Authority Update 10/2/2017

Brief details of recent policy and legal developments relevant to those involved in local government work

13/02/2017

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     Governance
    Adult Social Services     Health and Social Care
    Byelaws     Highways
    Children's Services     Housing
    Combined Authorities and Devolution     Infrastructure
    Delivery of Services     Judicial Review
    Economic Development     Parks and Open Spaces
    Education     Ports and Harbours
    Emergency Services     Procurement
    Employment and Pensions     Standards
    Equality and Discrimination     Traffic and Transport
    European Union     Wales
    Finance     Welfare and Benefits
    Fraud  

Access to Information

Dedman v Information Commissioner (Allowed : Freedom of Information Act 2000) [2017] UKFTT 2016 0142 (GRC) (FTT GRC): this case considered whether disclosure of a draft report to a District Council on an investigation resulting from a complaint as to the conduct of the Chair of a parish council, would amount to unfair processing of her personal data; and so whether the District Council was entitled to rely on the exemption under s.40(2) FOIA 2000 when refusing the appellant’s request. The monitoring officer appointed an external solicitor to investigate a complaint alleging that C, the Chair of a parish council, had breached the Code of Conduct. C was not re-elected a councillor in May 2015. The solicitor then submitted her draft report but the monitoring officer decided that there was “no public benefit” in taking the matter further. D, a parishioner, requested a copy of that draft report but the District Council refused the request, relying on s.40(2) of FOIA, i.e. it related to C’s personal data and that disclosure would be unfair.
The tribunal held, allowing D's appeal, that the disclosure was not unfair so the district council was not entitled to rely on s.40(2). It was not disputed that the report contained the personal data of C and that there was no practical possibility of editing it so as to avoid the disclosure of such data. The public, especially the local community, had a powerful legitimate interest in disclosure of the requested information and that C could have no reasonable expectation that it would not be disclosed in the circumstances that arose. That it was a draft report and marked “confidential” when received was no obstacle to disclosure nor was the fact that C was no longer in office. D had a legitimate interest in knowing the findings of the draft report which could only be satisfied by its disclosure. Disclosure was not unwarranted by reason of prejudice to C’s rights, freedoms or legitimate interests. If there was such prejudice, it was clearly justified in this case, given the public role undertaken by C and what she might reasonably expect as to publicity for the findings of such a report. Accordingly disclosure was not unfair and the District Council was not entitled to rely on the s.40(2) exemption. Whatever the findings of the draft report, there was a strong public interest in disclosure regardless of C’s loss of office. (13 January 2017)

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

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Adult Social Services

DH: Social care – Charging for care and support (LAC(DH)(2017)1): this circular advises local authorities of the social care charging arrangements for 2017 to 2018. (8 February 2017)

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

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Byelaws

Akerman v Richmond LBC [2017] EWHC 84 (Admin) (Admin Ct): CA appealed by way of case stated against his conviction for four breaches of the Council's byelaws relating to mooring of boats, made under s.235 LGA 1972. Byelaw 4 made it a criminal offence to moor a boat against specified land without the prior written consent of the Council except "in cases of an emergency or other unavoidable cause". CA was the owner of a boat that was moored to land belonging to the Council for longer than the maximum permitted period. CA contended that Byelaw 4 was unlawful at common law because it was made for an improper purpose and was irrational. He submitted that the basis for making the byelaws was anti-social behaviour but the byelaws did not address such behaviour and were such an excessive response to the evidence of that behaviour that they were ultra vires at common law. The district judge found him guilty of the four offences.
The court held, dismissing CA's appeal, that the judge's decision was not Wednesbury unreasonable. She had neither erred nor was irrational in deciding that the byelaws were "good" (i.e. valid) law. The judge had erred in finding that a right under Art.8 ECHR to respect for the home was not engaged in the circumstances of this case, but she did not err in concluding that the byelaws were a proportionate and necessary step for the Council to take to ensure "good rule and government and the suppression of nuisance in the borough". Nor did she err in stating that evidence was not required of individual anti-social behaviour by CA in order to conclude that the byelaws were "good" law. She was entitled to conclude on the evidence that the dominant or primary purpose for making the byelaws was preventing the tow path being blocked or otherwise being interfered with and the impeding of access to the river and its banks. The prosecution against CA was properly brought. (27 January 2017)

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

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Children's Services

Ofsted: Inspection handbook inspections of services – Children in need of help and protection and care leavers and Local Safeguarding Children Boards: updated guidance to assist inspectors when they conduct inspections of services for children in need of help and protection, looked after children and care leavers and when they undertake a review of a LSCB. It should be read alongside the Framework and evaluation schedule for the inspections of services for children in need of help and protection, children looked after and care leavers (the single inspection framework) and reviews of LSCBs. (10 February 2017)

Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam) (Fam D): SL was a seven month old child  who was the subject of an interim care order. The local authority applied under the inherent jurisdiction for a declaration that it was in SL's best interests for the local authority to be given permission to arrange for him to receive the Hib vaccine and the PCV vaccine. SL's mother objected to this course of action, contending that three of her older children had suffered adverse reactions to immunisation, but she had not produced any evidence to support this contention.
The court granted the application and made a declaration under its inherent jurisdiction that it was in SL's best interests for the local authority to be given permission to arrange for him to receive the vaccines. Parents were ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility. Where there was a dispute between those who held parental responsibility, then the court was obliged to determine that dispute in order to discharge its obligation to ensure the welfare of the child was safeguarded. A parent was fully entitled to make a decision based on their assessment of the likelihood of infection and how severe that infection might be in terms of outcome; however, the mother's evaluation did not accord with the expert medical evidence and the mother's views carried less weight as she had not produced any factual basis for them. SL's welfare was paramount and it was in his best interests to receive the vaccines. The interference in the mother's right to respect for family life under Art.8 ECHR by authorising SL's immunisation against her wishes was justified and proportionate. The judge emphasised that the court was not making any decision about the merits of vaccination but was concerned solely with an evaluation of one child's best interests based on the very particular circumstances of this case. (30 January 2017)

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

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Combined Authorities and Devolution

London Finance Commission: Devolution – A capital idea: the Commission was set up to help the Mayor and London’s local authorities improve the tax and public spending arrangements for the city, to promote jobs, growth and greater equality. This report considers the tax and spending powers which London now needs to take control of its future. It discusses the benefits of fiscal devolution to London and to Londoners, holding local politicians to account, better quality decision-making and a fairer tax system that supports economic growth. The overall approach that the Commission recommends is to bring London in line with most other global cities by allowing London's government to introduce a modest tourism levy and give it greater control over income tax, VAT and other tax revenues, in exchange for lower levels of government grant. (27 January 2017)

Combined Authorities (Mayoral Elections) Order 2017 (SI 2017/67): this Order, which comes into force on 31 January 2017, provides for the conduct of elections for directly-elected mayors of combined authorities, including setting nomination arrangements, deposits and spending limits for candidates, and rules relating to the conduct of the poll itself, e.g. polling stations and provisions for counting votes. It includes the Combined Authority Mayoral Elections Rules and the Combined Authority Mayoral Election (Combination of Polls) Rules, with the forms to be used. It also requires the CA to appoint a Combined Authority Returning Officer  to oversee the election as a whole. (30 January 2017)

Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2017 (SI 2017/68): this Order, which comes into force on 8 May 2017, provides for the composition and proceedings of combined authorities' overview and scrutiny and audit committees, similar to the provision for local authorities in the Local  Authorities (Committee System) (England) Regulations 2012 (SI 2012/1020) and the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089). (27 January 2017)

Combined Authorities (Mayors) (Filling of Vacancies) Order 2017 (SI 2017/69): this Order, which comes into force on 28 January 2017, sets out the rules by which vacancies are to be declared in the office of Mayor of a combined authority, and the procedure by which these are to be filled through by-elections. (27 January 2017)

West of England Combined Authority Order 2017 (SI 2017/126): this Order, which mainly comes into force on 9 February 2017, establishes the mayoral West of England Combined Authority across the local government areas of Bath and North East Somerset, Bristol City and South Gloucestershire. It also provides for the governance arrangements of the CA, including 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. Finally, the Order also provides for certain functions of the CA’s constituent councils and certain public authorities to be exercised by the CA, and certain specified functions of the CA to be exercisable only by the Mayor. Part 5 (Mayoral Development Corporation) & Part 7 (Functions of the Combined Authority exercisable only by the Mayor; political advisers) come into force on 8 May 2017. Part 4 (Planning) comes into force on 8 May 2018. The Order also sets out transitional arrangements to cover the period from establishment of the CA to the Mayor taking office on 8 May 2017. (8 February 2017)

Draft Greater Manchester Combined Authority (Fire and Rescue Functions) Order 2017: this draft order, once in force, transfers all of the functions of the Greater Manchester Fire and Rescue Authority (GMFRA) to the Greater Manchester Combined Authority (CA), including functions and responsibilities set out by the Fire and Rescue Services Act 2004 and the Civil Contingencies Act 2004. These functions will be general functions of the CA that can only be exercised by the Mayor. The Mayor may set up a fire committee to assist him in delivering his fire and rescue functions, which may have a total of 15 members, who must be politically balanced, with one member being nominated by each of the constituent councils, and up to five additional members being appointed by the Mayor. The Order identifies several fire and rescue functions which are considered of strategic importance, and prevents the Mayor from delegating them. It also transfers the property, rights, and liabilities of the GMFRA to the CA and abolishes the GMFRA. (8 February 2017)

