Authority Update 7/4/17

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

10/04/2017

Claire Booth

Claire Booth

Professional Support Lawyer

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: 

   Audit    Governance
   Business Rates    Health and Safety
   Children's Services    Health and Social Care
   Combined Authorities and Devolution    Housing
   Delivery of Services    Libraries
   Economic Development    Licensing
   Education    Maladministration
   Employment    Procurement
   Energy and Environment     Public Health
   Equality and Discrimination    Regulatory Services
   European Union    Scrutiny
   Finance  

Audit

NAO: Round-up for audit committees: this interactive round-up of NAO publications is designed to make it easy for Audit Committees, Boards and other users to find the NAO resources most helpful for the strategic management of public sector organisations. The Round-up includes a focus on risk, summarising some of the learning points in NAO reports that provide particularly useful lessons for key aspects of risk management. (20 March 2017)

SAAA: Award of contracts for audit reviews: announces that Smaller Authorities' Audit Appointments has successfully concluded the procurement process and has awarded contracts for the supply of limited assurance audit reviews for smaller authorities. Three audit firms have been appointed as suppliers for the five-year period commencing 1 April 2017: PKF Littlejohn, Mazars and Moore Stephens. (31 March 2017) 

NALC: Governance and accountability for local councils: revised Practitioners’ Guide that supports the preparation by smaller authorities of statutory annual accounting and governance statements found in the annual return. The guide is intended as a working tool for smaller authorities, providing not only the common ‘rules’ for completing an annual return for use by responsible finance officers, but also as a reference work for auditors, both internal and external, members, other officers and the public to aid understanding of the annual return and the reporting on the smaller authority’s governance and finances within it. An authority is a ‘smaller authority’ if the higher of its gross income for the year and its gross expenditure for the year does not exceed £6.5m.This 2017 edition of the guide applies to annual returns in respect of financial years commencing on or after 1 April 2017. It can be applied voluntarily to annual returns covering the period 1 April 2016 to 31 March 2017. (31 March 2017)

Local Audit (Public Access to Documents) Bill: this Private Member's Bill has had its 3rd Reading in the Commons and has passed to the Lords. The Bill extends public access to certain local audit documents by amending s.26 of the Local Audit and Accountability Act 2014 to permit journalists to inspect the accounting records of local authorities and other bodies covered by the 2014 Act. "Journalist" is defined as "any person who produces for publication journalistic material (whether paid to do so or otherwise)". (27 March 2017)

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

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Business Rates

NAO: Planning for 100% local retention of business rates: this study focuses on DCLG’s work on planning for the scheme for 100% retention of business rates by local authorities, that is to be introduced on 2019/20. It examines the challenges faced by the Department, the extent to which it has learned from the 50% retention scheme, and the progress it has made to date with the 100% scheme. It finds that DCLG has made progress in designing the scheme, but the scale of the remaining challenges presents clear risks both to the timely delivery of the initiative and to the achievement of its overall objectives. (28 March 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

DfE: Direction to Sunderland City Council in relation to children’s services: the Secretary of State has issued a Direction to the Council under s.497A(4B) of the Education Act 1996 in connection with its inadequate performance in children's services. The Direction requires the council to engage with Together for Children Sunderland and other partners to improve services, and to cooperate with the Secretary of State and DfE’s advisers and officials. It replaces an earlier statutory direction issued to the council on 20 July 2015. (3 April 2017)

DfE: Peer support and children’s and young people’s mental health – Analysis of call for evidence activities: in February 2016 the DfE sought views on the most effective support methods to help improve the mental health of children and young people. This paper summarises and presents the findings from a range of activities undertaken by DfE to develop understanding, including support available within schools, in community settings and online.
DCLG has also published an Early help service transformation maturity model, a practical guide and toolkit for local authorities and their partners delivering the Troubled Families Programme. The model and toolkit supports local areas to assess how they are performing in transforming their services working across all partners and helps areas to consider what more can be achieved. It captures the principles that underpin meaningful system and cultural change in clear and accessible language. (28 March 2017)

DCLG: Supporting disadvantaged families – Troubled Families Programme 2015 – 2020: progress so far: DCLG has published the first annual report setting out how the current Troubled Families Programme has been supporting the most disadvantaged families. It shows how so far 185,000 families with multiple problems are receiving dedicated support to change their lives for the better. (4 April 2017)

