Authority Update 17/6/16

Brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work.

20/06/2016

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    Education     
   Coastal Protection and Flooding    Elections   
   Combined Authorities    Finance   
   Commons and Village Greens    Housing   
   Delivery of Services    Procurement              
   Economic Development   

Adult Social Services

HC Communities and Local Government Committee: Adult social care inquiry: the Committee has launched an inquiry into the financial sustainability of local authority adult social care and the quality of care provided. It will examine whether the funding available for adult social care is sufficient for local authorities to fulfil their statutory obligations to assess and meet the needs of people requiring care and support. This includes looking at the impact of policies such as the National Living Wage and the two per cent council tax precept. The inquiry will also explore the role of carers and look at alternative funding models for financing and providing care. It covers all adult social care provided or commissioned by local authorities and not just the support given to elderly care users. The deadline for written submissions is 19 August 2016. (9 June 2016)

HC Public Accounts Committee: Personal budgets in social care: this reports warns that stronger measures are needed to safeguard the interests of adults receiving personal budgets for social care. The committee calls on the DH to set out clearly to local authorities and providers 'what high-quality and proportionate support looks like' and how much it costs, and recommends a range of analytical and other measures to safeguard users' interests and the social care market. (8 June 2016)

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

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Coastal Protection and Flooding

HC Environmental Audit Committee: Flooding – Cooperation across Government: this report scrutinises actions taken by Government and other relevant bodies involved in flood risk management to mitigate the impacts of flood events, in order to inform the National Flood Resilience Review which will assess how the country can be better protected from future flooding. Its findings include that while there was national policy in place to plan for future flooding events, this did not always translate through to the local level. It recommends that Government should, in the short term, provide more support to local authorities to enable them to adopt a plan and, in the medium term, support and encourage local authorities to develop joint local plans that properly take account of flood risk management. (9 June 2016)

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

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Combined Authorities

West Midlands Combined Authority Order 2016 (SI 2016/653): this Order, which comes into force on 17 June 2016, establishes the West Midlands Combined Authority for the exercising of specified local authority functions across the local government areas of Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton. It also provides for the CA's Constitution and funding. (16 June 2016)

Draft Halton, Knowsley, Liverpool, St Helens, Sefton and Wirral Combined Authority (Election of Mayor) Order 2016: this draft order, once in force, makes essential provision in preparation for the introduction of a directly elected mayor for the area of the Halton, Knowsley, Liverpool, St Helens, Sefton and Wirral Combined Authority (CA). It follows on from the Devolution Agreement between the Government and the CA which provided for an offer of powers and budgets from Government on the basis that the area will deliver certain reforms and measures, including adopting a model of a directly elected mayor covering the whole of the CA area. The Order provides that the area of the CA is to have a directly elected mayor, and for the date of the first and subsequent elections to the role of mayor and the term of office. (June 2016)