Draft Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (Election of Mayor) (Amendment) Order 2017: this draft Order, once in force, amends SI 2016/800 so as to delay the date of the first mayoral election until 3 May 2018, with elections every four years thereafter. (8 February 2017)

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

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Delivery of Services

Cabinet Office: Government Transformation Strategy 2017 to 2020: the Government has launched a strategy setting out how it will harness digital technologies, skills and tools to transform public services and put the citizen first – and so redefine the relationship between the citizen and the state. The strategy builds on the previous Government's strategy to make public services "digital by default". Central to this commitment is identity assurance, so the Government Digital Service is to accelerate the roll-out of the Government’s online identity verification service Verify, aiming to have 25m Verify users by the end of 2020. It is also planning Verify pilots with local authorities, banks and the commercial sector. (9 February 2017)

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

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Economic Development

DCLG: Multi-million pound cash boost to help create local jobs and growth: announces further funding from a £1.8bn dedicated Local Growth Fund for 11 Local Enterprise Partnerships across London, the South East and the East of England, to help create jobs, support businesses and encourage growth. (2 February 2017)

Welsh Government: £10 million for regeneration of town centres: announces the third phase of the Vibrant and Viable Places Town Centre Loans Fund that will help Welsh local authorities find sustainable uses for empty sites and premises such as affordable town centre homes or tourist and leisure attractions. The fund works on a recyclable loan basis so that once the money is repaid, it is used again to fund new loans. (3 February 2017)

Centre for Cities: Cities Outlook 2017: this latest annual health check of 63 UK cities focuses on exports. It explores how much the 62 biggest British cities export, which goods and services they specialise in, and where the exports go. The paper shows cities where their challenges and opportunities lie as the UK looks to increase exports in the years ahead. It reviews the extent to which cities depend on individual industries for their exports and what proposed trade deals are likely to mean for them. It also provides insights about the geographic impact of potential trade deals, considering the relationship between exports and productivity at the city level, and the implications this has for both the attempts by the Government to raise productivity, and for its place-based industrial strategy. (30 January 2017)

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

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Education

LGA: Councils must be able to force academies to take in ‘hard to place' children: the LGA is calling on the Government to give councils the power to direct academy schools to take in ‘hard to place' students, including those excluded from other schools, if those places available are best for the children. Currently, where councils consider that a local academy school is the most suitable for a particular child, they have to apply to the Education Funding Agency (EFA) which makes the final decision; however, there is increasing concern that their advice to the EFA is being repeatedly ignored. (3 February 2017)

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

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Emergency Services

Policing and Crime Act 2017: this Act has received Royal Assent. It contains a range of measures designed to enhance the democratic accountability of police forces and fire and rescue services, improve the efficiency and effectiveness of emergency services through closer collaboration, and build public confidence in policing. In particular, it:
• places a new duty on police, fire and rescue and ambulance services to collaborate where it is in the interests of their efficiency or effectiveness;
• enables PCCs to take on responsibility for the governance of fire and rescue services, where a local case is made;
• reforms the police disciplinary and complaints systems;
• reforming police powers under ss.135 and 136 of the Mental Health Act 1983 to improve the response to those in mental health crisis;
• gives Chief Officers the flexibility to confer a wider range of powers on police staff and volunteers, whilst specifying a core list of powers that may only be exercised by warranted police officers; and
• gives the Home Secretary power to specify police ranks in regulations, thereby affording the flexibility to introduce a flatter rank structure.
(31 January 2017)
 

Home Office: Government commissions full statutory inspection of Avon Fire and Rescue Authority: announces that the Government has commissioned a statutory best value inspection under s.10 LGA 1999 following serious, wide-ranging allegations over the Authority’s governance in relation to spending, contracts, complaints, discipline and culture. The inspection will focus on the Authority’s functions in respect of governance, including, but not limited to, the Authority’s duties of accountability and assurance under the Fire and Rescue National Framework. The inspector is Dr Craig Baker, who is to report back to the Secretary of State by 30 June 2017. (2 February 2017)

Home Office: The Police Grant Report (England and Wales) 2017/18: this report sets out the aggregate amount of grants for the police in England and Wales for 2017 to 2018. It includes the grant amount for each local policing body. (1 February 2017)

