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    Education
   Adult Social Services    Elections
   Children's Services    Governance
   Community Rights    Housing
   Delivery of Services    Police
   Development Control    Regulatory Services
   Devolution    Standards
   Economic Development    Tortious Liability

Access to Information

Cabinet Office: Independent Commission on Freedom of Information report: this independent report to Government reviews the Freedom of Information Act 2000 as it has developed over the past 10 years. The Commission makes a number of recommendations, including ones concerning the burden of requests on public bodies against the public interest in information being available, and the protection afforded by the exemption that protects information where its release would prejudice the effective conduct of public affairs.  (1 March 2016)

Cabinet Office: Better use of data in government: seeks views on how the government can use data to improve public services for citizens and to improve decision-making. The proposals fall into three categories: Improving public services; Addressing fraud and debt; and Allowing use of data for research and official statistics.  It proposes a series of reforms to deliver targeted improvements for individuals and businesses, saving significant sums of taxpayers’ money, reducing burdens on business and improving the protection of data and the provision of public services. The consultation closes on 22 April 2016. (29 February 2016)

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

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Adult Social Services

National Audit Office: Personalised commissioning in adult social care: this report examines the commissioning of adult social care services through personal budgets and direct payments. It finds that this can be an important way of giving care users more choice and control over their services, and when implemented well can improve users’ quality of life. The DH, however, requires a deeper understanding of the best ways to implement personalised commissioning. The NAO found that some authorities have transformed their care and support processes to ration their resources fairly, share information about a broad range of local services, and monitor and manage spending on personal budgets efficiently, while others are finding personalising commissioning a challenge as they seek to save money, and are constrained in how they can personalise care by the need to reduce overall spending. (3 March 2016)

DBIS: Cutting Red Tape – Review of adult social care: residential and nursing home sector: this report looks at how the CQC’s reformed model is being received by providers and the progress that has been made since the FoE Review was published. It particularly sought evidence on the issues of duplication and overlap between regulatory inspections and monitoring activities by different local authorities and CCGs and on how these impact on providers both financially and in terms of the service and care they provide. The review found that residential care homes spend roughly 16 days p.a. dealing with inspections and 25 days p.a. handling information requests, and that uncoordinated activity could lead to more paperwork at the expense of time spent caring for residents. (3 March 2016)

Home Office: Ending violence against women and girls strategy – 2016 to 2020: the Government has launched a new strategy to prevent violence against women and girls. It will increase funding to £80m, with a new VAWG Service Transformation Fund in 2017, which will promote projects that are leading the way in stopping violence before it happens, preventing abusive behaviour from becoming entrenched, and establishing the best ways to help victims and their families. As part of the early intervention work and to break the cycle of violence, the Government will work with local authorities on changing the attitudes and behaviours of perpetrators, to make sure rehabilitation, mental health interventions and other appropriate perpetrator programmes are in place. (8 March 2016)

ResPublica: Care after cure – Creating a fast track pathway from hospitals to homes: this report argues that delayed transfers of care, and the high costs that go with caring for patients who no longer need specialist acute care, must be resolved to free up much needed hospital capacity. It examines how to reduce pressures on the NHS by making better use of existing residential care facilities, and asks what is needed to allow residential care to step up and take on a more substantial role in the health and social care system through working more closely with providers of healthcare. (1 March 2016)

Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) (Secondary Legislation) Regulations 2016 (SI 2016/211 (W.84)): these regulations, which come into force on 6 April 2016, revoke Wales-only secondary legislation and disapply in relation to Wales, England and Wales secondary legislation made under any of the provisions of primary legislation that have been repealed as a consequence of the commencement of the Social Services and Well-being (Wales) Act 2014. They also make consequential and incidental amendments to secondary legislation required as a consequence of the commencement of the 2014 Act and, in one case, as a consequence of the commencement of the repeal of s.7B of the Local Authority Social Services Act 1970 in Sch.14 of the Health and Social Care (Community Health and Standards) Act 2003. There are also savings and transitional provisions. (24 February 2016)

Re JM (Mental Capacity Act 2005) [2016] EWCOP 15 (COP): this case considered the procedural implications of the Cheshire West judgment on deprivations of liberty of adults lacking capacity to consent to their living arrangements, where the statutory scheme set out in Sch.A1 to the Mental Capacity Act 2005 was not available. The court discussed finding a solution to the lack of appropriate representatives available for vulnerable people in such cases. The judge held that the primary responsibility to provide a resource that enabled the court either to make such appointments or to otherwise meet the minimum procedural requirements in these cases fell on the Secretary of State, or on the Secretary of State together with the applicant authorities. He invited the parties to take steps to either: identify a suitable person who was ready, willing and able to accept immediate appointment as P's Rule 3A representative, or identify an alternative procedure that was actually available to the COP to take to meet the minimum procedural requirements in the case, and so for example a short term solution for the case (and possibly others in the class represented by the four test cases). He also ruled that all future similar cases would be adjourned until a workable solution was found. (10 March 2016)

