investing in making services more efficient.
  • The Government will also issue new guidance to encourage local authorities to rein in excessive salaries.

See also the DCLG press release: Local government funding at the Spending Review 2015 and the LGA's On the Day Briefing. (25 November 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

DH: NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2015 – Government response: sets out the Government's response to the February 2015 consultation on proposed amendments to the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000. The Government has decided to proceed to amend the 2000 Regulations so as to provide a route for NHS England, CCGs and local authorities to use a pooled fund to jointly commission additional primary medical services for areas. (19 November 2015)
See also the NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2015 (SI 2015/1940), in force 1 April 2016, which implement the changes.

Care and Support (Review of Charging Decisions and Determinations) (Wales) Regulations 2015 (SI 2015/1842 (W.270)): section 59 of the Social Services and Well-being (Wales) Act 2014 gives local authorities in Wales a discretionary power to impose a reasonable charge where care and support are being provided under the Act. These regulations, which come into force in Wales on 6 April 2016, provide for the review of charging decisions and determinations made by a local authority under the 2014 Act. (3 November 2015)

Care and Support (Financial Assessment) (Wales) Regulations 2015 (SI 2015/1844 (W.272)): these regulations, which come into force in Wales on 6 April 2016, set out the way in which a local authority must carry out a financial assessment of a person’s financial resources under the Social Services and Well-being (Wales) Act 2014. (3 November 2015)

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

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Highways

Basildon BC v James [2015] EWHC 3365 (Admin) (Admin Ct): residents of a housing estate appealed to the magistrates' court against the Council's decision to rename a number of the streets on the estate following redevelopment, using its powers under s.18 of the Public Health Act 1925. About 50% of the residents objected to the renaming. The District Judge upheld the appeal. In his reasons, he stated that in the absence of authority, and given the very wide discretion provided for by s.8 of the Public Health Act 1925 on appeals, he had drawn assistance from an analogous situation where the magistrates' court sits as an appellate authority concerned with the functions of a local council, namely licensing matters. He concluded that the perceived advantages of the Council's scheme were limited. Its observations about logic, clarity and utility were imperfect and the limited advantages did not outweigh the negative response of those directly affected by the changes or historical considerations. The wishes and feelings of residents were hugely important and a factor of which the Council was either unaware or did not take proper notice. The Council appealed.
The court held, allowing the appeal, that the power under s.18 demanded a subjective judgement by the Council - essentially, Parliament had given the Council the right to choose a name for any street. It was the Council who makes the primary decision. The right of appeal given by s.8 to "those aggrieved" did not change the identity of the primary decision maker. Section 8 provided an unrestricted right of appeal; but a District Judge was obliged to pay great attention to the opinion of the Council as the duly constituted and elected local authority and should not lightly reverse their conclusion; his function was to exercise the s.8 powers only if he was satisfied that the judgement of the Council could be shown to be wrong, not merely because he was not satisfied that the judgement was right; he could only substitute his opinion for that of the Council if he was first satisfied that the Council was wrong. Here, the District Judge was right to say that the Council's opinion on the issue was a matter to which careful attention was required; and he was right to say that the burden of proof was on the residents. But he fell into error when he applied those principles to the facts before him; he also failed clearly to identify where he said the Council had gone wrong.
The court remitted the matter to the District Judge to reconsider his decision in the light of its judgment. (26 November 2015)

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Housing

Renting Homes (Wales) Bill: this Bill has been passed by the National Assembly and is awaiting Royal Assent. The Bill reforms the legal basis for renting a home from a private landlord or community landlord, including local authorities and registered landlords. It replaces all current tenancies and licences with just two types of occupation contract: a secure contract, modelled on the current secure tenancy issued by local authorities, and a standard contract, modelled on the current assured shorthold tenancy used mainly in the private rented sector. The Bill will require landlords to issue a written statement of the occupation contract which clearly sets out the rights and responsibilities of landlords and those renting from them. To help landlords comply with this requirement, the Welsh Government will provide free model contracts. There will be a minimum six-month occupation period and landlords will have to ensure the property is fit for human habitation. The Bill will also help protect people from being evicted simply for complaining about the condition of a property. (17 November 2015)

