Authority Update 24/2/17

Brief details of recent Government policy and legislative developments relevant to those involved in local government work.

06/03/2017

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:

    Adult Social Services    Governance
    Business Rates    Health and Social Care
    Children's Services    Housing
    Combined Authorities and Devolution    Libraries
    Commons and Village Greens    Procurement
    Emergency Services    Public Health
    Employment    Regulatory Services
    Finance    Standards
    Fraud    Welfare and Benefits

Adult Social Services

LGA: Changes in council funding and social care: this briefing calls for social care to be treated as a national priority. The Government should use its recently announced review of health and care to consider new long-term solutions to secure the sustainability of care and support that includes genuinely new government money. Local government leaders must be central to these discussions. After this week's Local Government Finance Settlement announcement the LGA will continue to press the Government to take urgent action to find new funding for councils in the March Budget 2017.
To demonstrate the scale of the challenge facing councils in meeting the £2.6bn adult social care funding shortfall by 2020, the LGA has developed an illustrative Adult Social Care budget tool that puts people in control of the purse strings to try and set a budget. The figures used are based on an average English local authority where the council must find £17.1m to make up the adult social care funding gap. (22 February 2017)

Prime Minister's Office: Prime Minister's plans to transform the way we tackle domestic violence and abuse: announces plans for a major programme of work leading towards bringing forward a Domestic Violence and Abuse Act. The programme of work will look at what more can be done to improve support for victims especially in the way the law, and legal procedures, currently work for such victims. Experts will be invited to contribute ideas and proposals for improving the way the system works which is likely to lead to legislation – making it much easier for law enforcement bodies to find and use more consistently the measures at their disposal. The Prime Minister will also ask for any potential ‘quick wins’ in the intervening period to be identified and acted upon. (17 February 2017)

DCLG: Government support for more than 19,000 victims of domestic abuse: announces the 76 projects that will receive a share of £20m to support victims of domestic abuse. The funding will provide more than 19,000 victims with somewhere safe to live and rebuild their lives, and provide further access to education, employment and life skills training. (17 February 2017)

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

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Business Rates

DCLG: Explanatory note on business rates pilots 2017 to 2018: sets out the funding arrangements for 2017-18 100% business rates retention pilot areas.
See also Settlement funding assessment calculation model: business rates pilots 2017 to 2018 and Key information for pools. (21 February 2017)

DCLG: Business rates revaluation – The facts: information on the revaluation that comes into force on 1 April 2017. (17 February 2017)

DCLG: Self-sufficient local government – 100% Business Rates Retention: sets out the Government's response to the July 2016 consultation that covered a number of broad areas relating to allowing local authorities to retain 100% of the business rates they collect locally.
The reformed 100% Business Rates Retention system is now being introduced through the Local Government Finance Bill that is currently before Parliament. The Bill provides for detailed aspects of the system to be set out in secondary legislation. DCLG has now issued a further consultation on the design of the reformed system, which seeks further views on the implementation of the Government’s commitment to allow local government to retain 100% of business rates raised locally. It focuses on some of the detailed aspects of the design of the reformed system. The consultation closes on 3 May 2017. (15 February 2017)

Non-Domestic Rating (Demand Notices) (Wales) Regulations 2017 (SI 2017/113 (W.39)): these regulations, which come into force on 13 March 2017, provide for the contents of non-domestic rates demand notices which are served by billing authorities in Wales, and for the information that must accompany a demand notice served by them. They apply to demand notices issued for financial years beginning on or after 1 April 2017. (10 February 2017)

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

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Children's Services

Ofsted: Ofsted launches new social care common inspection framework: announces that a new social care common inspection framework will take effect in April 2017. Three principles will link all inspections of children’s social care providers: to focus on the things that matter most to children’s lives; to be consistent in its expectations of providers; and to prioritise its work where improvement is needed most. The framework has been tailored to reflect and address each distinct type of children’s social care provider.
See also The social care common inspection framework: questions and answers. (22 February 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

Draft Greater Manchester Combined Authority (Transfer of Police and Crime Commissioner Functions to the Mayor) Order 2017: this draft Order, which is scheduled to come into force on 8 May 2017, makes detailed provision in relation to the transfer of PCC functions from the PCC for Greater Manchester to the Mayor of the Greater Manchester Combined Authority, which was provided for by SI 2016/448. (20 February 2017)

LGA: Don't be left in the dark – Devolution and mayors: the first combined authority mayoral elections will take place on 4 May 2017. This short guide gives information on the role of combined authority mayors, what they will do and what this means for the residents they serve. (15 February 2017)