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

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Employment and Pensions

Reform: Work in progress. Towards a leaner, smarter public-sector workforce: this paper evaluates recent governments’ approaches to workforce design across the NHS, education, central and local government and the police. It finds that the current workforce is a legacy of past approaches. It is built around siloed attitudes of yesterday’s governments and fails to embrace technology and new ways of working to meet users’ needs in the most effective ways. A traditionalist mentality fails to cultivate a culture of change: mistakes are covered up, risk-aversion is rife and leaders have not built the workforce around the needs of users. It concludes that a new approach is needed, where public services deliver outcomes that matter to users, and meet expectations of interacting via technology. (6 February 2017)

Re Brewster – Application for Judicial Review (Northern Ireland) [2017] UKSC 8 (Sup Ct): the Supreme Court has held that Local Government Pension Scheme (LGPS) in Northern Ireland could not justify requiring a member to complete a nomination form as a pre-requisite for a co-habiting unmarried partner to be eligible for a survivor's pension. It was enough that the survivor met the definition for a co-habiting partner. The ruling confirmed that pension benefits are a possession and that as a matter of human rights, a long term unmarried partner of a deceased scheme member should be compared to a spouse or civil partner of a member when it comes to LGPS survivor benefits. Requiring the member to have completed a nomination form in respect of their unmarried partner was an interference in property rights that could not be objectively justified. (8 February 2017)
For a commentary on this case, see Bevan Brittan's Employment Alert: LGPS survivor pension for unmarried long-term partner – landmark judgment.

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

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Equality and Discrimination

DfT: Law change demands equal treatment for disabled taxi users: announces that from 6 April 2017, taxi and private hire vehicle drivers will be obliged by law to transport wheelchair users in their wheelchair, provide passengers in wheelchairs with appropriate assistance, and charge wheelchair users the same as non-wheelchair users. The changes are brought in under s.165 of the Equality Act 2010. Taxi drivers face a fine of up to £1,000 if they refuse to transport wheelchair users or attempt to charge them extra. Drivers may also face having their taxi or private hire vehicle licence suspended or revoked by their licensing authority. Drivers unable to provide assistance for medical reasons will be able to apply to the licensing authority for an exemption from the new requirements. The Government will be consulting on a draft ‘Accessibility action plan’ later this year, which will seek to address the barriers faced by disabled people in accessing all modes of public transport. (7 February 2017)

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

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European Union

DEEU: The United Kingdom’s exit from and new partnership with the European Union: this White Paper sets out the Prime Minister’s vision of an independent, truly global UK and an ambitious future relationship with the EU. It builds on the 12 principles which will guide EU exit negotiations. In this White Paper the Government sets out the basis for these priorities and the approach to forging a new strategic partnership between the UK and the EU. (2 February 2017)

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

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Finance

DCLG: Local Government Finance Bill policy factsheets: the Local Government Finance Bill was introduced into the Commons on 13 January 2017 and is currently at Committee stage. These factsheets provide background information on the Bill's measures, including: reforms to the Local Government Finance Settlement; Multiplier reduction; Pooling and local growth zones; 100% business rates retention; Council Tax referendum principles; Property owner Business Improvement Districts (BIDs); Rural rate relief; and Public toilet relief.
It has also published Keeling Schedules showing changes to the Local Government Finance Act 1988 and the Local Government Finance Act 1992 made by the Bill. (31 January 2017)

DCLG: Local authorities capital finance regulations: seeks views on the formula for the calculation of local authorities’ Right to Buy receipts to be paid to HM Treasury. This technical consultation proposes that receipts paid to HM Treasury for a further four years are calculated essentially on the same principles as previous years. The consultation closes on 3 March 2017.  (9 February 2017)

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

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Fraud

London Councils: Programme to tackle London fraudsters launches in five boroughs: announces that Camden, Ealing, Islington, Croydon and Southwark LBCs have begun piloting the London Counter Fraud Hub, a partnership between all boroughs in the capital to better target those responsible for unpaid council tax, illegal property letting and unpaid business rates. The hub, which is managed by CIPFA, is a counter fraud service which supplies data analytics, investigations and recoveries service for the 32 London boroughs & the City of London Corporation. (30 January 2017)

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

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Governance

DCLG: Rotherham intervention: proposed return of additional powers: the Secretary of State has written to Rotherham MBC advising that he is considering exercising his powers under s.15 of the Local Government Act 1999 to return certain functions to the Authority to exercise, together with associated functions: adult social care and the Council’s partnership with the NHS (subject to enhanced oversight arrangements from the Commissioners); economic growth; town centres; grounds maintenance; external partnerships; and audit. (9 February 2017)