Welsh Government: National standards and outcomes framework for children and young people: seeks views on a framework to replace the National Standards for the Provision of Children's Advocacy Services. This is a framework by which advocacy service providers and those commissioning them can be sure those standards are being achieved, enabling them to evidence they are making a positive difference to children and young people’s lives. The consultation closes on 23 June 2017. (31 March 2017)

Childcare (Provision of Information About Young Children) (England) (Amendment) Regulations 2017 (SI 2017/461): these regulations, which come into force on 1 September 2017, make amendments to the prescribed information that early years providers are required to provide about young children in their care to the Secretary of State and their local authority. In particular, they require providers to supply information about children who receive the entitlement to an additional 15 hours of free childcare under the Childcare Act 2016. They are also required to provide information about funding received through the disability access fund in respect of an individual child. (24 March 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

West Midlands Combined Authority (Functions and Amendment) Order 2017 (SI 2017/510): this Order, which comes into force on 8 May 2017, provides for certain functions of the WMCA’s constituent councils and certain public authorities to be exercised by the WMCA, certain specified functions of the WMCA’s functions to be exercisable only by the Mayor of the WMCA and for certain governance arrangements, including the addition of non-constituent councils, of the WMCA. It also provides for the funding of the WMCA. The functions conferred on the WMCA are: transport; housing and regeneration; air quality; smoke-free premises, places and vehicles; anti-social behaviour; and culture. The Mayor will take responsibility for a devolved and consolidated transport budget, and for a statutorily defined West Midlands Key Route Network. He also has power to designate mayoral development areas and create Mayoral Development Corporations (MDCs) in the WMCA's area. (30 March 2017)

Draft Combined Authorities (Finance) Order 2017: mayoral combined authorities are major precepting authorities for the purposes of setting council tax under the LGFA 1992. This draft Order, which comes into force the day after it is made final, provides for a precept to be set by the mayor of a combined authority to fund mayoral functions, the arrangements for setting and approving a combined authority mayoral budget, provision for a mayor’s general fund, and transitional provisions, including transitional provisions relating to the Greater Manchester Combined Authority. Article 4 and the Schedule modify the provisions in the LGFA 1992 where the mayor of a combined authority exercises the functions of a police and crime commissioner (“PCC functions”), in particular to ensure that the council tax requirement relating to PCC functions (“the PCC component”) is separated from the council tax requirement relating to other mayoral functions (“the general component”). Articles 5 to 10 provide for the budget setting process in relation to the general component. (27 March 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

NLGN: Producing the goods – Collaboration as the next frontier of productivity: this report considers how councils can cope with ever increasing financial pressures by focusing on squeezing more impact from every pound, while still providing quality services. The report focuses on ways they can do this in collaboration with others. It found that councils should trial new ideas on a small scale, evaluate their success, and move on to new ideas if they are not constructive. The sector should then be less embarrassed about admitting failure, and better at sharing these examples of what does and does not work, to prevent unsuccessful ideas and pilots being repeated in other councils. (29 March 2017)

DCLG: Multi-million pound boost for community-led services: the Communities Minister Andrew Percy has announced new funding to community-led efforts giving local people greater control over local services. More than 54 projects will receive a share of over £3m from the Communities Fund to help deliver additional services. (6 April 2017)

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

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Economic Development

DCLG: £40 million cash boost for the coast: announces the award of further funding through the Coastal Communities Fund (CCF), which aims to encourage economic growth and jobs in coastal towns and communities. The Government has also published the third CCF Annual Progress Report that takes a cumulative look back at the progress funded projects have made since the start of the programme in 2012. (3 April 2017)

Welsh Government: Quarter of a billion pound boost for Wales’ rural communities: the Welsh Cabinet Secretary for Environment and Rural Affairs has confirmed she is fully committing the remaining £223m tranche of funding under the Welsh Government Rural Communities – Rural Development Programme 2014 – 2020. The funding, a combination of Welsh Government and EU money, is an investment in key areas that will help rural communities to be more resilient during the post-EU transition period. (28 March 2017)

DCLG: Twelve new Enterprise Zones go live: announces 12 new EZs that will support businesses by offering business rates discounts and additional tax breaks, backed by a simplified local planning process. (4 April 2017)