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

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Commons and Village Greens

TW Logistics Ltd v Essex CC [2017] EWHC 185 (Ch) (ChD): the issue in this case was whether an area of land that was a working quayside should remain registered as a town or village green under the Commons Act 2006, or whether the TVG register should be rectified by the de-registration in whole or in part of the land by the exercise of the court's jurisdiction under s.14 of the Commons Registration Act 1965.
The court dismissed the claim and upheld the registration of the land as a town or village green. The sports and pastimes that had been enjoyed by the local inhabitants were "lawful", had been enjoyed "as of right" for the requisite period, and could co-exist with the landowner's commercial use. The recreational uses relied upon by the defendants were not rendered "contentious" by notices or by conduct, nor were they (save possibly in the case of the discrete activity of swan feeding) precario, at any time in the qualifying period. Even if it was precario and referable to the land, the swan feeding activity was not such as to prevent other recreational activities described in the evidence being pursued "as of right". The commercial use of the land in the qualifying period had not been incompatible with its use by local inhabitants for lawful sports and pastimes; there had been sensible co-existence between the two sets of uses, with appropriate give and take, throughout that period, rather than exclusion or displacement of recreational uses. Inhabitants' activities on the land during the qualifying period, their general walking and wandering, with or without dogs, not on a fixed route, represented "lawful sports and pastimes" rather than an activity akin to use of a public right of way. (8 February 2017)

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

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Emergency Services

Fire and Rescue Services (Emergencies) (Wales) (Amendment) Order 2017 (SI 2017/168 (W.49)): this Order, which comes into force in Wales on 1 April 2017, amends SI 2007/3193 (W.280) that specifies functions in relation to Welsh fire and rescue authorities. It adds functions in connection with emergencies involving flooding and inland water; it also requires fire and rescue authorities, as part of making provision for those emergencies, to secure the provision of equipment. (15 February 2017)

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

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Employment

Home Office: Re-engagement of senior fire officers post-retirement: seeks views on proposed changes to the Fire and Rescue National Framework on the issue of senior fire officers retiring from post and subsequently being re-employed in the same or very similar roles. This consultation proposes that an addendum to the National Framework is added to ban this practice, unless fire authorities can demonstrate an exceptional public safety need. The consultation closes on 4 April 2017. (21 February 2017)

Important Public Services Regulations 2017: the Trade Union Act 2016 amends the Trade Union and Labour Relations (Consolidation) Act 1992 and introduces two new voting thresholds in respect of industrial action ballots. The new s.226(2B) of the 1992 Act sets out a 40% threshold of support that must be satisfied in ballots for industrial action in "important public services", as specified in regulations. This applies unless the union reasonably believes that a majority of those balloted are workers who are not normally engaged in the provision of important public services. These regulations, which come into force on 2 March 2017, specify what are important public services in the health, education, fire and transport sectors respectively:
• Important Public Services (Health) Regulations 2017 (SI 2017/132)
• Important Public Services (Education) Regulations 2017 (SI 2017/133)
• Important Public Services (Fire) Regulations 2017 (SI 2017/134)
• Important Public Services (Transport) Regulations 2017 (SI 2017/135)
(9 February 2017)

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

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Finance

DCLG: Final local government finance settlement – England, 2017 to 2018: DCLG has published the final LGFS for 2017/18. The published documents include:
• Local government finance report 2017 to 2018: sets out the aspects of the settlement which will require specific approval by the House of Commons, including the amount and basis of distribution of the revenue support grant in 2017 to 2018;
• Key information for local authorities;
• Information on core spending power;
• Council Tax referendum principles report 2017 to 2018;
• New Homes Bonus: final allocations 2017 to 2018.
 (20 February 2017)

LGIU: 2017 State of Local Government Finance survey: this latest research reveals that nearly 80% of councils have little or no confidence in the sustainability of local government finances. The survey (conducted by the LGiU and MJ) also found that 84% of councils think the current needs assessment formula is not fit for purpose. To cope with their immediate and long term pressures around social care, housing and homelessness, 65% say they will be forced to dip into reserves to balance the books while nearly nine in ten councils said it was a high priority or essential to explore other sources of income including commercialising council services. While eight in ten councils said they are likely to take up all or part of the increased social care precept offered by Government, only 4% of councils believe this will close the funding gap. Additionally, nine in ten councils feel council tax rises are a not viable way to address the social care funding gap. Looking to the future, councils say they want to see increased powers over charging and trading, the ability to reband council tax and raise specific local taxes as well as scrapping the requirement for a referendum for council tax increases above 2% p.a. (10 February 2017)