NALC: NALC calls for parish polls rules to be in force now: reports that the Government is to modernise the process for holding parish polls and bring the process in line with other elections, reduce costs for ratepayers and stop expensive polls being triggered by a tiny number of voters. These plans were first proposed at the end of 2014 but no final decision was announced. The NALC welcomes the proposals and calls on the Government to bring in the regulations without delay. (27 January 2017)

BBC: BBC-funded local reporters to be spread across UK: announces that the BBC is to fund 150 local reporters, who will cover council meetings and public services and share their stories with the BBC. The aim is to enhance democracy at a local level and hold local politicians and services to account. (2 February 2017)

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

NAO: Health and social care integration: this report finds that the Better Care Fund has not achieved the expected value for money, in terms of savings, outcomes for patients or hospital activity. It warns that progress with integration of health and social care has, to date, been slower and less successful than envisaged and has not delivered all of the expected benefits for patients, the NHS or local authorities. As a result, the Government’s plan for integrated health and social care services across England by 2020 is at significant risk. The Fund has, however, been successful in incentivising local areas to work together. While there is general agreement across the health and social care sectors that place-based planning is the right way to manage scarce resources at a system-wide level, local government was not involved in the design and development of the NHS-led sustainability and transformation planning programme and local authorities’ engagement in the planning and decision making phase has been variable. The NAO also found no compelling evidence to show that integration in England leads to sustainable financial savings or reduced acute hospital activity. (8 February 2017)

LGA: Improving outcomes for children and families in the early years: a key role for health visiting services: these case studies demonstrate examples of innovation in the delivery of health visiting since its move into local government, and highlight that there have also been challenges. Concerns have been raised that in some areas health visitor posts are being cut as a consequence of the reductions to local government funding. The cuts to local authority public health budgets make it more important than ever for health visitors and commissioners to work together to monitor and evaluate the impact of the service. (8 February 2017)

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

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Highways

Crawley v Barnsley MBC [2017] EWCA Civ 36 (CA): the Council appealed against a decision that it was liable in damages to C after he tripped on a pothole in the road and fell, suffering injuries. The pothole was reported to the Council by a member of the public on a Friday afternoon but the Council's highways inspector  did not look at the report until the following Monday. On the Saturday, C went out jogging and injured his ankle on the pothole. Under the Council's system for evaluating road defects, a complaint made on Monday to Thursday from a member of the public would be considered by a highways inspector on the next day, but a complaint made on a Friday would not be dealt with until after the weekend. C claimed the council had breached its statutory duty under s.41 of the Highways Act 1980 to maintain the highway. The district judge found that the Council had a defence under s.58 of the 1980 Act and he dismissed the claim. On appeal, the circuit judge held that there was no justification, other than resource-based justification, for dealing with complaints made on Friday any differently from those reported on Monday-Thursday; the Council had failed to establish a defence under s.58 and he set aside the judgment.
The court held, dismissing the Council's appeal, that the Council's system failed the s.58 test because it suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless they came from members of the emergency services. It was not reasonable to adopt a system which simply failed to make any out of hours evaluation at all of reports of potentially serious and dangerous defects, other than those reported by the emergency services, or those where the defect is so obviously dangerous as to need no evaluation at all. It might be perfectly reasonable to have a reduced staff and activity over a weekend, but there had to be some means of responding quickly to complaints from the public of serious and dangerous defects in the road. (2 February 2017)

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

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Housing

DCLG: Fixing our broken housing market: this White Paper sets out a broad range of reforms that Government plans to introduce to help reform the housing market and increase the supply of new homes. The proposals include:
• a new, standardised way of calculating housing demand to reflect current and future housing pressures. Every local area will need to produce a realistic plan and review it at least every 5 years;
• amending regulations so that all local planning authorities are able to dispose of land with the benefit of planning consent which they have granted to themselves;
• using powers in the Growth and Infrastructure Act 2013 to issue a new General Disposal Consent, which would enable authorities to dispose of land held for planning purposes at less than best consideration without the need for specific consent from the Secretary of State;
• legislation enabling the creation of locally accountable New Town Development Corporations;
• introducing a new housing delivery test through changes to the National Planning Policy Framework and associated guidance. This will highlight whether the number of homes being built is below target, provide a mechanism for establishing the reasons why, and where necessary trigger policy responses that will ensure that further land comes forward;
• a revised definition of affordable housing, including a definition of affordable private rented housing, and a household income eligibility cap of £80,000 (£90,000 for London) on starter homes;
• local planning authorities should work with developers to deliver a range of affordable housing products, which could allow tenants to become homeowners over a period of time. These include starter homes, shared ownership homes and discounted market sales products;
• clarify national planning policy that local authorities should seek to ensure that a minimum of 10% of all homes on individual sites are affordable home ownership products.
The Annex seeks views on changes to planning policy and legislation in relation to planning for housing, sustainable development and the environment. The Government has also issued a number of supporting technical documents plus a consultation on Planning and affordable housing for Build to Rent. (7 February 2017)
See also our comment on the Housing White Paper and the LGA's on the day briefing Housing White Paper.