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

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Education

HC Public Accounts Committee: Financial sustainability of schools: this report warns that school standards in England are at risk as schools are required to make savings during the most significant financial pressure since the mid-1990s. The Committee concludes that the DfE "does not seem to understand the pressures that schools are already under" and is not well-placed to act swiftly if efficiency measures threaten the quality of education and its outcomes. Funding per pupil is reducing in real terms and, if they are to manage within the funds available, mainstream schools in England must find efficiency savings rising from £1.1bn in 2016-17 to £3bn by 2019-20. The Committee is concerned that the DfE does not seem to have a plan to monitor in real-time how schools are making savings and their impact, instead relying on existing information such as Ofsted inspections and exam results. It also highlights the additional cost to schools of the new apprenticeship levy, the financial impact of which has not been set out by Government and from which schools "will only be able to benefit in a limited way". The Committee warns that the DfE does not seem to be learning from the experience of other sectors, "in particular from how over-ambitious efficiency targets in the NHS proved counter-productive". Schools facing reduced spending power need to reconcile financial, workforce and quality expectations, says the Committee, and the DfE must help them manage the risks. (29 March 2017)

DfE: Special Educational Needs and Disabilities – Disagreement resolution arrangements in England: Government report on the outcome of the review: sets out the main findings of the independent review that assessed how well new and existing routes for redress were working for children, young people and families when there was a disagreement about identifying and/or meeting SEN. The Government's response describes the steps it will take to respond to the issues raised. These include: publishing good practice guidance; supporting continuous professional development for LA staff; and to channel government support for families from April 2018 (when transition to EHC plans will be complete) to encourage constructive early dialogue and to ensure effective signposting and support for disagreement resolution. (29 March 2017)

DfE: £2.4 billion funding boost for England's schools: announces £2.4bn capital funding allocations to create new school places across the country, and to maintain and improve the condition of school buildings. This funding comprises £980m funding allocations for local authorities in 2019 to 2020, to create over 60,000 school places needed, together with £1.4bn funding allocations for schools, local authorities and academy trusts to invest in improving the condition of the school estate. (3 April 2017)

DfE: Government launches company to create more free schools: announces that the Government has set up a new public property company, LocatED, with a £2bn budget to acquire land and buildings across the country to help build 500 new free schools by 2020 and create 600,000 new school places by 2021. It will act on behalf of the Government to secure the right sites, at the right price, to ensure hundreds more free schools can open. (28 March 2017)

School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 (SI 2017/487): these regulations, which mainly come into force on 1 May 2017, amend SI 2012/1034 and SI 2012/1035 on the constitution of governing bodies of maintained schools in England to include a power for them to remove elected governors. This brings elected governors into line with every other category of governor for which there are already powers of removal . The regulations also make changes to correct defective drafting, comply with legislative practice, clarify the scope of a regulation and insert a consequential amendment. (30 March 2017)

Isle of Wight Council v Platt [2017] UKSC 28 (Sup Ct): the Supreme Court has allowed the Council's appeal on the meaning of “fails to attend regularly” in s.444(1) of the Education Act 1996. The case concerned whether a Fixed Penalty Notice was lawfully issued against a father, P, who took his daughter on holiday to Disneyworld in term time despite the school's refusal to permit the absence. P argued that her attendance rate was over 92% and so she had attended school "regularly".
The court made a declaration that: 'in s 444(1) of the Education Act 1996, “regularly” means “in accordance with the rules prescribed by the school'. The penalty notice was properly issued and, having failed to pay it, P should have been convicted of the offence with which he was charged unless he could establish one of the statutory exceptions. The case was returned to the magistrates with a direction to proceed as if P's submission of no case to answer had been rejected. (6 April 2017)

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

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Employment

Public Sector Apprenticeship Targets Regulations 2017 (SI 2017/513): the Apprenticeship, Skills, Children and Learning Act 2009 Act, as amended by the Enterprise Act 2016, enables the Secretary of State to set apprenticeship targets for  prescribed public sector organisations and to compel those organisations to have regard to the target and provide information on the extent to which that target has been met. These regulations, which come into force on 31 March 2017, prescribe which public bodies are in-scope of the target and set the target for the period from 1/4/2017 to 31/3/2021. As well as naming specific organisations, the regulations provide that the targets also apply to all public bodies with a headcount equal to or greater than 250, excluding those listed in Sch.2. The Government will issue statutory guidance on the regulations. (30 March 2017)

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

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Energy and Environment

Centre for Sustainable Energy: Survey of local authority wind policies: in June 2015 the Government published a Written Ministerial Statement changing the planning regime as regards onshore wind development. The policy changes place an effective moratorium on onshore wind projects without decisive and deliberate action from local councils or communities and increases the risk profile of the planning applications that are submitted. This report summarises the findings from research into how local planning authorities in England are responding to this change, the proportion that are planning for onshore wind developments in their areas, those who are devolving decisions to neighbourhood planning groups and the number of neighbourhood planning groups then progressing wind policies. The research also examined how the revised guidance is perceived by local authorities and the wider strategies being pursued by Local Planning Authorities to promote renewable energy. (4 April 2017)

