Authority Update 26/2/16

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.


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    Employment
   Byelaws   Energy
   Children's Services   Fire and Rescue Authorities
   Combined Authorities   Governance
   Communities   Health and Social Care
   Decision Making   Housing
   Development Control   Licensing
   Devolution   Policy
   Economic Development   Procurement
   Education   Public Health

Adult Social Services

ACEVO: Time for change – The challenge ahead: this report by Sir Stephen Bubb follows on from his original report into the Winterbourne View scandal. His recommendations included radical changes to the way the nation treats people with learning disabilities. He now concludes that subsequent proposals to deliver these changes are based on over-optimistic assumptions and he demands the appointment of a Learning Disabilities Commissioner who would have a statutory duty to promote, enhance, and protect the rights of people with learning disabilities and their families in England and ensure the delivery of the reforms. (22 February 2016) 

Social Services Codes (Appointed Day) (Wales) Order 2016 (SI 2016/142 (W.67)): this Order brings a number of Codes of Practice on the exercise of social services functions into force in Wales on 1 April 2016. (8 February 2016)

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

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Byelaws (Alternative Procedure) (England) Regulations 2016 (SI 2016/165): these regulations, which come into force on 3 March 2016, put in place new arrangements for the revoking and making of byelaws. Under the new arrangements, certain byelaws are no longer confirmed by the Secretary of State but are instead revoked or made by authorities after consultation with those affected by the proposed byelaw and following a deregulatory assessment by the authority. The Regulations do not give authorities powers to create new categories of byelaws; what is new is that following leave to proceed to make the byelaw by the Secretary of State for Communities and Local Government, there is no requirement for subsequent confirmation by the Secretary of State. Under the alternative procedure, authorities will undertake a two stage process for byelaw preparation and consultation before advertising and making a new byelaw. As such the resolving of any objections and the bringing into force of certain byelaws will be undertaken locally. (11 February 2016) 

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

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Children's Services

Home Office: Statutory definition of child sexual exploitation: seeks views on proposals to provide clarity on the definition of child sexual exploitation (CSE) as a form of child sexual abuse. This will ensure that all professions are using the same definition of CSE, as they create joint risk assessments and work together to target disruption and investigate offending. The consultation closes on 11 March 2016. (12 February 2016) 

Transparency Project: Section 20 of the Children Act 1989 – A guidance note for parents & professionals: the Transparency Project aims to promote the transparency of Family Court proceedings in England and Wales through providing straightforward, accurate and accessible information for litigants and the wider public. It has published guidance for parents, foster carers and professionals (e.g. social workers) on understanding when Section 20 accommodation can be used and the implications of using or misusing it. The use (and misuse) of Section 20 accommodation has been the subject of recent significant judicial criticism and media comment. It is clear that problems arise when children 'drift' in the care system under Section 20 without proper plans being made for their future, or when parents feel they were under pressure to agree to Section 20 accommodation without fully understanding the consequences. (24 February 2016)

Ofsted: Guidance for inspectors – What to do if a child or young person discloses a safeguarding concern: an Ofsted inspector may learn during an inspection that a child or young person is being harmed or at risk of harm. This guidance explains what the inspector should and should not do. (25 February 2016)

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

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Combined Authorities

Draft Tees Valley Combined Authority Order 2016: this draft Order establishes the Tees Valley Combined Authority from 1 April 2016 for the exercising of transport, economic development and regeneration functions across the local government areas of Darlington, Hartlepool, Middlesbrough, Redcar & Cleveland, and Stockton-on-Tees. (18 February 2016)

HC Library: Combined authorities: this briefing note outlines the origins and structures of combined authorities, which will handle many of the devolution deals agreed between the Government and local areas in England. It looks at the legal structure under the Local Democracy, Economic Development and Construction Act 2009 and the Cities and Local Government Devolution Act 2016 and discusses plans for new combined authorities. (20 January 2016)

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

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DCLG: Green light given to over 80 pocket parks: announces that 87 community groups have each been allocated grants of up to £15,000 to create a "pocket park" – a piece of land of up to 0.4 hectares for use as public open space. (15 February 2016)

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

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Decision Making

Cabinet Office: Consultation principles 2016: the Government has published a revised set of Consultation Principles that give clear guidance to government departments on conducting consultations. The Principles replace the 2012 Principles (updated November 2013) which in turn replaced the 2008 Code of Practice on Consultation, and have been amended in the light of comments from the Secondary Legislation Scrutiny Committee and to demonstrate the Government’s desire to engage more effectively with the public. In particular, the 2012 Principles' minimum consultation period of two weeks has been removed following criticism from the Scrutiny Committee that a two-week consultation would be "unworkable". The new Principles now recommend that departments consult for a "proportionate amount of time" taking into account legal advice and the nature and impact of the proposal. Whilst the Principles are primarily focused on government departments, they apply to other public sector organisations as well so local authorities' consultation procedures should reflect these latest guidelines. (14 January 2016)
We have published an alert What should a consultation look like? that highlights key points in the new Principles.

