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    Equality and Discrimination
    Adult Social Services    Finance
    Charging and Trading    Governance
    Children's Services    Health and Social Care
    Communities    Highways
    Constitutional and Administrative Law    Housing
    Development Control    Procurement and Contract Management
    Economic Development    Public Health
    Emergency Planning    Tortious Liability

Access to Information

Thompson v Information Commissioner & Cheshire East Council (Freedom of Information Act 2000) [2016] UKFTT 2016/0044 (GRC) (FTT): T, a councillor, made formal complaint to the Council about another councillor, C. The Council considered the complaint under its Members' Code of Conduct Complaint Process and decided to take no further action. A then made a formal FOI request for all the evidence supplied in support of C's defence. The council refused to disclose the information, relying on s.41 FOIA 2000 (confidential information). It explained that its complaint process specifically stated that written replies by a respondent were provided in confidence and that there was no expectation that such information would be released in response to an FOI request. The Information Commissioner decided that the Council had correctly applied the exemptions at s.40(2) (personal data) and s.21 (information available by other means) of the FOIA.
The Tribunal has ruled, dismissing A's appeal, that the Council had appropriately relied on s.40(2). The information was clearly personal in nature as it related to a complaint about C's behaviour. The collective weight of interest in disclosure was vastly outweighed by C's rights or legitimate interest in not disclosing to the world at large material relating to a complaint about his conduct where the council did not find the complaint to be merited. A's grounds did not raise any objection to the council's reliance on s.21 so the tribunal did not consider this point. (7 November 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

LGO: Review of Adult Social Care complaints 2015/16: the LGO looks at all types of complaints about adult social care, regardless of whether the local authority is involved. This latest annual report analyses complaints from 2015-2016, and the trends and patterns that the organisation has observed. During the year the LGO received a 6% increase in complaints and enquiries about all areas of Adult Social Care, with a 25% increase in complaints and enquiries about home care. The LGO upheld 58% of all cases investigated in detail. The report also provides data for every English local authority and registrable independent care provider about which it has received a complaint. (10 November 2016)

County Councils Network: Delivering adult social care in challenging times: this report outlines the issues and funding pressures facing county authorities in delivering this key frontline service, potentially leaving thousands of vulnerable people without the care and support to maintain their independence. The results of a survey contained of Directors of Adult Social Care (DASC) reveals that 88% believe their budgets to be either ‘severe’ or ‘critical’, and only 12% say current funding levels are ‘manageable’. The survey also reveals that just one in five DASCs believe Sustainability and Transformation Plans will fulfil their objective to ensure services are sustainable in the coming years. They cite insufficient funding, as well as conflicting targets and incentives, as impeding health and social care integration. (8 November 2016)

DH: Adult social care – Market shaping: guidance on how to create personalised, high quality, sustainable care solutions using a range of care providers and support organisations. It is aimed at people who buy social care services, including local authority and CCG commissioners, as well as personal budget holders and people who fund their own care, care service providers and potential investors in the care sector. (11 November 2016)

Unison: The damage – Care in crisis: this report presents the findings of a survey of more than 1,000 staff across the UK working in homecare, residential support and day services, and looking after those with chronic health conditions such as dementia. The report highlights the scale of spending cuts to social care and the impact on care workers, older people needing care and their families. (11 November 2016)

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

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Charging and Trading

Auditor General for Wales: Charging for services and generating income by local authorities: during 2015-16, the Auditor General examined how local authorities use their powers to introduce and increase charges on services, how performance on generating income has changed in recent years, and how the process of consulting with users, and assessing the impact of charging decisions on users, is managed. Based on the findings of this audit, the Auditor General has concluded that despite raising more money from charging, Welsh authorities are not pursuing all options to generate income because of weaknesses in their policies and in how they use data and information to support decision making. The report includes some comparisons with performance and approaches to generating income from charges in England, Scotland and Wales and highlights the impact of the different approaches to generating income that are being pursued. It makes eight recommendations to help local authorities develop and encourage more effective plans for determining what services should be charged and how these are set. (9 November 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