DBEIS: Evaluation of the Green Deal Communities PRS funding: this report evaluates the private rented sector funding provided to local authorities within the Green Deal Communities project, that was set up in 2014 to support delivery under the Green Deal scheme. Four local authorities received an additional £2m in total to target and incentivise uptake of energy efficiency installations in the Private Rental Sector (PRS), to explore ways in which uptake of energy efficiency measures could be achieved in this notoriously hard to reach sector. The report contains lessons learnt from an evaluation which tried to assess the impact of the additional funding and understand which parts of the PRS incentive were helpful in driving installations. (30 March 2017)

DBEIS: Clean energy projects receive £24 million to keep towns warm: announces the nine projects that will receive a share of £24m funding over five years to help build their heat networks projects. There will also be around £200,000 in early stage funding for a further four authorities to develop their plans. This is the first round of funding from the £320m Heat Networks Investment Project fund that provides capital support for heat networks. (7 April 2017)

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

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Equality and Discrimination

Government Equalities Office: Caste in Great Britain and equality law: seeks views on how to ensure that there is appropriate and proportionate legal protection against unlawful discrimination on the basis of caste. The consultation sets out the background for an understanding of caste in Great Britain, and invites views on what, if any, legislative exceptions may be necessary if the legislative route is chosen. The consultation closes on 18 July 2017. (28 March 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: Legislating for the United Kingdom’s withdrawal from the European Union: the Government has published its Great Repeal Bill White Paper setting out its proposals for ensuring a functioning statute book once the UK has left the EU. It provides the detail about the repeal of the European Communities Act 1972, how EU law will be converted into UK law and how corrections will be made to the statute book, to ensure the law continues to function once the UK has left the EU. It states that "unless and until domestic law is changed by legislators in the UK, legal rights and obligations in the UK should where possible be the same after we have left the EU as they were immediately before we left. EU regulations will not be ‘copied out’ into UK law regulation by regulation. Instead the Bill will make clear that EU regulations, as they applied in the UK the moment before we left the EU, will be converted into domestic law by the Bill and will continue to apply until legislators in the UK decide otherwise". The paper confirms that ECJ case law will continue to be binding on UK courts, as it stands at the date of the exit – but after that date, the Supreme Court may come to a different conclusion if it "appears right to do so". It is, however, expected to use those powers "sparingly". Original provisions in Directives may also remain relevant, post-exit, when interpreting EU derived legislation.
There is also Guidance for businesses on the Great Repeal Bill. (30 March 2017)

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

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Finance

LGiU: Guide to crowdfunding for local authorities: crowdfunding has yet to become widely adopted among local authorities because councils are rightly cautious about new fads when it comes to handling public money. However, much of this caution comes from confusion about what exactly crowdfunding is, how it can be used in a local government context and how to weigh its risks and benefits. This guide aims to shed some light on this area so that people working in local government can make informed choices about if and how to get started. It explains the different types of crowdfunding, their uses within and outside local government, and contains practical tips for those who wish to give crowdfunding a try. (16 March 2017)

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

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Governance

DCLG: Commissioners withdrawn from London Borough of Tower Hamlets: the Secretary of State has written to Tower Hamlets LBC confirming that he is handing all executive functions back to and withdrawing commissioners from the Council. This follows confirmation that the Council is committed to on-going improvement. New general Directions have been put in place that require the Council to report progress to the Secretary of State on a quarterly basis over the next 18 months. (29 March 2017)

Welsh Government: Proposed reduction in the membership of the Brecon Beacons National Park Authority: seeks views on a proposal to reduce the size of the Brecon Beacons National Park Authority from 24 members to 18, bringing it into line with the Snowdonia and Pembrokeshire Coast NPAs. The consultation closes on 29 June 2017. (6 April 2017)

Public Authority (Accountability) Bill: this Private Member's Bill has been introduced into the Commons by Andy Burnham MP and received its 1st Reading. It sets a requirement on public authorities (including local authorities), public servants and officials to act in the public interest and with candour and frankness. It defines the public law duty on them to assist courts, official inquiries and investigations, enables victims to enforce such duties, creates offences for the breach of certain duties, and provides funding for victims and their relatives in certain proceedings before the courts and at official inquiries and investigations. It includes a requirement for all public authorities to have a Code of Ethics that promotes ethical behaviour, transparency and candour within the organisation, taking express account of the Seven Principles of Public Life, and that provides reasonable protection for whistleblowers and a complaints procedure for the public. (29 March 2017)