LGO: Transparency key to maintaining trust in planning decisions: the LGO has warned local authorities that decision making should be as open and transparent as possible, particularly in the face of public opposition. Planning committees should record the reasons for their decisions clearly – this is particularly important when they make decisions that conflict with officers’ recommendations. This advice is contained in a report on Erewash BC in which the LGO recommends that the Council apologise to the neighbours for failing to publicise the application as a departure from the local plan and for also not giving reasons for the decision to grant planning permission. It also states that the council should also review its working practices and procedures to ensure it properly records the reasons for its decisions and provide training to members on giving proper reasons for their decisions. (18 February 2016)

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

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Development Control

DCLG: Consultation on upward extensions in London: seeks views on proposals to increase housing supply in London by building upwards while protecting open spaces and the green belt. It proposes three complementary ways to encourage building upwards, by adding a limited number of storeys to existing buildings. The consultation closes on 15 April 2016. (18 February 2016)

DCLG: Technical consultation on implementation of planning changes: seeks views on the proposed approach to implementing planning provisions in the Housing and Planning Bill. It includes proposals to test the benefits of competition in the processing of planning applications – these benefits could increase local choice by giving applicants the choice of whether to submit their plans to the local council, a competing council or a government approved organisation that would process applications up until the decision point. Councils will also be able to offer the fast track planning application service, either through competition pilots or potentially through devolution deals. Decision making on planning applications would remain with the local council to ensure decisions are taken locally and maintain the democratic link between local people and decision makers. The paper also includes proposals to make any future increases in councils’ fees for processing planning applications dependent on their performance in terms of speed and quality of decisions. The consultation closes on 15 April 2016. (18 February 2016

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

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LGA: Get in on the Act – Cities and Local Government Devolution Act 2016: the 2016 Act provides the legal framework for the implementation of devolution deals with combined authorities and other areas. It is an enabling piece of legislation, with further details for different areas to be set out in regulations that will be put before Parliament. This guide provides an introduction to the Act and summarises the main issues on which the LGA campaigned. (19 February 2016)

NALC: Devo Local – A white paper for empowering and strengthening local democracy: sets out a range of proposals to support devolution by empowering and strengthening the most local level of democracy, community organising and social action in England – parish and town councils. (12 February 2016)

HC Library: Devolution to local government in England: this research note summarises the main political developments and political party positions on the devolution of powers to local government. It covers the devolution deals agreed to date between the Government and local areas and reactions to them, plus the positions of the political parties going into the 2015 General Election. (20 January 2016) 

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

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Economic Development

DCLG: New body to secure investment for Tees Valley: announces plans to create a new Mayoral Development Corporation (MDC) to drive forward regeneration and local economic growth in the Tees Valley area. The MDC will follow a similar model to the London Legacy Development Corporation. An advisory board will be established to provide leadership and direction to the MDC for the regeneration of sites across Tees Valley and Ministers will work with local partners to appoint members for the board. This means work will begin immediately to deliver a key part of the area’s recent devolution deal. (19 February 2016)

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

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DfE: Counselling in schools – A blueprint for the future: departmental advice for primary and secondary schools in England on setting up and improving counselling services for pupils. It will also be of interest to NHS providers and local authority commissioners of counselling and other forms of psychological support. (17 February 2016)

School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016 (SI 2016/204): these regulations, which come into force on 18 March and 1 September 2016, amend the constitution requirements of the governing bodies of maintained schools to require them to apply for an enhanced criminal record certificate in respect of any of their governors who do not currently hold one. They also amend the requirements on the constitution of federations by requiring governing bodies to have two parent governors. (25 February 2016)

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

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HC Library: "Purdah" before elections and referendums: this briefing discusses the specific restrictions on the use of public resources that are in place during the "purdah" period before elections and referendums. The term “purdah” is in use across central and local government to describe the period of time immediately before elections or referendums when specific restrictions on the activity of civil servants are in place; the term "pre-election period" is also used. It includes discussion of the Cabinet Office guidance for civil servants on their role and conduct during election and referendum campaigns, and the statutory guidance for local authorities about publicity during the period just before local elections in the Code of Recommended Practice on Local Authority Publicity. (23 February 2016)