Children and Social Work Bill – Report stage: the Children and Social Work Bill, which was introduced into the Lords in May, includes a new power to allow local authorities to apply for exemptions or modifications to children’s social care legislation to enable them to test new ways of working. The House of Lords has now considered these provisions at the Report stage of the Bill and has passed amendments removing the clauses (clauses 29-32) from the Bill. The Lords also agreed an amendment to the Bill which will mean people applying for roles relating to children’s social care functions in local authorities will have legal protection to ensure they are not treated unfairly because they have previously made protected disclosures about their organisation ("whistleblowing").
A new version of the Bill has been published, as amended on Report. (8 November 2016) 

DfE: 30 hour free childcare entitlement – Delivery model: sets out the Government's response to the April consultation on proposals to provide an extended entitlement of up to 30 hours' free childcare for working parents of 3- and 4-year-olds. The finalised regulations implementing the extended entitlement will now be laid before Parliament. The Government will also revise the draft statutory guidance in light of the consultation responses. It also plans further informal consultation with local authorities and providers before we publish statutory guidance in early 2017, covering topics such as the length of the grace period and the content of the model agreement. (5 November 2016)

DfE: Children’s Social Care Innovation Programme – Targeted funding opportunity: How to get involved: the Children’s Social Care Innovation Programme is working with the sector to radically transform the children’s social care system to achieve better life chances and improved social mobility for children receiving support and better value for money for the sector. There is currently a targeted opportunity through the Innovation Programme to develop and test innovations focusing on the four policy areas highlighted in the DfE's policy paper ‘Putting Children First. This paper explains the process for engagement with the sector to scope the issues in more depth, before working together to develop potential solutions and evaluation designs, and finally inviting proposals to trial those solutions. It sets out the core components along with timings subject to change. (7 November 2016)

LGO / Ofsted: Information sharing protocol: the LGO and Ofsted have agreed to share information with a view to improving each other’s intelligence of local authorities children’s services. This protocol means that information about complaints handled by the LGO relating to a local authority's children’s services will be routinely shared with Ofsted, thus helping to inform its inspection processes. Similarly, following an Ofsted inspection of a local authority's children’s services, Ofsted will advise the LGO of any concerns it has about the local authority’s failure to implement policy and procedural changes as recommended by the LGO following an investigation. (16 November 2016)

R (Cunningham) v Hertfordshire CC [2016] EWCA Civ 1108 (CA): C appealed against the dismissal of her application for judicial review of the Council's failure to provide her with support for the care of her grandson, R, as a looked after child under ss.20 - 22D of the Children Act 1989. R was known to the Council's Social Services and had been subject to a child protection plan. After R's mother was arrested, arrangements were made for R to stay with his grandmother, C. The Council played no part in making those arrangements. R continued to live with C and, although C stated that she did not wish R to stay with her long term, the evidence suggested that C considered her house as R's long term home. The court found that the arrangements made for the care of R by his grandmother, C, were purely voluntary in nature and did not come about by any exercise of any statutory power or duty by the Council. C appealed against the court's decision that the Council had not acted unlawfully in determining that it did not appear to them that R was a child in need who required accommodation for the purposes of the 1989 Act.
The court held, dismissing C's appeal, that the duty under s.20(1) arose when it appeared to the local authority that a child in need in their area required accommodation - only then were they obliged to provide accommodation. It was for the local authority to make the assessment. The terms of s.20 of the 1989 Act did not support the submission that a child required accommodation when any private arrangement only provided accommodation on a temporary or stopgap basis. On the contrary, the need for accommodation to be provided pursuant to s.20 would often arise as an emergency and for a short time, sometimes only for a day. The statute contemplated a child being accommodated for less than 24 hours under s.20, because it was only after the child has been accommodated for more than 24 hours that it became a looked after child within s.22. The judge was correct to find on the facts of this case that there was no legal flaw in the Council's conclusion that the trigger for the s.20(1) duty to arise was not present. (11 November 2016)

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

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NLGN: A common interest – The role of asset transfer in developing the community business market: sets out the findings from research into asset transfers from local authorities to communities in recent years. It acknowledges that cuts to local authority budgets have placed new pressures on asset management. In many instances this has led council managers to want to raise revenues from local public assets rather than use them to boost community action. It found steady progress in assets being transferred to communities over the past five years, and identified gaps in available data on asset transfers from local authorities. There were encouraging examples of local authorities and communities working together to ensure local assets were protected and could form the core of an important local community business. The report provides an in-depth assessment of possible reasons why community businesses (built around transferred assets) have succeeded, as well as why some have failed. (2 November 2016)