Welsh Government: £20m to build homes fit for the future: the Welsh Communities and Children Secretary has announced a new programme to deliver innovative models of housing to help increase the number of homes built in Wales. It will be funded by £20m over the next two years. (9 February 2017)

Welsh Government: Renting Homes (Wales) Act 2016 – Guidance relating to supported accommodation: seeks views on proposed guidance for the temporary exclusion of a contract holder in supported accommodation and the processes to follow to extend the relevant period. It includes statutory guidance that  landlords must follow when temporarily excluding a contract-holder under a supported standard contract, and non-statutory guidance to assist landlords and local authorities in carrying out their functions relating to extending the relevant period before a tenancy or licence for supported accommodation becomes an occupation contract. The consultation closes on 28 April 2017. (6 February 2017)

Safer London: Pan-London Housing Reciprocal Agreement: this is a centrally coordinated voluntary collaboration between local authorities and registered housing providers in London that enables victims of domestic violence to move to another part of London without losing their secure tenancy. So far, 24 London boroughs have signed up London Councils and MOPAC are encouraging remaining boroughs to sign up to increase the pool of eligible properties across the capital. (30 January 2017)

Social Housing Rents (Exceptions and Miscellaneous Provisions) (Amendment) Regulations 2017 (SI 2017/91): these regulations, which mainly come into force on 1 April 2017, amend SI 2016/390 that created certain exceptions from the social rent requirements imposed by the Welfare Reform and Work Act 2016. The regulations amend certain of these exceptions and related provision regarding maximum rents for certain types of accommodation, and provide for exceptions in circumstances where a provider is under housing administration or accommodation has been sold by a housing administrator. (1 February 2017)

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

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Infrastructure

DCLG: A new approach to developer contributions: the Government commissioned an independent review of the CIL in November 2015 to assess the extent to which the Community Infrastructure Levy (CIL) does or can provide an effective mechanism for funding infrastructure, and to recommend changes that would improve its operation in support of the Government’s wider housing and growth objectives. This report concludes that CIL as currently configured is not fulfilling the original intention of providing a faster, fairer, simpler, more certain and more transparent way of ensuring that all development contributes something towards cumulative infrastructure need and that it has also disrupted and complicated the Section 106 arrangements which, though much criticised, actually worked reasonably well for many sites. It looks at four possible options for change: do nothing, complete abolition, minor reform to get rid of the worst problems of the system and lastly more radical change to see whether this could achieve some or all of the purposes for which CIL was originally established. (7 February 2017)

DCLG: The value, impact and delivery of the Community Infrastructure Levy: this research report informed the CIL review. It examines the amount of revenue CIL is raising, the types of development that are paying CIL, impacts on viability and the operation of the neighbourhood share of CIL. (7 February 2017)

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

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Judicial Review

Hillingdon LBC v Secretary of State for Transport [2017] EWHC 121 (Admin) (Admin Ct): four local authorities applied for judicial review of the decision of the Transport Secretary (SoS) to include in a draft National Policy Statement (NPS) a proposal for a third runway at Heathrow Airport. The decision was taken under the Planning Act 2008. The SoS applied to strike out the claim on the grounds that the court had no jurisdiction to hear it. He submitted that under s.13 of the 2008 Act, proceedings could only be brought in a six week period beginning the day after an NPS is adopted or, if later, published, neither of which had yet occurred.
The court held, granting the application, that s.13 should not be regarded as akin to an ouster clause. Its effect was to suspend, rather than to exclude, the right of access to the court and the power of the court to perform its judicial review function. The section should not be given a narrow construction. The meaning of the words of s.13, when understood in their context, was that proceedings could only be brought in the six week period once the NPS was designated or published. Judicial review challenges both before and after that six week period were prohibited. Here, any designation or publication of an NPS was not expected to occur until late 2017 at the earliest, so any claim before that was precluded. Section 13 contained both a start date and an end date. Read as a whole, the words conveyed an intention to preclude a challenge at any time before that start date. The Explanatory Notes to the Criminal Justice and Courts Act 2015, which amended s.13, referred to the six week period "within which" a challenge had to be brought – that was consistent only with the permissible period of challenge having both a beginning and an end. The court had no jurisdiction to hear the claim and the claim form should be struck out. (30 January 2017)