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

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Cabinet Office: Draft language requirements for public sector workers code of practice: Part 7 of the Immigration Bill currently before Parliament establishes a new duty for public authorities to ensure that their workers in customer-facing roles speak fluent English or, for appropriate public authorities operating in Wales, fluent English and/or Welsh. In October 2015 it consulted on a draft Code of Practice to support public authorities to comply with this new legal duty. This response states that the Government has taken into account suggested changes to the Code of Practice in response to the evidence and observations made by organisations through the consultation. A balanced view has been taken to appropriately supplement and revise the Code as necessary and ensure public authorities have sufficient guidance to meet the duty. (19 February 2016) 

LGA: Investigating and improving the HR and OD capability in shared councils: this report summarises the findings from a major study undertaken by the Institute of Employment Studies for the LGA, involving 10 council shared partnerships covering 23 councils. It sets out how strategic and practical Human Resources (HR) and Organisational Development (OD) approaches have underpinned new shared service arrangements and what they can do to help councils wishing to exploit this further. It also shows basic HR practice is generally excellent, but more attention could be given to strategic OD in order to transform services effectively through sharing arrangements. (23 February 2016)

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

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LGA: The potential for energy efficiency and renewable energy: this report highlights the opportunities for councils in England to make financial savings and increase revenue through energy efficiency measures and renewable energy generation schemes. The focus is on income that can be realised in the short term, to help councils reduce their costs and find new sources of income, i.e. council owned assets and operations where the council pays the energy bill or renewables projects within their boundary where the council can bring in a revenue stream. The report also considers schools and leisure centres as councils still play an important support role in energy matters despite outsourcing, devolved budgets and an increasing numbers of academies. (12 February 2016)

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

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Fire and Rescue Authorities

HC Public Accounts Committee: Financial sustainability of fire and rescue services: this report warns that risks to the sustainability of fire and rescue services could increase, given the Government’s decision to implement further funding cuts from 2016/17. While fire and rescue authorities have done well to absorb funding reductions since 2010, risks to their financial and service sustainability could increase given the Government’s decision to implement further funding reductions from 2016–17. DCLG has not had a strong understanding of the capacity of individual fire authorities to absorb further reductions through efficiency savings, or of the impact of reducing fire prevention work. By not providing more active support and guidance, DCLG exacerbated the risk that fire authorities would miss opportunities to improve value for money,  e.g. through greater collaboration or mergers, and that the projects they do implement may not represent best practice. Following the handover of responsibility from DCLG to the Home Office, it urges the Home Office to set out what it is doing to improve this. It also highlights concerns about the way authorities’ operational performance and value for money are scrutinised, finding the standard of local governance and accountability to be "variable". (17 February 2016)
See also the Transfer of Functions (Fire and Rescue Services) Order 2016 (SI 2016/162), in force 1 April 2016, which provides for the transfer of property, rights and liabilities from the Secretary of State for Communities and Local Government to the Home Secretary in consequence of the transfer of fire and rescue services functions from DCLG to the Home Office.

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

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DEFRA: Membership of the Lake District and Yorkshire Dales National Park Authorities: the Secretary of State has approved extensions to the Lake District and Yorkshire Dales National Parks which will take effect on 1 August 2016. It is now seeking views on proposals to increase the membership of the Yorkshire Dales NPA by three members and to leave the membership of the Lake District NPA unchanged. The consultation closes on 24 March 2016. (24 February 2016) 

SOLACE / Civica: Invigorating the public sector revolution: this report explores how changes in culture and leadership style are critical to achieving wholesale transformation. The report finds that 47% of public sector workers think their leadership team lacks the management skills needed for a period of massive and accelerating change, while 36% want public sector leaders to invest in creating a more flexible and adaptive working environment; only 7% public sector employees at middle manager level and below view the public sector as an empowering environment to work in. This piece of work stresses how a public sector cultural revolution is essential to lead a progressive workforce to empower the digital citizen and discusses how people, culture and leadership are not only key barriers but also enablers of wholescale change. The report outlines five practical steps to help public sector leaders invigorate a cultural revolution in the sector. (16 February 2016)

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: Health and wellbeing boards engaging effectively with providers: this briefing highlights the importance of effective engagement between health and wellbeing boards and local NHS providers. It offers some short case studies of areas where engagement and genuine partnership working is leading to improved health outcomes in local areas. (18 February 2016)

Red Cross: Prevention in action: this report looks at the new duty placed on English councils under the Care Act 2014 to make sure preventative services are available locally. The research suggests that the Care Act’s vision for prevention is not being fully realised. While local authorities have made efforts to implement preventative services, the report highlights a disappointing lack of understanding, innovation and development in prevention on the whole across England. This includes a misunderstanding of the term ‘prevention’ itself despite the Care Act’s attempt to provide a clear triple-definition. Without a proper understanding of the duties required, local authorities cannot hope to provide effective services. (19 February 2016)