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

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Constitutional and Administrative Law

House of Commons Library: Brexit – Some legal, constitutional and financial unknowns: this briefing paper looks at some of the basic ‘known unknowns’ relating to Brexit. These cover areas such as a role for the UK Parliament and the devolved legislatures in the Brexit process, relations with the EU institutions, the economic impact on the UK, and changes to citizens’ rights. (9 November 2016)

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

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Development Control

R (RLT Built Environment Ltd) v Cornwall Council [2016] EWHC 2817 (Admin) (Admin Ct): RLT, residential developers, applied for judicial review of the Council's decision to hold a local referendum on the making of the St Ives Neighbourhood Development Plan (NDP). It contended that the NDP's policies on future housing provision, in particular residency requirements intended to limit second home ownership in the NDP area, were both incompatible with Art.8 ECHR and contrary to the requirements for strategic environmental assessment deriving from EU law.
The court held, dismissing the application, that none of the grounds were made good. The aim of the policy was not simply to ensure that people who wish to live in the area as full-time residents were able to obtain housing, but crucially to safeguard the sustainability of development by reducing the proportion of dwellings that were not used as a principal residence. That was uncontroversial. The draft NDP did not breach, nor was it otherwise incompatible with, the EU obligations imposed by the SEA Directive and therefore progressing the draft plan to a referendum was not in breach of para.12(4) of Sch.4B to the TCPA 1990. Although there may well have been power for the NDP to increase the housing supply figure over the housing allocation in the Cornwall Local Plan, it was properly open to the Council to consider that the NDP should primarily concern itself, not with what the target should be, but how that target should be delivered. Authorities had a wide margin of appreciation in respect of the choice and implementation of planning policies. Here, the Council had considered the Art.8 implications for the policy in detail, before determining that the policy was justified despite the potential infringement of the Art.8 rights of future homeowners subject to the restriction, which they expressly considered. The Council considered that further development in St Ives was unsustainable without the restriction; the Examiner concluded that that policy contributed to sustainable development; the Council were entitled to adopt that conclusion, which it too had independently made; and it was not simply open to the Claimant now to challenge that judgment on its merits. (10 November 2016)

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

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Economic Development

DCLG: Local Enterprise Partnership national assurance framework: in July 2014, the Government negotiated a Growth Deal with all 39 Local Enterprise Partnerships (LEPs), which awarded a significant proportion of the £12bn Local Growth Fund to LEPs. This updated document is a single assurance framework covering all government funding flowing through LEPs, to ensure they have robust value for money processes in place. It sets out what Government expects LEPs to cover in their local assurance frameworks. As part of their Growth Deal, LEPs will be expected to use this national framework to inform how they work locally, which must be set out in their own local assurance framework. The revised document reflects current policy and current expectations of LEPs in relation to accountability, transparency and value for money. (10 November 2016)

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

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Emergency Planning

NALC: Get ready for winter – Planning ahead: A checklist for parish and town councils: NALC has published a checklist for local councils on winter preparation, following the Government's call for local councils to be at the heart of the Get Ready for Winter campaign, which aims to help raise awareness of the dangers posed by winter weather and provide tips and advice on how to minimise its impact. (17 November 2016)