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

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Health and Safety

R v Havering BC [2017] EWCA Crim 242 (CA): the Council appealed against a £500,000 fine imposed by Southwark Crown Court for offences under the Health and Safety, etc Act 1974 and the Provision and Use of Work Equipment Regulations 1998. The offences arose out of an accident when a local authority employee received a serious laceration to the knee during the course of his work. He was asked to cut branches from a tree using a disc cutting machine that the manufacturers specifically advised against using for the cutting of wood; he was also not provided with the proper clothing for the job. The Council accepted that in passing sentence the judge could not be criticised for finding medium culpability and level A risk, with a high likelihood of harm; however, it criticised the process of sentencing when using the Sentencing Council's Health and Safety Offences Guideline, and the level of fine. The Council submitted that the sentencing judge should not have concluded that the presence of actual harm was an aggravating feature, where the level of harm which resulted was far below the level of risk of harm created by the offence, and that that where the actual harm was lower than the risk level, this should mitigate the sentencing range. It also argued that the judge should not have increased the sentence to reflect the turnover of the Council's business, and questioned the exercise of the sentencer's discretion to make a substantial reduction when fining public bodies or charitable organisations.
The court held, dismissing the appeal, that the sentence was not manifestly excessive. The offence was a significant cause of actual harm, and therefore the sentencing judge was required to consider moving up in the range of sentencing at step 2. He was entitled to go above the starting point of £1.3m to take account of actual harm caused and he had used the guideline correctly. The court was required to look at the Council's annual revenue budget, which, at £120m, put it in the “large category”, but much higher than the base point of £50m. The guideline envisaged the need to adjust the sentence range to reflect much larger organisations and the sentencing judge had had this in mind before applying a substantial discount at step 4. The sentencer had complete discretion to make a substantial reduction when fining public bodies or charitable organisations and in the level of reduction, and there was nothing in the Guideline nor any authority to support the Council's argument that a "substantial" reduction at step 4, when imposing a fine on a public body, should be at least 50 per cent. (9 March 2017)
The judgment is available on Lawtel (password required).

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

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Health and Social Care

DH: Integration and Better Care Fund Policy Framework 2017 to 2019: guidance for those responsible for delivering the Better Care Fund at a local level, including local authorities and health and wellbeing boards. It sets out the background to the integration of health, social care and other public services and provides an overview of related policy initiatives and legislation. It includes the policy framework for the implementation of the statutory Better Care Fund in 2017-19, and sets out proposals for going beyond the BCF towards further integration by 2020. Whilst there will now be no separate process for integration plans, the DH will provide a set of resources, integration models and indicators for integration to help local areas towards the goal of person-centred, coordinated care. (31 March 2017)

HC Communities and Local Government Committee: Adult social care: this report says that the Government needs to urgently review how social care is funded in the long term and address serious threats to social care provision. The report finds inadequate funding very seriously affects the quantity and quality of adult social care provision, impacting on those receiving care, the NHS, care staff, carers and providers. It sets out a number of recommendations relating to the monitoring of care services, care commissioning, and the care workforce. The Committee welcomes the Chancellor's commitment to provide an additional £2bn for social care over the next three years but finds this falls short of the amount required to close the social care funding gap. The Committee believes expenditure on adult social care will need to rise as a proportion of total public expenditure and recommends an urgent review of how to fund social care in the long-term. (31 March 2017)

LGiU: Paying for it – The human cost of cut-price care: this report looks at the human side of a care market on the brink of failure with stories from across the care system, and at why care is priced so low and how people in the system end up paying for cut-price care. it highlights how care providers are increasingly less willing to provide care under current commissioning arrangements because they simply cannot afford to do so. Some care providers are handing back contracts while other providers are simply choosing not to bid on uneconomic contracts, and some big providers are exiting the market altogether. It argues that we need radical reform in the way that we pay for and purchase care. The care market is on the point of collapse, and recent stop-gap funding will not address either the financial shortfall or the systemic market problems. (21 March 2017)