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

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Fraud

LGA: A councillor’s workbook on bribery and fraud prevention: elected members have a range of statutory and moral obligations to protect the assets of their authority and need to equip themselves with the knowledge to deal with enquiries and question from residents. This workbook has been designed as a learning aid for elected members to help them understand the fraud risks that affect councils and some of the methods that are used by authorities to prevent and detect fraud, along with the scale of the problem and the impact that fraud can have on council finances. (14 February 2017)

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

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Governance

LGA: Purdah – A short guide to publicity during the pre-election and pre-referendum period: guide to the publicity restrictions that should be observed during the "purdah" period prior to the local elections on 4 May 2017. The guide states that the latest date that purdah can start is 23 March, but we calculate that this should be 27 March 2017. It emphasises that communications do not have to shut down completely during this period and the ordinary functions of councils should continue; however, some restrictions do apply to all councillors and officers. The guide includes a template letter for sending to councillors ahead of local elections with guidelines and restrictions on decision making and publicity during the pre-election period. (14 February 2017)

Whitstable Society v Canterbury City Council [2017] EWHC 254 (Admin) (Admin Ct): the claimant applied for a declaration regarding the Council's decision to sell a former outdoor skating rink. It contended, amongst other things, that the Council had breached s.123 LGA 1972 as it had failed to comply with the consultation requirements regarding disposal of open space land and the contract for the sale of the land was entered into at a value which was less that the best which could reasonably been have been obtained. It submitted that the valuation process was flawed and the Council had agreed a price predicated on the basis that it was inevitable that there would be a requirement in any planning permission that affordable housing must be provided or contributed to.
The court held that the site did not consist of or form part of an open space. The phrase "consisting or forming part of an open space in s.123(2A) was not solely determined by use; it would also include land which might not actually at the point of disposal be being used by the public but which, by virtue of the manner in which it had been landscaped, would consist of or form part of an open space. Section 123(2A) clearly required land to consist or form part of an open space at the time when disposal was being undertaken. The consultation requirements did not arise where there was merely the lost opportunity for the land to potentially be developed so as to consist of or form part of an open space.
Regarding the alleged disposal at an undervalue, the court considered that no reasonable local authority would have failed to re-enquire as to the position in relation to the prospects for imposition of an affordable housing requirement bearing in mind the very significant impact it had on value and, secondly, having made any such enquiry of itself, no reasonable authority would have proceeded knowing that the local plan timescale had slipped on the basis that there was no prospect whatsoever of an affordable housing requirement being avoided. The council was in breach of s.123(2) as it had failed to obtain best consideration for the land since the sum it accepted was based on a valuation predicated on it being inevitable that affordable housing would be required.
However, although the council had erred in law in decision to enter into the contract for the sale of the site, the court refused to grant any form of relief. This was not an appropriate case for relief, given the undue delay which had occurred and the prejudice to third parties and good administration which would occur if the decision were quashed. (15 February 2017)

Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 (CA): O applied for judicial review of the Council's decision to grant planning permission for Cambridge City Football Club's development of a football stadium on land which is part of the Green Belt. The inspector recommended that permission be refused, identifying the various aspects of the development plan which would be infringed, in her view without justification, by this development. The planning committee did not follow the inspector's recommendations but approved the development in principle. It delegated to officers the power to grant permission subject to certain matters being resolved and, where necessary, conditions being imposed.  O contended that the planning committee had failed to give reasons for their decision in breach of a common law obligation to do so.
The court held, allowing the appeal, that there was no general duty to provide reasons in planning cases. The question was whether a planning authority could at common law refuse to reveal its process of reasoning even where that process was not otherwise clear.  There was a statutory duty to provide reasons  in many planning determinations including, in EIA cases, where permission was granted. If reasons could be required in those circumstances, it was difficult to see why it should be unduly onerous to produce them in cases when permission was granted. The content of a common law reasons duty was likely to be less rigorous than where the duty arose in the statutory context and members had access to officers and lawyers who could assist them in the formulation of their reasons. Here, not only had the committee disagreed with the officer's recommendation, but in addition it had done so in circumstances where its decision was not consistent with the local development plan and involved development in the Green Belt. Public policy required strong countervailing benefits before such a development could be allowed, and affected members of the public should be told why the committee considered the development to be justified notwithstanding its adverse effect on the countryside. These considerations demanded that reasons should be given. Even if there were some planning decisions which did not attract the duty to give reasons, there was an overwhelming case for imposing the duty here. Nor was the reasoning sufficiently transparent to relieve the committee of the duty to provide reasons. (15 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

DH: Care Act statutory guidance: this statutory guidance has been updated to reflect changes in the law on charging armed forces veterans for care and support from 10 April 2017. (24 February 2017)