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

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Equality and Discrimination

R (MA) v Secretary of State for Work and Pensions (Rev 1) [2016] UKSC 58 (Sup Ct): this case concerned the impact of a cap on housing benefit (the "bedroom tax") in cases of deemed under-occupation of social sector housing on those with disabilities and on women living in “sanctuary scheme” accommodation. The Supreme Court ruled that the cap unlawfully discriminated against two claimants who needed an extra bedroom by reason of disability, but it dismissed other claimants' appeals.
The court held that the Secretary of State’s decision to structure the housing benefit cap scheme without creating a blanket exception for anyone suffering from a disability within the meaning of the Equality Act 2010, but instead to regard a discretionary housing payment scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency, was reasonable. However, it was unreasonable to fail to make provision for persons with a disability who had a transparent medical need for an additional bedroom. But where the claimed need for an additional bedroom was not the result of an objective need, it was reasonable for such need to be considered on an individual basis under the discretionary housing payment scheme.
The claims based on a transparent medical need had therefore been made out, but the claims of the other claimants, albeit based on powerful individual reasons, had not demonstrated an objective need for the additional bedroom and so failed. In relation to those with disabilities, the Secretary of State had fulfilled his duty under s.149 of the Equality Act 2010. Regarding the claim concerning sanctuary schemes, the Secretary of State's failure to specifically identify victims of gender violence in sanctuary schemes when introducing the regulations, did not impugn the otherwise proper application of the s.149 duty, by reason of the small number of such persons and given that there was no automatic correlation between being in a sanctuary scheme and having a need for an extra bedroom. (9 November 2016) 

Interim Executive Board of X School v Chief Inspector of Education, Children's Services and Skills [2016] EWHC 2813 (Admin) (Admin Ct): the School applied for judicial review of the Inspector's proposed report following an inspection. The School was a voluntary-aided mixed-sex Islamic faith school which operated a "parallel arrangements" policy whereby boys and girls were segregated for all lessons, breaks, school clubs and trips. The main issue was whether the School's policy amounted to "less favourable treatment" for the purposes of the Equality Act 2010.
The court held, granting the application, that Ofsted had not established that the School discriminated against its male and female pupils by denying them opportunities to interact with or learn from the opposite sex, and discriminated against its female pupils by treating them as inferior. Segregation in this school on the ground of sex did not constitute discrimination under ss.13, 23 and 85 of the 2010 Act. It followed that the Inspector's report could not be promulgated in its current form. (8 November 2016)

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

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National Audit Office: Overview – Local government finance: this document looks at the local government landscape during the last financial year and summarises both matters of likely interest to Parliament as well as the NAO's work with local authorities. It covers: how local government is constituted and funded, together with its spending; findings from the NAO's work on local government; and includes a look ahead to the coming year for local government. (10 November 2016)

HC Public Accounts Committee: Financial sustainability of local authorities: this report scrutinises DCLG's responsibility for local government finance system and its expectations that authorities become more ‘entrepreneurial’ as it encourages local government to become largely self-financing. The Committee is concerned that DCLG appears complacent about the risks to local authority finances, council tax payers and local service users arising from the increasing scale and changing character of commercial activities across the sector. The Department does not have good enough information to understand the scale and nature of authorities’ commercial activities or which authorities are placing themselves at greatest risk and it does not use the information it does have to give it a cumulative picture of risks and pressures across the sector. Unless DCLG strengthens its understanding of the capital issues faced by local authorities, it will not be well placed to anticipate risks to financial and service sustainability. The committee makes six recommendations, including that by Summer 2017, DCLG should send an update to the Committee setting out how it is strengthening its understanding of the scale and nature of authorities’ commercial activities, focusing in particular on the scale of risk across the sector and the types of authorities placing themselves at greatest risk. Working with partners in the sector, the Department should review the level of commercial skills across both officers and members in different types of authorities. Its update note should also set out what measures it has introduced to ensure that the purpose and geographical location of capital spending can be ascertained and what specific steps it has taken to remove double counting from its figures. In addition, DCLG should work with CIPFA to ensure that the local government capital finance framework remains current and continues to reflect developments in the sector, alongside wider institutional and economic changes. (18 November 2016)

HM Treasury: Transfer of functions from the Public Works Loan Board – Response to the consultation: sets out the Government's response to the May 2016 consultation on proposals to modernise the governance arrangements of central government lending to local authorities by abolishing the PWLB and  transferring its functions to another body. It reports that as a large majority of respondents agreed with its proposal to abolish the PWLB and transfer its powers to the Treasury, the Government plans to use its powers in the Public Bodies Act 2011 to lay before Parliament a draft Order to implement these changes. (14 November 2016)