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

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Children's Services

DfE: Special guardianship guidance: statutory guidance on the special guardianship services that local authorities need to provide in accordance with the Children Act 1989. (29 February 2016)

Disclosure and Barring Service: Referral duty and power for local authorities and regulatory bodies: updated guidance for local authorities on their duty as an employer, as well as their power in relation to child protection and adult safeguarding, to refer a person to the DBS. (4 March 2016)

Recovery of Costs (Remand to Youth Detention Accommodation) (Amendment) Regulations 2016 (SI 2016/330): these regulations, which come into force on 1 April 2016, amends the amount that a local authority designated by the court under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 is liable to pay to the Youth Justice Board for England and Wales where a child or young person is detained on remand in a Secure Children’s Home, Secure Training Centre or Young Offender Institution. (8 March 2016)

Children (Secure Accommodation) (Wales) (Amendment) Regulations 2016 (SI 2016/312 (W.102)): these regulations, which come into force in Wales on 6 April 2016, make changes to SI 2015/1988 (W.298) to ensure that the requirements imposed on Welsh local authorities in relation to placements in secure accommodation apply regardless of whether they place children in Wales or in England. They also ensure that a child who is remanded to local authority accommodation and who is placed in secure accommodation cannot be placed for longer than 28 days without reverting to the court. (3 March 2016)

Nottingham City Council v LW [2016] EWHC 11 (Fam) (Fam Div): the Council issued care proceedings in respect of a 12 day old baby on the basis that there were reasonable grounds to believe that she was or would be at risk of suffering significant harm if she were placed in the care of her mother and/or her father. The court was concerned at the Council's delay in issuing the application for an interim care order where the social workers had been involved with the parents for two years, knew the mother was pregnant and had prepared a birth plan (which was ignored).
The court held that the Council was inexcusably late in making an application for an interim care order, and this failure resulted in both the parents and the children's guardian not having a fair hearing. The court therefore ordered the Council to pay the parents' costs. The court was concerned that that such fundamental and egregious errors should be made in what was a typical "run of the mill" case regarding the removal of a baby at birth. The court gave guidance on what steps should be taken by a local authority when it plans to seek the removal of an unborn child immediately or shortly after his/her birth. Save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of newborn babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most five days of the child's birth. (19 February 2016)

M and A v Islington LBC [2016] EWHC 332 (Admin) (Admin Ct): M and A, who were both seriously autistic children living in council housing, applied for judicial review of the Council's failure to transfer them to ground floor accommodation which would eliminate the particular danger that the children will jump off the balcony or out of a window and so suffer serious injury or even death. M and A claimed that s.27 of the Children Act 1989 (cooperation between authorities) applied so that the Council was obliged to take action which it had not taken to re-house them.
The court held, refusing the application, that the natural meaning of s.27 indicated that it was aimed at cooperation between different authorities when the authority which dealt with social services and the welfare of children in one did not have responsibility for dealing with other matters, such as housing. It might be assumed that Parliament considered that unitary authorities would ensure that there was the necessary cooperation between the various departments so that there would be no need for a statutory requirement to achieve it. The claimants' attempt to overturn the decision in R (C) v Hackney LBC [2014] EWHC 3670 (Admin) that s.27 did not apply to unitary authorities, was unnecessary. While the Working Together to Safeguard Children statutory guidance was poorly drafted, it could and should be read to require that the same degree of cooperation between departments in a unitary authority as given as would be required by s.27 between different authorities, and Lady Hale's observation in R (G) v Southwark LBC [2009] UKHL 26 made clear that within a unitary authority different departments must act in the same way as would be required if s.27 did apply. The Council's system did involve all relevant professionals and did comply with the indirect application of s.27. The system to deal with the safety of the claimants was satisfactory and its application to each was lawful. (25 February 2016)

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

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Community Rights

DCLG: New £3.6 million programme to help communities take control of their local pub: announces a major new support and finance programme, More than a Pub: The Community Pub Business Support Programme, to help people take control of their local pub for the benefit of the community. The  2-year programme will see a comprehensive package of business development support, advice, and loan and grant funding being delivered to community groups in England to help them establish community-owned pubs that can clearly demonstrate how they will bring significant social, economic and environmental benefits to their communities. (10 March 2016)

