Authority Update 21/4/17

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

24/04/2017

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:

    Adult Social Services    Health and Safety
    Audit    Health and Social Care
    Children's Services    Housing
    Combined Authorities and Devolution    Leisure and Recreation
    Commons and Village Greens    Licensing
    Education    Planning
    Elections    Police
    Emergency Planning    Ports and Harbours
    Environmental Protection    Procurement
    Governance    Public Health

Adult Social Services

Independent Age: Care home performance across England: this briefing uses CQC data (taken from January 2017) to present care home performance by region and local authority. The research shows a stark variation in the quality of care homes at a regional and local authority level across England. (11 April 2017)

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

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Audit

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2017 (SI 2017/536): these regulations, which come into force on 1 May 2017, amend SI 2003/3146 to provide that in the case of a Mayoral development corporation, a capital receipt may be used to meet any liability to pay corporation tax. Second, they amend the calculation of the sub-liability that forms part of the  local authority's poolable amount payable out of capital receipts from the disposal of housing land. (7 April 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: Joint inspections of the response to children experiencing neglect, May to December 2017: the Government has announced that a new set of inspections will examine how local partner agencies – Ofsted, CQC, HMI Constabulary and HMI Probation – are working together to protect children living with, or at risk of, neglect. The inspections will focus on the experiences of children aged between 7 and 15 years old, who may be at higher risk of going missing or being exploited, or who exhibit challenging behaviours in adolescence. This guidance sets out how the inspections will work in practice. (18 April 2017)

Ofsted: Guide to registration for children's social care services: updated guidance for children's homes and agencies on how to register with Ofsted, including help with online applications. It provides information about the application process to register specific social care services under the Care Standards Act 2000, and explains what processes the application will go through before Ofsted can decide whether the applicant is fit for registration as a social care provider or manager. (21 April 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

DCLG: Devolution and mayors – What does it mean?: DCLG has produced a series of guides that explain the powers being transferred to English regions and new mayoral responsibilities. They provide more information about the powers and budgets being passed down to each of the six English city regions plus Cornwall, and who will be responsible for what. (12 April 2017)

IPPR: England’s new leaders – How mayors can transform their cities: this report addresses the gaps in policymaking that will enable the new Combined Authority mayors to deliver on the opportunity to transform their city regions. It sets out the three enabling policies that mayors need to introduce: cutting across local and national silos to deliver against clear objectives, raising finance to invest, and gathering intelligence in order to enable innovation. The paper then sets out a menu of 30 things that these mayors could do to change their city regions for the better, across five broad outcomes. (10 April 2017)

Electoral Reform Society: From city hall to citizens’ hall – Democracy, diversity and English devolution: this report looks at the model of governance that mayors will work within. It asks what this means for political and public scrutiny when additional powers are being taken on and what the representative make-up of the new institutions will look like. It also considers the scope for public involvement, not only in electing mayors but more fundamentally in shaping how local democracy works in 21st century England. (18 April 2017)

Centre for Cities: 5 ways the General Election could affect the metro mayor campaigns: considers the impact on the mayoral election campaigns of the Prime Minister's announcement of a snap General Election on 8 June. (18 April 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

Commons Act 2006 (Commencement No. 4) (Wales) Order 2017 (SI 2017/564 (W.133) (C.51)): this Order brings specified provisions in the 2006 Act into force in Wales on 10 April 2017. The commenced provisions relate to correction and non-registration or mistaken registration under the 1965 Act. (9 April 2017)

Commons Act 2006 (Correction, Non-Registration or Mistaken Registration) (Wales) Regulations 2017 (SI 2017/566 (W.135)): these regulations, which come into force in Wales on 5 May 2017, prescribe the procedure for applications and proposals under se.19 of, and Sch.2 to, the Commons Act 2006 regarding applications and proposals to amend the registers. (13 April 2017)

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

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Education

DfE: Careers guidance and inspiration in schools: statutory guidance for governing bodies, school leaders and school staff issued under s.42A and s.45A of the Education Act 1997. It outlines why schools (and local authorities that maintain pupil referral units) must secure independent careers guidance for young people, what they must do to comply with their legal responsibilities in this area and the role of the governing body and head teacher in shaping the guidance and support offered by the school. (12 April 2017)