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

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DCLG: Connecting town halls – Consultation on allowing joint committees and combined authorities to hold meetings by video conference: seeks views on proposals to amend Sch.12 LGA 1972 to give local authorities that are operating joint committees, and combined authorities (but not councils as a whole) the ability to hold formal meetings using video conferencing facilities. The purposes of the changes is to make the best use of taxpayers’ money and public resources by enabling joint committees and combined authorities to use video conferencing facilities to hold their meetings, making it easier for those who are participating in those meetings to attend the meetings and making it easier for the public who wish to attend or observe meetings to do so. The proposals cover "any meeting of a joint committee, or any meeting of a combined authority, including a meeting where a vote might be called to decide a matter". The consultation closes on 11 January 2017. (9 November 2016)

DCLG: Temporarily removing restrictions on the use of the Stray, Harrogate, imposed by the Harrogate Stray Act 1985, to facilitate Harrogate Borough Council hosting the Tour de Yorkshire 2017 – Explanatory Document: sets out the outcome of the March consultation. The Secretary of State has decided that several parts of the Harrogate Stray Act 1985 do prevent or restrict Harrogate BC from exercising the general power of competence in hosting the Tour de Yorkshire. He will therefore use his powers under s.5(1) of the Localism Act 2011 to lay before Parliament a draft Harrogate Stray Act 1985 (Tour de Yorkshire) Order 2016 to disapply or amend parts of the 1985 Act, for the period of 23 April to 3 May 2017, for the sole purpose of hosting the Tour de Yorkshire. This explanatory document accompanies the draft Order and includes a summary of the consultation responses, the Government response to the consultation and the consideration of the statutory conditions. (11 November 2016)

Cabinet Office: Tailored reviews – Guidance on reviews of public bodies: regular assurance and challenge for good governance and efficiency of public bodies is central to the Government’s public bodies transformation programme. This guidance sets 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. The updated guidance offers greater flexibility to departments, so that reviews are proportionate to the size and type of a public body and more flexible in timing and approach. The scope of tailored reviews includes non-departmental public bodies and now extends to executive agencies and all non-ministerial departments. (17 November 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

King's Fund: The Autumn Statement – Joint statement on health and social care: the King’s Fund, Nuffield Trust and the Health Foundation are urging the Government to address the critical state of social care in its forthcoming Autumn Statement. The briefing calls on the Government to recognise the immediate funding pressures facing the sector by bringing forward to next year funding from the Better Care Fund which is planned to reach £1.5bn in 2019/20. It also makes it clear that the NHS funding settlement will need to be revisited in future financial statements. (8 November 2016)

SCIE: Creating the five year forward view for social care: this paper explores the potential for scaling up some of the most promising examples of care and support services, using data from Birmingham City Council, to see what their impact would be on outcomes and costs. It aims to start a series of national and local discussions which re-imagine how we can lead good lives, in good places for people with support needs, building on well-evidenced innovative models from across the UK. (2 November 2016)

Alzheimer's Society: Making personal budgets dementia friendly – A guide for local authorities: the Alzheimer's Society has developed a dementia friendly personal budget charter that local authorities can sign up to in order to show their commitment to working towards making the personal budgets system more accessible and dementia friendly. This guide assists local authorities in implementing the recommendations. (3 November 2016)

Tinsley v Manchester City Council [2016] EWHC 2855 (Admin) (Admin Ct): the issue in this case was whether the Council could refuse to provide aftercare services to T under s.117 of the Mental Health Act 1983 on the basis that he had no need of such provision because he was able to fund it himself from his personal injury damages. T argued that this was unlawful, and represented a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords had confirmed that it was impermissible to do so in any circumstances. The Council contended that to allow T's deputy to claim the provision of aftercare services on his behalf under s.117 would offend against the principle against double recovery which had been established in the decided cases in the personal injury field.
The court held that the Council could not refuse to make provision for a person who was otherwise entitled under s.117 on the basis that the claimant was in receipt of damages for personal injury including for the cost of such care. Case law confirmed that provision under s.117 must be provided free of charge regardless of resources, and it would be anomalous if a claimant under s.117 with personal injury damages available to him were in a worse position than a claimant under the statutory provisions where means testing was allowed but damages for personal injuries were excluded. A claimant who was entitled to complain that the relevant authority had refused to provide aftercare services under s.117 could not be denied a remedy by wrongfully relying on his receipt of personal injury damages, on the basis that his deputy ought not to be entitled to advance this claim because it would offend a common law rule as to the assessment of damages which had no role to play in the assessment under s.117. The deputy owed statutory duties under the Mental Capacity Act 2005 and duties at common law and in a fiduciary capacity in his capacity as receiver and manager, but only to the person lacking capacity upon whose behalf he acted. He did not owe duties to the local authority or to the defendant in the personal injury action. It was difficult to see how the Administrative Court could properly hold that such person should not be entitled to substantive relief in judicial review proceedings to which he was otherwise entitled because it considered that the deputy was acting contrary to some notional duty to such bodies or parties in making the application. There was no separate basis for refusing relief. (10 November 2016)