DCLG: Community Rights hit a landmark 5,000 uses: announces that there are now 5,000 uses of community rights, including over 3,000 buildings, green spaces and other much loved local assets protected. The Government has produced an interactive map listing protected assets and other community rights uses throughout the country. (7 March 2016)

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

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Delivery of Services

LocalGovDigital: Draft Local Government Digital Service Standard: this draft Service Standard suggests a common approach for local authorities to deliver good quality, user centered, value for money digital services. The closing date for comments is 19 March 2016. (29 February 2016)

Outsourcing contracts: lessons to learn from BT Cornwall v Cornwall Council: in BT Cornwall Ltd v Cornwall Council [2015] EWHC 3755 (Comm), the High Court ruled in favour of Cornwall Council, and its public sector partners, in finding that they were entitled to terminate a £160m outsourcing contract with BT Cornwall, owing to BTC's breaches of contract. The agreement was for 10 years and covered services including health, transport, communications and public safety. This article by Emma Norman looks at what outsourcing contract lessons can be learnt from this judgment. (14 March 2016)

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

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Development Control

Developments of National Significance (Wales) Regulations 2016 (SI 2016/56 (W.26)) and Developments of National Significance (Procedure) (Wales) Order 2016 (SI 2016/55 (W.25)): the Planning (Wales) Act 2015 establishes a new category of development "Developments of National Significance" (DNS). These two sets of regulations, which come into force in Wales on 1 March 2016, provide for the manner in which DNS applications and secondary consents are to be dealt with by local authorities and the Welsh Ministers to ensure that decisions are made within the statutory time limit of 36 weeks. (1 February 2016)

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

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EY: From Whitehall to town hall – Preparing for devolution to England’s city regions: this report looks at the progress of devolution deals across England, and outlines the factors which have enabled certain cities to agree theirs. (11 March 2016)

LGiU: Devolution – A state of the nation assessment: for all the focus on Europe, it could be devolution that is the critical constitutional change of our era. Ahead of next week’s Budget, this report looks in depth at the prospects for radical change in local government. (9 March 2016)

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

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Economic Development

Centre for Cities: Fast Growth Cities – The opportunities and challenges ahead: this report addresses the economic challenges facing some of the UK’s fastest-growing and strongest-performing cities: Cambridge, Oxford, Milton Keynes, Swindon and Norwich. It shows that these cities are playing an increasingly important role in the national economy, with all five places enjoying higher productivity levels than bigger cities such as Manchester and Birmingham. They also have higher than average levels of employment and business start-ups, and are among the fastest growing places in terms of population. However, the report warns that these cities are facing a number of significant economic challenges which threaten to undermine their continuing economic success in the years to come. (8 March 2016)

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

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European Union Referendum (Conduct) Regulations 2016 (SI 2016/219): these regulations, which come into force on 26 February 2016, set out the rules that will govern the conduct of the European Union referendum in the UK. It supplements provisions about the conduct of the referendum that are contained in the European Union Referendum Act 2015, in particular Schedule 3. (25 February 2016)

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

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DCLG: Letter on securing funding for new schools to support housing growth: this letter to local education authorities sets out opportunities for securing funding for both the expansion of existing schools and new schools to support housing growth. (11 March 2016)

DfE: SEND resources for healthcare professionals: guidance for health professionals who deal with children and young people with special educational needs and disability (SEND) and their families, with links to government information and external websites. (11 March 2016)

Ofsted: Ofsted to directly manage early years inspections: announces that Ofsted will manage early years inspections and regulatory work directly from April 2017, when the current contracts with Tribal and Prospects end. (1 March 2016)

LGA: Councils call for powers to provide all children with secondary school places: the LGA has reissued a call for councils to be given back powers to open new maintained schools or compel academies to expand to make sure every child has a place. It warns that otherwise the legal duty of councils to ensure every child has access to a school place would be made undeliverable. (29 February 2016)