DfE: Primary school accountability in 2016 – A technical guide for primary maintained schools, academies and free schools: the Government introduced a new primary school accountability system in 2016. This updated guide explains how it will calculate primary school accountability measures. The amendments include proposed changes to methodology in 2017 for including pupils below the standard of the test in the progress measures; it also confirms that DfE will set thresholds for floor standards and coasting definition for 2017 in the autumn. (20 April 2017)

DfE: More than 130 new free schools to create more good places: announces that the DfE has approved applications for 131 new schools under Wave 12 application round, creating more than 69,000 places. These schools include a grammar-school-led multi-academy trust (MAT) and a state boarding school.
The DfE has also published a guide to new mainstream free school revenue funding: 2017 to 2018 which explains how much revenue funding mainstream free schools will receive. There is equivalent guidance for other types of free schools, such as special free schools, alternative provision free schools and studio schools. (12 April 2017)

DfE: A guide to new University Technical College revenue funding 2017 to 2018: sets outs how the revenue funding for new UTCs will be calculated and paid, based upon funding rates for the 2017 to 2018 academic year. It also sets out the importance of good financial health and the financial governance and accountability requirements for trusts. (12 April 2017)

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

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Elections

Cabinet Office: May 2017 elections – Guidance on conduct: guidance to civil servants in UK government departments, and the staff and members of non-departmental public bodies and other arm’s length bodies on their role and conduct during the forthcoming mayoral election campaigns on 4 May 2017. (10 April 2017)

Cabinet Office: General Election guidance 2017: guidance for all UK civil servants, and the board members and staff of Non-Departmental Public Bodies and other arms’ length bodies on the principles underlying the conduct of civil servants in the 2017 General Election. It applies from 22 April 2017. (20 April 2017)

LGA: Purdah – A short guide to publicity during the pre-election period: updated guide for local authorities on the publicity restrictions that should be observed by local authorities during the pre-election period. It has been revised to include guidance on the recently-announced General Election on 8 June 2017. It advises that local Authorities are in a period of 'heightened sensitivity' as set out in the local government Publicity Code, from 22 April 2017. In line with the principles set out in the Code, the LGA advises that extra care should be taken when undertaking anything which could directly, or be perceived to, affect support for a party or candidate and urges officers to seek advice from their Monitoring Officer at all times. The LGA also stresses that pre-election activity could also be wider than just publicity and could include such things as use of council facilities, resources, codes of conduct, developing new or controversial policies and holding events (including some meetings) featuring candidates. (20 April 2017)

HC Library: 'Purdah' before elections and referendums: discusses the specific restrictions on the use of public resources that are in place during the 'purdah' period before elections and referendums. Refers to Cabinet Office guidance for civil servants, statutory guidance for local authorities, and the Purdah period for referendums. (13 April 2017)

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

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Emergency Planning

Cabinet Office: Post implementation review report – Civil Contingencies Act 2004: summarises the Post Implementation Review of the Civil Contingencies Act (2004) Contingency Planning Regulations 2005. The 2004 Act, 2005 Regulations and guidance underpinning the legislation are designed to deliver a single framework supporting civil protection in the UK, with clear duties and tasks for responders in relation to emergencies and emergency planning. This report fulfils the requirement under Reg.59 for a review of the operation and effectiveness of the Regulations, focusing on their impact on businesses. (11 April 2017)

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

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Environmental Protection

DCLG: Litter strategy for England: this strategy sets out how the Government will work with different local groups, local authorities, Highways England and businesses to reduce litter. The proposals include:
• increasing fixed penalties for littering and related offences and introducing new regulations to help councils tackle littering from vehicles (see below);
• providing improved guidance for councils on how to use their enforcement powers proportionately and appropriately;
• producing new guidance on the design, number and location of public litter bins and other items of street furniture for local areas to help them reduce levels of litter;
• empowering local communities to take action, including piloting a new ‘litter innovation fund’; and
• creating a new expert group to look at further ways of cutting the worst kinds of litter, including plastic bottles and drinks containers, cigarette ends and fast food packaging.
The strategy also outlines measures to protect seas, oceans and marine life from pollution, building on the success of the 5p plastic bag charge, which has led to a 40% decrease in bags found on the beach. The Government will follow the strategy with a new national anti-littering campaign in 2018, working with industry and the voluntary sector to drive behaviour change.
Alongside the strategy, DEFRA has issued a consultation on Reducing litter: penalties for environmental offences that seeks views on proposals to increase the levels of fixed penalties for littering and other environmental offences, and to change how councils can use the income from such fixed penalties. It also proposes new regulations to enable councils to issue fixed penalties to the keeper of a vehicle from which litter is thrown, where the litterer cannot be identified. The consultation closes on 18 June 2017. (10 April 2017)