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

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Housing

DCLG: Response to the Communities and Local Government Committee’s report into Housing associations and the Right to Buy: sets out the Government's response to the Committee's February 2016 report that examined the policy decision to extend the Right to Buy to housing associations tenants. It states that the Government will proceed with the voluntary approach rather than mandatory legislation. It has reached an agreement with the National Housing Federation regarding a voluntary Right to Buy, whereby tenants of housing association properties will be able to buy their home with the equivalent discounts available to tenants in local authority properties. The Government is working with the National Housing Federation and the housing association sector to implement this voluntary Right to Buy. In the Autumn Statement 2015, the Government launched a pilot scheme with five housing associations, in specific local authority areas, and at Autumn Statement 2016, the Chancellor announced a large-scale regional pilot that will test key features of the policy and provide important evidence to inform the design of the main scheme. (4 April 2017)

DCLG: Tougher measures to target rogue landlords: highlights new powers coming into force that will give local authorities the tools to crack down on the small minority of rogue landlords who shirk their responsibilities. Councils are now able to impose fines of up to £30,000 as an alternative to prosecution for a range of housing offences. They will be able to retain all of the income to make sure it is used for private sector housing enforcement purposes. Rent repayment orders, which can be issued to penalise landlords managing or letting unlicensed properties, have also been extended to cover a wider range of situations. These include the illegal evictions or harassment of the occupiers of a property, using violence to secure entry and the breach of a banning order. Councils also have access to tenancy deposit protection data to help them identify rental properties in their area, and tackle the small minority of rogue landlords through targeted enforcement and prevention work.
There is also: 

(6 April 2017)

Short and Holiday-Let Accommodation (Notification of Local Authorities) Bill: this Private Member's Bill, has been introduced into the Commons by Karen Buck MP and received its 1st Reading. It requires householders to notify local authorities of an intention to register accommodation for short or holiday lets.  It introduces a light-touch online notification system that is mandatory for homeowners to complete, where they merely confirm the dates their property is to be used for short letting, thus enabling local authorities to know where short and holiday lets are taking place so that they are able to enforce effectively. The Bill is scheduled to have its 2nd Reading debate on 12 May 2017. (21 March 2017)

Relta Ltd v Greater London Authority [2017] EWHC 671 (Admin) (Admin Ct): the court quashed the Mayor of London's decision to designate Bromley Town Centre as a Housing Zone.  The Mayor's Prospectus dealing with HZs stated that what was required from a Borough which put in a bid for a HZ designation was that there would be a delivery of a minimum of 1,000 homes each on a brownfield site. Bromley's bid stated that the bid would unlock and accelerate mixed use development in the town centre, and in particular, it would see the delivery of 1,150 homes of which 35% were expected to be affordable. Without a HZ, it was said that there would be only 360 homes.
The court held that the prospectus was clear: it has to be shown that at least 1,000 new homes would be unlocked or accelerated by the HZ designation. It was clear that only two of Bromley's sites needed the interventions or the GLA funding. The Council had failed to meet the requirement for a minimum of 1,000 units which require designation to unlock or accelerate them. (30 March 2017)

Dove v Havering LBC [2017] EWCA Civ 156 (CA): the claimants were two sisters who were joint tenants of flat owned by the Council. They appealed against the grant of a possession order to the Council, which had claimed of the flat from them on the grounds that neither of them occupied the flat as her only or principal home, and there were serious rent arrears that justified the making of a possession order. The Council had had suspicions for a long time that neither of the claimants lived at the flat. Its investigations found that both sisters were in long-term relationships with men who lived elsewhere and that they spent the majority of their time at their partners' homes.
The court held, dismissing the appeal, that the issue before the judge was not whether either claimant was occupying the flat as a home; it was whether either of them was occupying that flat as her principal home. The judge's findings of fact were clear to the effect that neither of them was. An intention to retain a flat as a place to be alone was certainly a factor in considering whether the flat was occupied as a home, but it was of little help in deciding whether that flat was a person's principal home. The judge was entitled to conclude on the evidence that neither sister was occupying the flat as her principal home when the notice to quit was served and took effect so neither was a secure tenant. The Council was therefore entitled to possession without the need to prove a statutory ground. (22 March 2017)