R (Edwards) v Flintshire CC [2016] EWHC 459 (Admin) (Admin Ct): E, a parent, applied for judicial review of the Council's decision to issue statutory notices under s.48 of the Schools Standards and Organisation (Wales) Act 2013 to change the age range at a high and to close the school a year later. E contended that the consultation process failed to comply with s.38(4) of the Act and the Welsh Ministers' Code of School Organisation as it failed to consult with another high school in the area and the school councils of other schools, and that the Council had failed to highlight the views of children and young people arising from the consultation.
The court held, refusing the application, that where a duty to consult arose out of a statutory scheme, it was clearly open to the scheme to give the decision maker a discretion or area of judgment as to who should be consulted and how such consultation may be done, so long as it satisfied the basic requirements of a proper and meaningful consultation. The Code required consultation with schools likely to be significantly affected by proposals, not with every school where there was merely a possibility of some indirect or less than significant effects. The Council's view that any effect on the other school would be indirect and/or insignificant was not irrational. There was no evidence that the governing bodies of the other schools did not do what the Code required them to do, and the Council had not breached the Code. (3 March 2016)

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

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DCLG: Final guidance on flexible use of capital receipts: the Spending Review 2015 gave local authorities the right to use capital receipts on the revenue costs of reform projects. This updated guidance and the Directions provide details on the type of projects that qualify and set out the expected governance and transparency framework. (11 March 2016)

Williams v East Northamptonshire DC [2016] EWHC 470 (Admin) (Admin Ct): W appealed by way of case stated from the magistrates' court's decision ordering him to meet a council tax liability of £975.26 together with an order for costs of £75. He argued that the application for the liability order was not valid when the summons included a request for costs.
The court held, dismissing the appeal, that the summons was not an abuse of process or otherwise invalid because it also contained information about the level of costs claimed by the respondent, nor by the inclusion of additional information beyond the subject matter of the complaint. The magistrates' court was correct in law to find the costs reasonably incurred in obtaining the liability order against W amounted to £75. (7 March 2016)

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

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Cabinet Office: Tailored reviews – Guidance on reviews of public bodies: guidance setting out the principles for government departments to use when reviewing public bodies. The principles aim to ensure public bodies remain fit for purpose, well governed and properly accountable for what they do. It includes non-departmental public bodies and now extends to executive agencies and all non-ministerial departments. (7 March 2016)

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

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DCLG: Pay to stay – High income social tenants: sets out the response to the October 2015 consultation on aspects of the Government's policy that social housing tenants with household incomes of >£40,000 in London, and >£30,000 in the rest of England will have to pay an increased level of rent for their accommodation if their rent is currently being subsidised below market rent levels. The Government consulted on how income thresholds should work beyond the levels set out at Budget 2015, the interaction with Housing Benefit and sought evidence of likely administrative costs in operating the scheme. This document summarises the consultation responses and sets out the Government’s way forward as it implements the policy from April 2017. (9 March 2016)

DCLG: Review of housing needs for caravans and houseboats – draft guidance: under s.8 of the Housing Act 1985, local housing authorities must periodically  assess and understand the accommodation needs of people residing or resorting to their district. Clause 115 of the Housing and Planning Bill proposes a new duty to consider the needs of people residing in or resorting to a district with respect to sites for caravans and the mooring of houseboats as part of that requirement. This draft guidance explains how the Government would want local housing authorities to interpret the changes to accommodation needs assessments relating to caravans and houseboats should the Bill receive Royal Assent. (11 March 2016)

DCLG: First areas to push for faster brownfield land development: announces the 73 councils that will pilot one of the new brownfield registers, which will provide house builders with up-to-date and publicly available information on all brownfield sites available for housing locally. The registers will help housebuilders identify suitable sites quickly, speeding up the construction of new homes and will also allow communities to draw attention to local sites for listing, including in some cases derelict buildings and eyesores that are primed for redevelopment and that could attract investment to the area. (10 March 2016)

HC Public Accounts Committee: Right to Buy inquiry: the Committee has launched an inquiry into DCLG's new policy of extending the Right to Buy. The statutory basis of this policy is to be established by the Housing and Planning Bill, currently before the House of Lords. The Committee will look at the issue of Right to Buy and may look to clarify how DCLG has ensured its new policy fits with and complements existing housing policies. The Committee may also examine how DCLG is using evidence to inform its policy making and Parliamentary scrutiny and identify how DCLG is learning lessons from the implementation of other policies and the recommendations by the Committee. (1 March 2016)

IPPR: Building a new deal for London – Final report of the London Housing Commission: this report reviews the causes of London’s housing crisis and to set out a clear programme for how the next Mayor, the 33 London boroughs and central government should work together to tackle it. It concludes that there is no single root cause of London’s housing malaise; rather, it exposes a great many barriers to building affordable, decent homes in sufficient numbers – from land to planning, investment to skills, subsidy to regulation. The Commission has developed a detailed and coherent package of recommendations, including many actions that the next Mayor and boroughs can take immediately to get more land into the pipeline, to improve the planning process, and to tap new sources of investment. However, it warns that the Mayor and boroughs will not be able to address the full extent of the crisis unless they are given new powers by central government, and it calls for the new Mayor and boroughs to strike a major devolution deal with central government. (7 March 2016)