Camden LBC v Humphreys (Rev 1) [2017] EWCA Civ 24 (CA): this case raised an important procedural issue, namely: whether a party which has chosen not to participate in litigation and has not put its case before the first instance court should be able appeal against the decision at first instance and, if so, in what circumstances. The substantive legal issue in this case was the validity of a £195 charge certificate in respect of a parking contravention by H whose moped was parked in a suspended motorcycle parking area. H's moped was parked there lawfully but the Council later erected a sign notifying motorists that parking in the bay would be suspended for a 24 hour period. The moped remained in the bay during the period and the penalty charge notice was issued. H made representations to the Council, contending that the alleged contravention did not occur because the parking bay was not suspended when he parked and there was no notice indicating future suspension. The parking adjudicator dismissed H's appeal but recommended that the Council cancel the penalty charge notice; the Council rejected this recommendation. H instituted judicial review proceedings challenging the adjudicator's decision and the court granted leave to apply for judicial review. Despite the receipt of the claim form and grounds almost a year before the grant of permission, the Council took no steps to participate in the proceedings and offered no explanation for this. The council appealed against the decision.
The court held, dismissing the Council's appeal, that the Council should not be permitted to contest the application for judicial review for the first time in the Court of Appeal. It was far too late for that. Its passive attitude to the challenge to the adjudicator's decision and its total non-participation in the proceedings below seemed quite extraordinary.
The court did not rule on the substantive issue, but inclined to the view that the judge had erred in concluding that there was no contravention and that the adjudicator's reasons were flawed. The effect of the legislation and Camden's Waiting and Loading Restrictions Order was to impose a strict liability offence for parking in a suspended motorcycle bay in the sense that there was a contravention when the vehicle was located in the area during a period in which its use for parking has been suspended. (26 January 2017)

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

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Parks and Open Spaces

HC Communities and Local Government Committee: Public parks: this report looks at why parks matter, what challenges are facing the parks sector, and how to secure a sustainable future for parks. It finds that parks are at a tipping point and face a period of decline with potentially severe consequences unless their vital contribution to areas such as public health, community integration and climate change mitigation is recognised. The report highlights considerable challenges for the sector including reduced council spending, the need for parks to compete with other services for funding, and planning policy not giving them enough weight, particularly as a result of pressures to increase housing supply. The Committee call on councils to publish strategic plans, which recognise the value of parks beyond leisure and recreation and set out how they will be managed to maximise their contribution to wider local authority agendas, such as promoting healthy lifestyles, tackling social exclusion and managing flood risk. It is hoped these plans will open up parks to support and funding beyond their usual budgets and service areas. The Government should issue guidance to councils to work with Health and Wellbeing Boards and other relevant bodies to publish these joint plans and consider making producing such a strategy a legal requirement if the guidance proves ineffective.  (11 February 2017)

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

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Ports and Harbours

DfT / MCA: Guide to good practice on port marine operations: updated guidance on the management of ports and other marine facilities. The Port Marine Safety Code 2016 and this guide apply both to statutory harbour authorities and to other marine facilities which may not necessarily have statutory powers and duties. (8 February 2017)

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

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Procurement

CCS: Selection Questionnaire – Frequently Asked Questions: updated FAQs on the Selection Questionnaire. The original FAQs form Annex D of PPN 8/16. (8 February 2017)
See also our latest Byte Size Procurement Update: The Selection Questionnaire ("SQ") Byte 1 - Overview.