IPPR: Care in a post-Brexit climate – How to raise standards and meet workforce challenges: this report explores the drivers of inadequate standards of care in the UK, including chronic underinvestment, the reliance on a low paid, poorly trained workforce and high levels of staff turnover. It also sets out a vision for a more relational, personalised care system, delivered by a more highly skilled and well-resourced workforce. (9 February 2017)

Age UK: Briefing: Health and care of older people in England 2017: this analysis looks at how the system of health and care is working for older people in this country at the moment. It highlights the immense challenges facing older people needing support. It demonstrates the impact of the failure to provide support on their health and wellbeing, as well as the NHS, and how the social care crisis is also creating a significant burden for other forms of support. (16 February 2017)

DH: Adult social care – Market shaping: updated guidance on creating personalised, high quality, sustainable care solutions using a range of care providers and support organisations. The guidance is aimed at people who buy social care services, including local authority and clinical commissioning group commissioners, as well as personal budget holders and people who fund their own care, care service providers and potential investors in the care sector. (14 February 2017)

House of Commons Library: Health and Social Care Integration (England): this briefing paper analyses recent policy and debate on the integration of NHS-provided healthcare and local authority-provided social care. This has been a key policy priority for successive Governments, with the aim of improving patient care and saving money for the NHS and local authorities. (24 February 2017)

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

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Housing

DCLG: Homelessness Reduction Bill policy factsheets: updated factsheets giving background information on the measures within the Homelessness Reduction Bill.  (20 February 2017)

R (Osman) v Harrow LBC [2017] EWHC 274 (Admin) (Admin Ct): O applied for judicial review of the Council's decision to award her Band C priority for the purposes of the allocation of housing accommodation, in accordance with its amended housing scheme. O contended that the amended scheme was unlawful as it discriminated against those in the private rented sector by denying equivalent priority to those in the public sector, contrary to Arts. 8 and 14 ECHR, and so it did not secure that a reasonable preference was given to persons occupying overcrowded housing or otherwise living in unsatisfactory housing conditions, contrary to s.166A(3) of the Housing Act 1996.
The court held, refusing the application, that the objective of the amendments was to support the reduction in overcrowding by removing the perverse incentive on the basis of the officers' advice. That was a legitimate objective which was properly the subject of the Council's determination of the appropriate scheme for the purposes of Part VI of the 1996 Act. The difference with transfers was justified as the appropriate means to meet the objective and make the best use of the scarce housing resources to meet the objective of reducing overcrowding including in households with children. Any consequent reduction in priority for private sector tenants, while forming the large majority of cases, was proportionate to meeting that objective and as such justified. It was properly a matter for the Council's decision having regard to what it saw as achieving the best use of their housing resource acting rationally on the evidence before it. There was nothing to sustain the contention that in doing so they acted in breach of Art.14 or otherwise unlawfully. (21 February 2017)

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

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Libraries

DCMS: Report under the Public Libraries and Museums Act 1964 for 2016: provides a review of library activity during the past 12 months by Government and a number of library stakeholders. It includes information on how councils are increasingly looking at different ways to provide library services, and to ensure that any delivery model they choose is sustainable and effective for the long-term. (23 February 2017)

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

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Procurement

DCLG: Updating the revised Best Value statutory guidance: DCLG has issued a very short consultation that seeks views on proposals to update the Best Value Statutory Guidance by adding guidance on the subject of procurement boycotts. It proposes to add a paragraph stating that authorities should not implement or pursue boycotts other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government. The consultation simply asks if this additional paragraph is clear and specific.  It follows on from Cabinet Office PPN 01/16, issued in February 2016, on ensuring compliance with wider international obligations when letting public contracts. The deadline for comments is 27 March 2017. (13 February 2017)

DCLG: European Structural and Investment Funds procurement documents: updated guidance on European Structural and Investment Funds Growth funding for projects that create jobs and supports local growth. The procurement documents have been updated to take into account changes to the legislation and also to reduce the risk of misinterpretation and to ensure simplification by applying the same requirements for everyone following the national rules. (20 February 2017)

DCMS: Enabling social action – Guidance: the Government and the new Economics Foundation have developed resources for commissioners and other public sector leaders to help them embed social action in commissioning. These publications provide resources, ideas and case studies on how to embed social action into existing services, develop new programmes and create the conditions for social action. There is also a video about Staffordshire CC’s ambition to develop a social action strategy, that describes procurement and commissioning practice from different perspectives. It includes examples of innovative approaches using social action including delivering youth services. (16 February 2017)

Bevan Brittan's Byte Size Procurement Updates – The Selection Questionnaire: we have published two more articles in our "SQ Bytes" series that looks at the Selection Questionnaire (SQ) issued by the Crown Commercial Service (CCS):

  • Byte 2: Scope and coverage: looks at the scope and coverage of the SQ, including commentary on works contracts and the light touch regime
  • Byte 3: Using the SQ: issues arising when using the SQ. It provides more detail on the content of the SQ, and a short explanation of the concept of reliance on capacities of third parties to satisfy selection criteria. 