Sheffield City Council v Oliver [2017] EWCA Civ 225 (CA): O challenged the Council's ability to recover a service charge in connection with its carrying out of large-scale repairs and improvements to O's flat and to the block of flats and maisonettes of which it formed part. The issue was whether, when quantifying a service charge payable by a lessee under a long lease of residential property, credit must be given by the lessor in respect of a third party contribution towards the cost of carrying out repairs and improvements to the property, so as to avoid any element of double recovery by the lessor.
O was a former social housing tenant who exercised her right to buy her flat. The service charge provision in her lease required her to pay a reasonable part of the Council's costs incurred in carrying out repairs and improvements to the structure and exterior of the building, including exterior cladding. The Council carried out a large-scale refurbishment of the estate and sought to recover £615,324 from its long leaseholders under the service charge provisions; O's portion was nearly £9,400. The Council had received almost £3m funding from the CESP scheme for the cladding works. The Upper Tribunal upheld O's claim that this funding should have been deducted from the service charge calculation, to avoid double recovery. The Council could not calculate the service charge without reference to the receipt by it from a commercial third party of funds specifically intended to meet the cost of part of the works. It concluded that the fairest way to deal with apportionment was to allow for a 50% deduction of that funding.
The court held, dismissing the Council's appeal, that on construction of the lease, the avoidance of double recovery was a matter to be taken into account when determining a "fair proportion" of the Council's incurred costs, expenses and outgoings to be paid by the lessee. The court had to determine the fair proportion of the Council's costs incurred to be levied as a service charge upon O, without having first to conclude that the Council's apportionment was unfair or unreasonable. The court would not depart from the Upper Tribunal's 50% apportionment, since it was within the range of fair outcomes available to the decision maker. (4 April 2017)

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

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Libraries

DCMS: Libraries – Alternative delivery models toolkit: this toolkit is designed to support library service managers, council commissioners and transformation teams, councillors, Friends Groups and community groups to consider the desirability, viability and feasibility of a range of alternative delivery model (ADM) options for their library services. It demonstrates and describes a staged approach to investigation and establishment. It also describes the characteristics and potential advantages/disadvantages associated with each type of ADM. It has a number of template documents, including a Business Plan, and also an overview of the main types of incorporated legal form and some of their important characteristics.
DCMS has also issued an updated Libraries shaping the future: Good practice toolkit. (28 March 2017)

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

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Licensing

HL Select Committee on the Licensing Act 2003: Post-legislative scrutiny: in the 11 years since the Licensing Act has been in force, hardly a year has gone by without major piecemeal amendments. The Lords Committee has concluded that the 2003 Act is fundamentally flawed and needs a radical overhaul, including the abolition of local authority licensing committees. The Committee was shocked by some of the evidence it received on hearings before licensing committees, with decisions described as 'something of a lottery', 'lacking formality', and 'indifferent', with some 'scandalous misuses of the powers of elected local councillors'. The Committee's main recommendation is that there should be a trial merger of licensing committees with planning committees, and that planning inspectors should hear licensing appeals as well. Other recommendations include: 

  • the repeal of the Late Night Levy, which does not pay for the cost of policing as intended, and in its current form is fundamentally wrong in principle and in practice; 
  • fees for licensing should be set locally, not nationally. In doing so, local authorities must bear in mind that there are doubts about the legality of any element of a fee which goes beyond what is needed to process the application.

(4 April 2017)

Guildford BC: Uber driver fined for illegal plying for hire: reports that Guildford Magistrates' Court has fined an Uber driver £300 with costs of £1,100 and a £30 victim surcharge, after the Council prosecuted him for illegally plying for hire in the town centre. The prosecution arose after the driver agreed to take a member of the Council's licensing staff on a journey that was not pre-booked, which is illegal. (17 March 2017)

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

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Maladministration

Public Services Ombudsman for Wales: Ending groundhog day – Lessons from poor complaint handling: this thematic report highlights cases from across devolved public services in Wales where investigations by public bodies have been inadequate and failed the service user. It concludes that a “fear and blame” culture within Welsh public sector bodies must be tackled if lessons are to be learnt from complaints. Other themes arising from the cases include inappropriate involvement of staff complained about, delayed, incomplete or inaccurate responses and inadequate investigation of complaints. In some instances, the way in which complaints have been handled, and the subsequent outcome, were found to be "nothing less than absurd"; and strong leadership was needed to ensure a lasting impact for service users. The Ombudsman called for effective governance across the Welsh public sector, robust staff training and improved methods of data collection. (23 March 2017)

LGO: Ombudsman finds systemic problems with Barnet’s homelessness services during investigation: the LGO has recommended that the Council provide a homeless woman with a written decision on her homelessness application, and pay her £300 to reflect her lost review and appeal rights, after its failure to review her situation properly resulted in her being left street homeless over the winter months. She approached the Council four further times over the following 15 months, but on each occasion she was told she was not a priority need and given advice on contacting charities for support. On no occasion did the Council give her a formal decision about her homeless status, that they are legally obliged to do. The Ombudsman also stated that the Council should ensure that in future, homelessness applications are taken and decision letters issued in all appropriate cases. (23 March 2017)