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

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Commons and Village Greens

Lancashire CC v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin) (Admin Ct): B applied to LCC as registration authority to register land adjacent to a primary school as a town or village green. LCC, as landowner, objected to the application. Following a public inquiry, the inspector held that most of the land should be registered but that part should not. B applied for judicial review on five grounds, including: the meaning of "locality"; the spread of users throughout the "locality"; and the conflict between registration and the statutory purpose for which LCC held the land.
The court held, granting leave for judicial review but dismissing the challenge, that (1) there was nothing in the Act which required the "locality" to have existed for 20 years; the fact that the use by its inhabitants had to have lasted for that period did not mean that its legal definition had to have existed throughout that period. It fulfilled its task by defining the area in relation to which significant numbers could be judged and to whom the rights, if registered, attached. The current Ward was the continuation of a sufficient part of the former Ward for continuity to remain between the two, by whatever means the change or interruption was brought about. The abolition of the one and its replacement was no more significant than would have been an equivalent change wrought by boundary changes. (2) The statutory requirement for a "significant number of the inhabitants of the locality" to use the land did not mean that there had to be a spread throughout the locality. The need for a legally defined area to constitute the "locality" meant that the inhabitants of the locality could suffice if significant in number in the locality; their spread was irrelevant. The inspector's conclusion that that it had not been proved that the lands had been acquired for educational purposes was not irrational nor had she erred in law. (3) Even if the land were held for educational purposes, there was not any necessary incompatibility between that and its use for recreational purpose. For a specific Act to be in conflict with the general Commons Act, and to override it by necessary implication, the statutory ownership of the land had to bring specific statutory duties or functions in relation to that specific land which were prevented or hindered by its use for public recreation after registration. It was not enough that the duty could be performed on the land in question but could also be performed on other land, even if less conveniently. LCC's general statutory educational functions could still be undertaken even if no educational functions could be undertaken on this specific land compatibly with public recreational use. A closer relationship was required between the performance of the function and the use of the particular land before conflict with public recreational use could give rise to statutory incompatibility. That was going to be a hard test to satisfy for public bodies with general functions which did not specifically or in reality have to be performed on the land in question. In the Newhaven case, the importance of the beach to possible future needs of the harbour was obvious. This highlighted the difference between a specific statutory function which required the use of specific identifiable land, and a general statutory function which could be performed, more or less conveniently without the land in question. (27 May 2016)

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

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Delivery of Services

House of Commons Library: Contracting out of probation services 2013-2016: this briefing paper charts the implementation of controversial reforms to the probation service under the Government's Transforming Rehabilitation programme. Most offenders are now supervised by Community Rehabilitation Companies, which are mostly privately led, while a new public sector National Probation Service manages high risk offenders. (6 June 2016)

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

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Economic Development

Nesta: CITIE – The Northern Powerhouse analysis: this is the latest in a series of reports designed to help policymakers in cities create the best environment for innovative businesses to thrive and assess how city governments perform as advocates, regulators and customers. It assesses the entrepreneurial ecosystem in six city and combined authority regions in the North of England and identifies a range of strong measures already undertaken by city governments in the North. It also makes recommendations for how leaders in newly, or soon-to-be devolved metro governments can further boost innovation and attract entrepreneurs. (7 June 2016)

DCLG: Tees Valley – Opportunity unlimited: report of Lord Heseltine’s independent review of the Tees Valley to identify opportunities to unlock, promote and support economic growth. Building on the momentum provided by the Tees Valley devolution deal and the new Combined Authority, the report makes recommendations to further develop the Tees Valley area with the emphasis on creating the conditions for a sustainable prosperous future. (7 June 2016)

DCLG: Great British Coastal Conference announced: the Government is to hold a free conference in Brighton on 30 June 2016 that will feature top tips and practical advice on how to help seaside areas achieve their economic potential. It will cover: community engagement; managing multiple regeneration projects; connecting the shorefront to the town centre; and attracting inward investment. (13 June 2016)

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

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Education

Staffordshire CC v JM (Special educational needs : Other) [2016] UKUT 246 (AAC): this case concerned responsibility for the costs of transport to an educational institution for a 21 year old with special needs, H, who was the subject of an Education, Health and Care (EHC) plan. The council considered that, because of H’s age, they did not have an absolute duty to make and pay for her travel to and from school, and that, under s.508F of the Education Act 1996, they only had to do so if they considered it to be necessary. The FTT ruled that the provision of transportation to access H's college programme amounted to a form of provision for H’s special educational needs (SENs); it also found that H’s needs were exceptional and that transport was accordingly an SEN.
The Upper Tribunal held, allowing the Council's appeal, that the FTT had erred in law by finding that transportation to and from school was either an SEN or special educational provision to meet such a need. It was clear from s.312 of the Education Act 1996 that an SEN must arise from a learning difficulty and that the learning difficulty must call for special educational provision. An analysis of case law, reinforced by s.15ZA of the Education Act 1996, showed that the need for home to school transport could not arise from a ‘learning difficulty’ in and of itself nor could home to school transport be classed as a form of special educational provision. The Council's duty to make arrangements for H if they considered that to be necessary having regard to all of the relevant circumstances was not a pure discretion. Although the question of what is necessary was a matter for them, in deciding that question they had to exercise their judgment judiciously and in good faith.  If they came to the conclusion that it was necessary, they had to make the necessary arrangements and the transportation must be free of charge. Paragraph 9.215 of the SEN Code of Practice could be wrongly interpreted (as it was in this appeal) to lay down a free-standing rule allowing transport needs to be included in an EHC Plan if exceptional circumstances could be shown to exist, despite s.508F of the Education Act 1996. If a Tribunal found guidance in the Code which flew in the face of legislative provisions, its duty was to apply the law as laid down by Parliament. Therefore, the FTT erred in law by deciding that it could bypass s.508F by relying on para.9.215 of the Code. It also erred in law in taking jurisdiction over transport where none existed. (23 May 2016)