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

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Public Health

LGA: Working with faith groups to promote health and wellbeing: research shows that faith groups can have a positive impact on both the health of their members and wider communities. Some councils are starting to develop a comprehensive approach to working with faith groups to tackle local health problems, and thereby making the best use of joint resources. In other areas, councils and health partners have developed specific projects and services with faith-based organisations. These case studies demonstrate how local authorities and faith groups can work together to improve health outcomes. (10 February 2017)

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

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Regulatory Services

Home Office: Investigatory Powers Act 2016 – Codes of practice: seeks views on five draft Codes of Practice under the 2016 Act, setting out the processes and safeguards governing the use of investigatory powers. The consultation closes on 6 April 2017. (23 February 2017)

DfT: Access for wheelchair users to taxis and private hire vehicles: statutory guidance to licensing authorities on new rules that drivers of taxis and private hire vehicles (PHVs) designated by the local licensing authority as being wheelchair accessible must comply with the requirements of s.165 of the Equality Act 2010, unless they have been issued with an exemption certificate. (21 February 2017)

DBEIS: Unlocking the potential of Primary Authority – Implementing the Enterprise Act 2016: the Primary Authority scheme enables businesses to obtain consistent advice on compliance with regulation, through single points of contact in local authorities. The statutory scheme was established by the Regulatory Enforcement and Sanctions Act 2008 and has since been extended to include more areas of regulation and allow more businesses to participate. The Enterprise Act 2016 further extends and simplifies the scheme so that it is open to any size of business, and pre start-ups from 1 October 2017. The Regulatory Delivery Unit is now seeking comments on draft Co-ordination of Regulatory Enforcement Regulations 2017 that effect these changes. The paper also outlines proposals to replace the ‘categories’ system which determines the scope of partnerships and underpins the current administration of Primary Authority. The consultation closes on 7 April 2017. (13 February 2017)

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

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Standards

R (Hussain) v Sandwell MBC (Unreported, Admin Ct): H, a councillor, applied for a stay of the local authority's standards and other investigatory procedures brought against him pending the outcome of his claim for judicial review of those procedures. The Court of Appeal had allowed his appeal, granting him permission to bring judicial review of the Council's decision that he had breached the Council's Code of Conduct. The local authority began another formal standards complaint in June 2016; it was due to be heard by a sub-committee in early March 2017. Further, a monitoring officer was considering whether there should be a further standards complaint raised. H asserted that the Council's procedures currently underway were, and any continuation of them would be, unlawful on grounds that included allegations of ultra vires, political motivation, bias and oppression.
The court held, granting the application, that there was a real prospect of the judicial review being successful and that the Council's processes were unlawful pending formal determination. There was a public interest in not exposing the Council to the very real criticism that it had continued apace and completed a form of public disciplinary process which the court might in due course find was politically motivated. The Council would be directed not to take any further steps pursuant to the June 2016 complaint or in the monitoring process until the outcome of the judicial review. This case was quite particular, and the court was granting relief because of the specific circumstances; it was not an indication that because the court had a power to require matters to be stayed or paused where permission for judicial review had been granted it followed that a stay should be ordered. A particular aspect of the case that made it unusual was that the challenge was that the procedures currently underway and any continuation of them were unlawful on grounds that included allegations of ultra vires, political motivation, bias and oppression.
The case is available on Lawtel (subscription required).  (23 February 2017)

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

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Welfare and Benefits

DWP: Changes to Personal Independence Payment regulations: Personal Independence Payment (PIP) was introduced to replace the outdated Disability Living Allowance and help with the extra costs that can often come with being disabled. Recent legal judgments have interpreted the assessment criteria for PIP in ways that are different to what was originally intended. The Government has now laid draft Social Security (Personal Independence Payment) (Amendment) Regulations 2017 before Parliament that clarify the criteria, in order to restore the original aim of the policy and ensure support goes to those most in need. This is not a policy change and will not result in any claimants seeing a reduction in the amount of PIP previously awarded by the DWP. The purpose is to restore the original intention of the benefit which has been expanded by the legal judgments. (23 February 2017)

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

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