Housing (Wales) Act 2014 (Commencement No. 6) Order 2016 (SI 2016/266 (W.99) (C.15)): this Order brings ss. 103 and 104 of the 2014 Act into force in Wales on 16 March 2016, relating to a local housing authority's duty to carry out assessments of the accommodation needs of gypsies and travellers residing in or resorting to its area. (1 March 2016)

Jones v Southwark LBC [2016] EWHC 457 (Ch) (ChD): the issue in this case was whether the Water Resale Order 2006 applied to the council's arrangements for collecting charges for water and sewerage services from its tenants and, if so, whether the Council had charged tenants more than was permissible under the 2006 Order. The case turned in part on whether the Council had been acting as an agent or was to be seen as having bought and re-sold water and sewerage services.
The court held that the relationship between Thames Water and the Council was not one of principal and agent but involved the Council buying water and sewerage services from Thames Water and re-selling them to its tenants. As a result, the 2006 Order applied and served to limit what tenants could be charged.  The amounts that the Council charged J exceeded the "maximum charge" allowed under the 2006 Order. (4 March 2016)
For the implications of this case for housing authorities, see our alert: Landmark ruling could leave councils owing tenants millions in overpaid water charges.

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

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Home Office: Home Secretary announces reforms to IPCC: announces that the Independent Police Complaints Commission (IPCC) is to be reformed and renamed the Office for Police Conduct, in order to improve efficiency, drive more effective governance and make it more responsive to the public. The Home Secretary intends to bring forward amendments to the Policing and Crime Bill to create a new governance model for the police complaints body, which will also have increased powers, including initiating its own investigations and recommending remedies. (7 March 2016)

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

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Regulatory Services

DBIS: Cutting red tape review – Local authorities: the Government has launched a review of local authority regulation and the way it is implemented or enforced which could be made simpler, more cost-effective, efficient, proportionate, or consistent. The review will take into account burdens imposed by planning and building control, construction regulations, food safety, standards and hygiene, environmental protection and health and safety amongst others. It will build on the existing review of Trading Standards. The closing date for comments is 28 April 2016. (3 March 2016)

DBIS: Terms and conditions and consumer protection fining powers: seeks views on how T&Cs can be made more accessible for consumers. It includes a number of proposals along with more general questions on how respondents approach T&Cs and what might work better for them. It also proposes additional enforcement tools, including civil fining powers for breaches of the consumer protection legislation. The consultation closes on 25 April 2016. (1 March 2016)

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

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Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016 (SI 2016/84 (W.38)): this Order, which comes into force on 1 April 2016, makes a number of amendments to Sch.1 to the Model Code of Conduct (Wales) Order 2008 (SI 2008/788 (W.82) which sets out a model code as regards the conduct which is expected of members and co-opted members of Welsh authorities under s.50(2) LGA 2000. (1 February 2016)

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

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Tortious Liability

Menon v Herefordshire Council (Unreported, QBD): M, the owners of a residential care home, brought a claim for misfeasance in public office arising out of actions taken by the Council's employees after the Council decided to suspend all referrals to the care home and to move existing residents to other accommodation following concerns about the quality of care. M contended that the Council's officers had deliberately emptied the home of residents by lying to, bullying or threatening them and their relatives.
The court held, dismissing the claim, that the Council's officers were deeply committed and professional social workers. If M were to succeed in demonstrating that the officers were guilty of untargeted misfeasance, they needed to prove that the officers' acts had been unlawful. The officers' decisions and actions in suspending referrals were unquestionably lawful and their concerns for the residents had been genuine. Their actions were not Wednesbury unreasonable. The Council was not obliged to satisfy a person's choice of home if that home was not satisfactory in its opinion. The lies told to M by the officers regarding the embargo did not amount to misfeasance as they had reasonably believed that in lying they were legitimately assisting the police investigation. There was nothing unlawful in giving advice to the residents and their relatives, if necessary in strong terms. The officers had taken legal advice from the Council's lawyers and they were aware that M's solicitor was scrutinising their actions. In the end all residents decided to leave. The manner in which they had been caused to leave was lawful: they were not bullied, threatened or lied to. Therefore the manner of their leaving was not unlawful, and there was no misfeasance in public office by the officers. (25 February 2016)
The decision is available on Lawtel (subscription required).

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

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