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

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Housing Act 1985 (Amendment of Schedule 2A) (Serious Offences) (Wales) Order 2016 (SI 2016/173 (W.74)): Sch.2A to the Housing Act 1985 lists the serious offences relating to the absolute grounds for possession for anti-social behaviour provided for by s.84A of the Housing Act 1985 (secure tenancies), and Ground 7A of Part 1 of Sch.2 to the Housing Act 1988 (assured tenancies). This Order, which comes into force in Wales on 16 February 2016, adds offences relating to slavery, servitude and forced or compulsory labour, and human trafficking to Sch.2A. (9 February 2016) 

Nottingham City Council v Parr [2016] UKUT 71 (LC): P was a provider of student accommodation and held HMO licences issued by the Council. P appealed to the First-tier Tribunal seeking the removal of a condition in one HMO licence that prohibited the use of an attic bedroom as sleeping accommodation. The FTT granted the appeal and removed the condition but substituted another condition that the bedroom could only be used for "sleeping accommodation by a person engaged in full-time education and who resided in the dwelling for a maximum period of 10 calendar months over a period of one year”. P appealed, contending that the FTT was wrong in law to distinguish between different types of occupants when framing the licence conditions for the HMO. It was also argued that the condition was unenforceable.
The court held, dismissing the appeal, that s.67(1)(a) and (2)(a) of the Housing Act 2004 provided that a licence could include conditions for regulating the management, use and occupation of an HMO, and that these might impose restrictions or prohibitions on the use or occupation of particular parts of the HMO by persons occupying it. There was nothing unlawful in a condition restricting the use of sleeping accommodation in part of an HMO to a person in full-time education, if the decision maker was satisfied that, looked at as a whole, the HMO was suitable for the number of households specified in the licence. An alternative condition might require that the occupiers be members of a group who intended to share the communal living space, but the reference to students did not make the condition unlawful. The time limit was more difficult to police but not to an unreasonable extent, as the contracts under which these HMOs were occupied were required by other conditions of the licences to be made available to the Council for inspection and it was normally to be expected that a person in full time education might spend a significant period of the year elsewhere during university vacations. Again, the addition of this restriction did not make the condition as a whole unlawful. (9 February 2016)

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

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LGA: Reducing the strength – Guidance for councils considering setting up a scheme: as licensing authorities, councils are responsible for authorising the sale of alcohol by licensed premises in accordance with the four licensing objectives. Since 2013, they have also assumed responsibility for reducing the harmful health impacts of alcohol misuse on individuals and communities. The challenge for councils is to find the right balance between these different objectives. This guidance considers the Reducing the Strength initiative which is designed to tackle the problems associated with street drinking by removing from sale low price high-strength alcohol products through voluntary agreements with local retailers. It includes case studies of Suffolk and Portsmouth. (12 February 2016)

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

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DCLG: Single departmental plan 2015 to 2020: sets out the Government's objectives for this Parliament and how DEFRA is fulfilling its commitments. The plan will be revised annually, each April. DCLG’s plan focuses on four objectives:

  • driving up housing supply;
  • increasing home ownership;
  • devolving powers and budgets to boost local growth in England; and
  • supporting strong communities with excellent public services.

Each of the government departments' plans are available on the Cabinet Office's web page. (19 February 2016)

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

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Cabinet Office: Procurement Policy Note PPN 01/16: Ensuring compliance with wider international obligations when letting public contracts: this note reminds contracting authorities of their international obligations when letting public contracts. It makes clear that procurement boycotts by public authorities are inappropriate, outside where formal legal sanctions, embargoes and restrictions have been put in place by the Government. (17 February 2016)
See also the House of Commons Library's research briefing on Local authority boycotts that discusses government proposals to introduce new rules and guidance to limit the extent to which local authorities in England and Wales can use boycotts in their procurement and pensions investment policies. (19 February 2016)

Bevan Brittan's Commissioning Bytes: the new Public Contracts Regulations 2015 replace the old Part B services approach to health and social care contracts with a more formal set of obligations called the 'Light Regime'. We have produced a series of Commissioning Bytes that highlight some practical steps towards being light regime ready. The latest one covers:

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

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Public Health

Public Health England: Health and housing guides provide roadmap for integrated working: PHE and the Housing LIN have published two practical resources aimed at improving services around housing and end of life care and on the built environment's role in promoting active ageing. The documents are intended to build on a major undertaking by PHE, NHS England and its partners to improve integration and partnership working between health, social care and housing.
The guides are:

(23 February 2016)

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

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