LGO: Somerset council fails to inform agencies when mother removes her children from the UK without father’s consent: reports that the LGO has asked a county council which failed to alert border agencies when a mother took her children to Australia without their father’s consent, to pay the father’s expenses to return them, amounting to £4,000, plus £1,000 for the distress, anxiety, anger and frustration he experienced. The LGO investigation criticised the way the council handled the passport applications. It also found fault with the council’s failure to seek legal advice or notify the relevant agencies of the mother’s travel intentions. The investigation also found fault with the length of time the council took to investigate the father’s complaint. (24 March 2017)

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

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Procurement

HC Public Accounts Committee: Crown Commercial Service: this report examines the Crown Commercial Service (CCS), which was established in 2014 with the aim of centralising £13.4bn of central government spending and to carry out direct buying services on behalf of all departments. The Committee concludes that the creation of CCS was poorly executed and progress in centralising procurement has been slow, with CCS only managing £2.5bn of spend on behalf of seven departments instead of the £13bn, on behalf of all 17 departments, predicted in 2014. (24 March 2017)

Bombardier Transportation Ltd v Merseytravel [2017] EWHC 575 (TCC): this procurement case raised an issue as to the balance to be achieved between open justice and confidentiality in public procurement disputes. During the course of proceedings, the court was informed that all public procurement claims were being marked on the court file as "private", so that access to the court file in such cases was being routinely denied. The claimant, BT, then applied for an order pursuant to CPR 5.4C that neither the Particulars of Claim, nor the confidential annexes attached to it, should be provided to non-parties. The court noted that the yet to be finalised draft "Guidance Note on Procedures for Public Procurement Cases", produced by the public procurement bar and TCC judges, set out how potentially confidential information should be dealt with in procurement disputes and provided a clear and practical answer to the balancing exercise. The TCC was committed to open justice and, on any application to keep parts or all of a pleading or an annex confidential, the court would start on the assumption that the document should be made publicly available. However, assessing the material in procurement disputes could be a difficult exercise and there were sometimes legitimate commercial interests which might point in the other direction. All those involved in procurement disputes in which there are confidentiality issues should follow paras.27-31 of the draft Guidance Note. (24 March 2017)

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

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Public Health

ADPH: Public health in local government – A model for public sector reform: the transfer of public health to local government, despite a number of challenges, has resulted in a number of positive improvements to the function. It is also having a wider impact on the way local government operates in its place-shaping role. This paper identifies ten reasons for this success and describes how this is relevant to wider public sector reform. (9 March 2017)

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) (Amendment) Regulations 2017 (SI 2017/505): these regulations, which come into force on 1 April 2017, amend SI 2013/351 to require ongoing provision by local authorities of five health and development assessment and reviews, as set out in the DH's Child Programme, to be offered to pregnant mothers and children between the ages of 0 – 5. These duties were originally introduced on a time limited basis with an expiry date of 31 March 2017. This SI removes the expiry date, so that the duty on local authorities will continue after 31 March 2017. (30 March 2017)

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

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Regulatory Services

DBEIS: Growth duty – Statutory guidance: this guidance clarifies how regulators can work in accordance with the Growth Duty under the Deregulation Act 2015. In essence, this is by applying an understanding of the business environment, their business community and individual businesses that they regulate and the impact of their activities on businesses to ensure that they are acting where needed, and in a proportionate manner. The Growth Duty requires regulators to have regard to the desirability of promoting economic growth, alongside the delivery of protections set out in relevant legislation. It applies to most national regulators but not to local authorities nor fire and rescue authorities. (30 March 2017)

DBEIS Regulatory Delivery: RD enforcement – Approach to business regulation: the Regulatory Delivery team has published four documents for businesses that they regulate. The guides explain what businesses can expect from them, specify their approach to dealing with non-compliance, explain how to complain or comment about their service, and clarify statutory and non-statutory rights to challenge or appeal regulatory actions or decisions. (3 April 2017)

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

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Scrutiny

CfPS: Overview and scrutiny in combined authorities – A plain English guide: a straightforward guide for officers and members on the legislation as it relates to scrutiny in combined authority areas. The guide covers areas such as: the role of scrutiny, resourcing the function, who should form part of the combined scrutiny group, who to chair committees, and co-opting. (2 March 2017)

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

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