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

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Amey LG Ltd v Cumbria CC [2016] EWHC 2856 (TCC): this case involved a claim and counterclaim arising out of the Council's highways maintenance contract with A. By the time the contract expired, a number of claims and counterclaims had already been intimated, with the Council making substantial deductions from A's final monthly payment applications, and with both parties actively preparing to pursue claims against the other under the final account process. Neither the final account process nor the subsequent pre-action protocol process resulted in an overall settlement of the claims and counterclaims. The claim as pleaded amounted to over £30m together with interest; the counterclaim was around £20m. One of the many issues raised concerned extrapolation: the claim for most of the separate categories of patching and surfacing defects was pleaded on the basis that the Council would rely on expert evidence to establish that its findings, based on its actual inspections of sample sites in relation to each of those separate categories, could be extrapolated with a 95% confidence rate across the whole of the works undertaken by A falling within those categories. A argued that this was an abuse of process as the Council never had any basis for making such an allegation, and knew that to be the case. A stated that if the judge was not satisfied that the Council had established its new case based on representative sampling then he should not permit the Council's fall-back position of awarding damages for defects on a non-extrapolated basis.
The court held that there was no principle of law nor of statistical theory that a claim or a proposition could only be established by statistically random sampling. It was perfectly open to a claimant to seek to establish a claim by reference to representative sampling, although further and different considerations would apply to such a claim. The Council's case failed on extrapolation: it had failed to demonstrate that the sampling exercise was a sufficiently reliable exercise to justify the court in making the finding as against A that there was a systematic and endemic failure in its performance which has led to a situation where the Council had either already undertaken, or would reasonably need to undertake, substantial remedial works to a large proportion of the patches laid by A so that it was entitled to recover as damages the very substantial sums which were claimed. The final outcome of the claim and counterclaim was that the Council was liable to A in the sum of £5,365,093, inclusive of interest but taking into account the principal and interest in respect of the settled winter services claim. (11 November 2016)

If you wish to discuss any of the items noted in this section please contact Marie-Claire O'Hara.

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DCLG: New £18 million fund to accelerate house building: the Housing Minister Gavin Barwell has announced a new fund to speed up house building on large sites that will provide thousands of new homes where people want to live. Councils are invited to bid for a share of the Capacity Fund to tackle planning issues that can cause delay and prevent builders from getting on site and starting work quickly.  There is also guidance that provides information and a bidding template to allow local authorities to bid for additional funding to support accelerated housing delivery especially in housing zones and those with large sites (over 1,500 units). The closing date for submission of bids is 9 December 2016. (11 November 2016)

ResPublica: Great estates – Putting communities at the heart of regeneration: this report sets out how communities can be put at the heart of the Government’s forthcoming Estate Regeneration Strategy, and what else needs to be done to ensure prosperity and opportunity is spread to all parts of the country. The study of 122 estates around the country found that the Government’s approach to regeneration will not help poorer communities where house prices are too low to attract investment, and where building new homes will not overcome the problems of long-term deprivation. It warns that there is a North-South divide in the current approach to funding housing regeneration that risks leaving behind hundreds of communities outside London and the South East. (10 November 2016)