Bokrosova v Lambeth LBC [2015] EWHC 3386 (Admin) (Admin Ct): the Council consulted the tenants of a housing estate on options for bringing properties on the estate up to the authority's housing standard. The options included: refurbishment of some or all of the homes; refurbishment and some demolition and redevelopment; and complete redevelopment. The Council then informed the residents that it was not proceeding with the first three options for refurbishment as the lowest cost for refurbishment of the whole estate was three times what it could afford and it would not be right to continue to consult about an option which was simply unaffordable and could not happen. Instead, it would only look at the two redevelopment options. B, a tenant and a resident of the estate, sought judicial review of that decision, contending that the Council was in breach of s.105 of the Housing Act 1985 and of the common law requirements for a lawful consultation as it did not conscientiously take into account the views of residents expressed in response to the information pack and other information provided at workshops and meetings.
The court held, granting the application, that the s.105 arrangements consisted of the detailed and sophisticated programme of consultation which was announced in the letters to residents. The Council's decision reneged on those arrangements, and it meant that the Council was unable, before making a decision on the regeneration of the estate, to consider the representations which would have been generated had the arrangements been followed. The Council could have stopped the consultation if there had been a sufficiently important change of circumstances but the court was not satisfied that enough had changed to entitle the Council to stop consulting on options 1, 2 and 3, contrary to the terms of the s.105 arrangements it had published. By deciding to remove options 1, 2 and 3 from the consultation, the Council had acted unlawfully. (24 November 2015)

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

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Local Government Reform

Welsh Government: Draft Local Government (Wales) Bill and Explanatory Memorandum: seeks views on a draft Bill that would establish new counties and their councils in Wales by the merger of two or more existing County or County Borough Councils and to establish a new and reformed legislative framework for local government democracy, accountability, performance and finance. The proposals include giving Welsh authorities a new General Power of Competence. The consultation closes on 15 February 2016. (24 November 2015)

Local Government (Wales) Act 2015: this Assembly Act has received Royal Assent. The Act is intended to allow for certain preparatory work to enable a programme of local government mergers and reform and include provisions to facilitate the voluntary early merger of two or more principal local authorities by April 2018. The Act also amends the Local Government (Wales) Measure 2011 relating to the Independent Remuneration Panel for Wales and the survey of councillors and unsuccessful candidates, and the Local Government (Democracy) (Wales) Act 2013 relating to electoral reviews. Sections 25-28 and ss.37-43 come into force on 25 January 2016; the remainder come into force on a day or days to be appointed.  (25 November 2015)

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

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Neighbourhood Planning

DCLG: Neighbourhood planning and local planning – Service redesign and capacity building: Prospectus: announces a new £600,000 challenge fund to enable local authorities to make changes to their planning service to help them deliver neighbourhood and local plans. The closing date for applications is 18 December 2015. (20 November 2015)

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

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Pensions

DCLG: Local Government Pension Scheme – Revoking and replacing the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2009: seeks views on draft Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 that revoke and replace SI 2009/3093 which govern the management and investment of funds. There are two areas of reform:

  • a package of reforms that propose to remove some of the existing prescribed means of securing a diversified investment strategy and instead place the onus on authorities to determine the balance of their investments and take account of risk; 
  • the introduction of safeguards to ensure that the more flexible legislation proposed is used appropriately and that the guidance on pooling assets is adhered to. This includes a suggested power to allow the Secretary of State to intervene in the investment function of an administering authority when necessary.

The consultation closes on 19 February 2016.
DCLG has also invited local government pension scheme administering authorities to come forward with proposals to invest their assets through pools of at least £25bn to achieve cost savings and the benefits of scale. (25 November 2015)

London Councils: UK’s first local government Collective Investment Vehicle fully authorised: announces that the Financial Conduct Authority has authorised London CIV, an Authorised Contractual Scheme that will enable the London authorities to achieve unprecedented economies of scale and potentially enable access to opportunities for investment in alternative asset classes that may not have previously been easily achievable for individual funds. (23 November 2015)

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

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Public Health

King's Fund: The district council contribution to public health – A time of challenge and opportunity: this independent report commissioned by the District Councils’ Network aims to contribute to the understanding, assessment and development of the role of district councils in improving the health of their citizens and communities. It focuses on district councils’ role in promoting public health through some of their key functions and enabling roles. The report argues that district councils ought to be part of the mainstream public health policy discourse as they not only affect public health through their direct roles and functions but also through their power to influence other bodies such as county councils, the local NHS, and health and wellbeing boards. (19 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

DfT: Secretary of State’s statutory guidance to local authorities on the civil enforcement of parking contraventions: updated guidance on how to approach, carry out and review parking enforcement. It includes new and revised sections on local authority enforcement activities and parking enforcement. (20 November 2015)

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

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