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

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Elections

Recall Petition (Petition Officers’ Charges) Regulations 2016 (SI 2016/637): these regulations, which come into force on 24 May 2016, prescribe the maximum amounts which a petition officer may recover in respect of services rendered, or expenses incurred, by that officer in accordance with their functions under, or by virtue of, the Recall of MPs Act 2015 in respect of a recall petition. (23 May 2016)

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

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Finance

HC Communities and Local Government Committee: 100 per cent retention of business rates – Issues for consideration: this interim report focuses on plans to bring in the reformed business rates scheme in 2020. It concludes that the Government must address a range of issues, including problems with appeals and withdrawing Revenue Support Grant, before bringing in 100% business rates retention for councils. The Committee found that the impact of appeals by ratepayers is dwarfing increases in business rates revenue and affecting growth incentives, with local authorities setting aside substantial sums of money, often for long periods of time, in case an appeal is successful. The interim report also states that without RSG it will prove difficult to provide a system which gives incentives to growth and looks after those authorities with particular need. It calls on the Government to specify how it will protect councils which rely on redistributed business rates and are worried that they will lose out under the new system. The Committee hopes DCLG will consider the report ahead of its consultation on business rates proposals this summer. Once this is complete, the Committee will invite DCLG Ministers to give evidence before making a final report. (14 June 2016)

NAO: Financial sustainability of local authorities - Capital expenditure and resourcing: this report finds that local authorities in England have maintained their overall capital spending levels, but face pressure to meet debt servicing costs and to maintain investment levels in their existing asset bases. While local authorities have acted prudently and maintained overall capital spending levels, the cost of servicing debts accounts for a significant share of revenue spending and this is likely to increase.  DCLG needs a deeper understanding of the capital issues that local authorities face as without an understanding of broader trends, it will not be well-placed to anticipate risks to value for money as authorities come under greater financial pressure. (15 June 2016)

IPPR: Better rates – How to ensure the new business rates regime promotes growth everywhere: this report analyses the new 100% retained business rates scheme, based on the Government's statements to date. It makes recommendations for an alternative "growth first" system that more effectively ensures all local authorities are incentivised to grow their local economies, and are rewarded for doing so. (19 June 2016)

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

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Housing

DCLG: Locally-led garden villages, towns and cities – Application process guidance: in March the Government issued a prospectus inviting expressions of interest by 31 July 2016 for new ‘garden villages’ of between 1,500 to 10,000 homes. This additional document provides further guidance on the type of information that the expression of interest should include, where possible. The closing date for submissions is 31 July 2016. (15 June 2016)

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

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Procurement

European Commission: Buying green! A handbook on green public procurement: third edition of the EC's main guidance document to help public authorities buy goods and services with a lower environmental impact. It is also a useful reference for policy makers and companies responding to green tenders. (8 June 2016)

Procurement Byte: Dynamic Purchasing Systems (DPS) 3 – Operating a DPS: in this article, the third in our series on Dynamic Purchasing Systems, we look first at the process for award of contracts under a DPS. We then go on to consider the issue of reviewing DPS suppliers' suitability for continued membership of a DPS. We wrap up with a short note on remedies. (15 June 2016)

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

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