Birmingham City Council v Wilson [2016] EWCA Civ 1137 (CA): the council appealed against a county court decision concerning the extent of its duties owed to W, a homeless single mother, under the Housing Act 1996. The case concerned the extent of its duty of inquiry, in light of the Public Sector Equality Duty in s.149 of the Equality Act 2010, into whether an applicant for homelessness assistance had a disability requiring special arrangements to be made. W and her two sons were temporarily housed in a flat on the 11th floor of a high rise building. She made several unrealistic bids for social housing properties which were unsuccessful. The council then offered her a flat on the 8th floor of a high rise block. W refused this offer on the grounds that her son had a fear of heights. The council advised W that it considered that its duty under s.193 of the Housing Act 1996 had been finally discharged and W had lost her priority place for allocation of social housing. W requested a review of this decision under s.202 of the 1996 Act. The review decision was that the flat was suitable accommodation and that W's refusal of it had brought the Council's duty to her under s.193 to an end. W appealed, on the ground that the Council had failed to make necessary inquiries as it should have done, in order to determine whether her son was "disabled" for the purposes of the 2010 Act by reason of his fear of heights and claustrophobia.
The court held, allowing the appeal, that the Council's duty was an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing W's application under s.193 and of doing so in a manner compatible with its equality duty under s.149 of the 2010 Act. Where a reviewing officer under s. 202 was not invited to consider an alleged disability, it would be wrong to say that he should consider disability only if it was obvious – he needed to have due regard to the need for him to take steps to take account of it. Here the reviewing officer had erred – he had applied his own judgment to the question whether there was a real possibility of there being mental disability (holding that there was), rather than asking the correct question, which was whether he could rationally conclude by the end of his investigation that there was no real possibility of either child having a mental disability. (17 November 2016)

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

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Procurement and Contract Management

NAO: Commercial and contract management – insights and emerging best practice: this interactive publication draws on the NAO's audits of government contracts and engagement with government to provide practitioners with insights on the new, emerging higher standard for government contracting. It sets out some of the areas where contracts go wrong, the warning signs that it looks for, and the examples of emerging good practice it has seen across government. (November 2016)

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 (Wales) Bill: this Bill has been introduced in the National Assembly and is at Stage 1. The Bill comprises a set of provisions that bring together a series of practical actions in specific public health areas. The provisions cover topics such as smoking, piercing, pharmaceutical services, and the provision of public toilets. (7 November 2016)

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

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Tortious Liability

Escott v Tunbridge Wells BC [2016] EWHC 2793 (QB) (QBD): E claimed damages against the Council for misfeasance in public office. The claim related to enforcement action taken by the council in relation to breaches of planning control by E's joinery business. However, the Particulars did not identify any duty of care owed by the Council to E or the company, or state the respects in which the Council was alleged to have acted negligently. The enforcement notice was withdrawn in 2009 after the council  was advised that there was no continuing breach as the complaints had ceased. The council argued that E's claim was statute-barred under the Limitation Act 1980; E contended that they could not bring their claim until the notice was withdrawn.
The court held, dismissing the claim, that there was no legal reason why E was unable to bring their claim before the withdrawal of the enforcement notice. E's argument was inconsistent with the very nature of the tort of misfeasance in a public office. There was no legal requirement that that action be quashed, or revoked by the authority, before the claimant could bring a claim for damages based upon misfeasance. The whole of the claim was statute-barred. E's argument that the tort allegedly committed by the Council was a continuing tort which carried on after the beginning of the limitation period was misconceived. (7 November 2016)

Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094 (CA): D was injured when he was walking within the precincts of Rochester Cathedral. He said that he had tripped and fallen over a small lump of concrete that was protruding from the base of a traffic bollard. The judge found that it was foreseeable that somebody would trip on this particular piece of concrete and so liability had been established. He awarded D £21,597 damages, after a 20% reduction for contributory fault. The Cathedral appealed.
The court held, allowing the appeal, that the judge had not applied the foreseeability test in the appropriate way and that this amounted to a misdirection. There was no recognition in his judgment that not all foreseeable risks gave rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, he could not have reached the decision he did. The question for the judge was whether the piece of concrete created a danger of a kind which the Cathedral authorities were required to address. Was it something more than the everyday risk which pedestrians inevitably face from normal blemishes? Was the nature of the risk such as to create "a real source of danger"? This was an extremely small piece of concrete which could not be said to pose a real danger to pedestrians. It would be very unlikely that a pedestrian would walk so close to the bollard even approaching it at an angle, or that he would injure himself if he did. Accordingly, even if the judge did apply the right test, then his conclusion was not open to him. This was a most unfortunate accident but not one for which the Cathedral should be liable. (9 November 2016)

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

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