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

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Standards

Taylor v Honiton Town Council [2017] EWHC 101 (Admin) (Admin Ct): this decision concerned an application for costs following on from the substantive judicial review decision in December 2016 regarding the Town Council's decision to impose sanctions on T for breaching its Code of Conduct. The Town Council told T's solicitors on 26 February 2016 that the sanctions decision was revoked and T was told personally on 1 March that all sanctions currently imposed on him had been withdrawn; nevertheless, T issued his application for judicial review and the proceedings were served on 2 March. On 19 March the Town Council wrote to T repeating its decision not to re-impose all the sanctions, and limiting any sanctions for his misconduct to censure. It offered to pay T's costs and proposed that the proceedings be withdrawn. T replied that he proposed to continue his claim as he considered that the revocation of the sanctions was not lawful and contended that he should be free of all sanctions in respect of the breach of the Code, including censure. The court quashed the Town Council's decision to impose sanctions but dismissed the rest of T's claim. The court was then asked to determine  costs.
The court held that this was a case where the interests of justice required a departure, on conduct grounds, from the general rule that the unsuccessful party pay the successful party's costs. It was an important function of the costs jurisdiction that it operated as an incentive to parties to resolve disputes where possible. Here, very substantial costs had been incurred on both sides which need never have happened. T had had his chance to settle on terms that his costs would be paid until the date of the settlement if it had occurred. He had rejected that offer, and it was clear that he was still really trying to secure a result which meant that he should not have been sanctioned at all as a result of his misconduct, which he had failed to achieve. He seems to have thought that, having been subjected to unlawful sanctions between December 2015 and their withdrawal on 19 January 2016 and their repeated revocation over the months which followed, he could conduct the proceedings as he wished and recover all his costs however unmeritorious some of the contentions were. In this respect he was wrong. The judge found that the proceedings were issued too quickly because of a fear of a time limit. The dispute was substantially resolved by 26 February 2016 and the loose ends could and should have been agreed after that without the need for any proceedings. T's conduct  had not been characterised by a genuine attempt to compromise the proceedings on the basis of the law as properly understood. The Town Council's letter of 19 March 2016 was a key document – it resolved any possible doubt and from that point on T's continuation and conduct of these proceedings was unreasonable.
The court therefore ordered that the Town Council pay T's costs incurred up to and including 19 March 2016, and that T pay the Town Council's costs incurred on and after 20 March 2016. The judge commented that this might be thought generous but it appeared to him to achieve broad justice. (30 January 2017)

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

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Traffic and Transport

LGO: Fairer Fines – Ensuring good practice in the management of parking and traffic penalties: this focus report examines issues arising from the LGO's work investigating parking penalty complaints, which suggests that sometimes motorists may be paying more than they need to because they have not been given the correct advice about how to challenge their tickets. It concludes that councils should do more to inform motorists of their rights when issuing parking and traffic penalties. Providing clear and transparent information would improve the trust between motorists and authorities and save motorists from paying unnecessary charges. The report looks at the complaints that the LGO receives and provides an insight into how councils could improve procedures and guidance when issuing and managing the payment of penalty charge notices. It examines common reasons for complaints and includes anonymised case studies on individual cases. (6 February 2017)

DfT: Bus Services Bill – Consultation on draft regulations and guidance: seeks views on the first tranche of regulations and guidance associated with the Bus Services Bill. The draft regulations include: Advanced Quality Partnership Schemes; franchising; enhanced partnerships and the operator objection mechanism; and information on varied or cancelled services. The guidance includes: information authorities should follow when conducting an assessment of their franchising scheme; how authorities should approach enhanced partnerships; and competition considerations. The consultation closes on 21 March 2017. Further regulations and guidance will follow later in 2017. (8 February 2017)

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

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Wales

Welsh Government: Reforming local government – Resilient and renewed: seeks views on proposals for mandatory regional working to deliver a range of services, address workforce issues, and implement electoral reform. It follows on from the draft Local Government (Wales) Bill that was published for consultation in November 2015. It proposes arrangements for regional working; describes a strengthened role for councils and councillors; provides a framework for any future voluntary mergers; and sets out the role of community councils. Amongst the proposals are a mandatory economic development footprint that would also cover certain planning functions and transport, overseen by new, enhanced joint committees with pooled budget funding arrangements. Councils would have some flexibility over how they share responsibilities for other mandated services including education improvement, social services, additional learning needs, public protection and promotion of the Welsh language. It states that the Welsh Government has dropped plans for the compulsory merger of local authorities; instead, councils will have the option of merging under the new plans and, where there is local agreement for this, the Welsh Government will work with them to make it a reality; also, councils will be able to choose between operating a Cabinet or Committee system and to decide how the activities of councillors are best reported to the electorate. (31 January 2017)

Wales Act 2017: this Act has received Royal Assent. It implements elements of the St David’s Day agreement by setting out the powers that are being transferred to the Assembly and/or the Welsh Ministers. In particular, the Act amends the Government of Wales Act 2006 by moving to a reserved powers model for Wales that provides a clearer separation of powers between what is devolved and what is reserved, enabling the Assembly to legislate on any subject except those specifically reserved to the UK Parliament. It also devolves further powers to the Assembly and the Welsh Ministers in certain areas, including responsibility to the Assembly for ports policy, speed limits, bus registration, taxi regulation, local government elections, and sewerage and energy consenting up to 350MW. (31 January 2017)

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

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Welfare and Benefits

DWP: Greater Manchester and London handed new disability powers: announces that Greater Manchester and London are to be given devolved powers, with around £100m funding, to develop, procure and deliver localised versions of the new Work and Health Programme to fit the needs of their residents. (30 January 2017)

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

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