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

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Governance

Parish Council Governance (Principles of Public Life) Bill: this Private Member's Bill has been introduced into the Commons by Mims Davies MP, and received its 1st Reading. It provides for the governance and operation of parish councils in England, including that the Nolan Principles are at the heart of parish council governance. It would also restrict "horizontal multi-hatting" when an individual sits on multiple parish councils. (18 April 2017)

For guidance on "purdah" and the pre-election period, see above under Elections.

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

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Health and Safety

HSE: Post-implementation review (PIR) of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2012 (RIDDOR 2012) and 2013 (RIDDOR 2013) – Survey of local authorities (LAs) as health and safety duty-holders: HSE is interested in the impact of changes to RIDDOR over the past five years and whether they have succeeded in meeting their objectives of simplifying and clarifying the RIDDOR reporting requirements and reducing the burden of RIDDOR reporting. It is seeking comments from local authorities on how they complete RIDDOR reports as a health and safety duty-holder. The closing date for responses is 26 April 2017. (April 2017)

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

Independent Age: Care home performance across England: new analysis by an older people’s charity reveals a stark variation in the quality of care homes at a regional and local authority level across England. The North West is the worst performing region in England when it comes to the proportion of satisfactory care homes, whilst London is the best performing region. In some areas such as Stockport or Salford, older people and their families face little choice of quality care, with 3 in 5 homes rated not good enough.(11 April 2017)

IFS: National standards, local risks – The geography of local authority funded social care, 2009–10 to 2015–16: research by the Institute for Fiscal Studies, that was funded by the Health Foundation, has found that one in ten councils have cut spending on adult social care by more than a quarter. The report examines the extent to which the level of local authority social care spending per adult varied around England in 2015–16, and the extent to which these spending differences correlated with local demographic and socio-economic characteristics, and assessed local relative spending needs for adult social care as of the last official assessment in 2013–14. It also considers how social care spending has changed between 2009–10 and 2015–16. (5 April 2017)

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

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Housing

R (XC) v Southwark LBC [2017] EWHC 736 (Admin) (Admin Ct): XC applied for judicial review of the Council's decision as to how it applied its housing allocation scheme to her. XC was a single, disabled woman with mobility problems who was a council tenant. She was also a carer for her son, who had Asperger's Syndrome and who lived separately within the borough. XC was moved to a third floor flat in 2013. She made numerous complaints about the flat's location and about noise, but the Council refused to move her and classed her as in Band 4, of its housing allocation scheme, which was the lowest priority level. XC claimed that the Council's priority star system indirectly discriminated against disabled persons and against women who could not work because of caring responsibilities.
The court held, refusing the application, that the effect of the priority star scheme was indirectly to discriminate against those with disabilities and against women. To make available a "star" which increased the prospect of achieving preferential housing and which could more readily be acquired by those without a disability, was to discriminate against the disabled by subjecting them to a detriment. The scheme was indirectly discriminatory against XC; the critical question was whether that discrimination could be justified as being proportionate to the Council's legitimate aim of creating sustainable and balanced communities. By its very nature, the housing allocation scheme involved discrimination in order to achieve the stated aims – those who fell outside the groups given preference were, inevitably, exposed to a detriment. But that was integral to any reasonable preference scheme. Even though this allocation scheme did discriminate against those with the sort of disabilities of which the XC complained and against women with unpaid caring responsibilities, the Council had adopted a scheme which was the least intrusive possible and which struck the right balance. (6 April 2017)

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

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Leisure and Recreation

DCLG: Running free – Consultation on preserving the free use of public parks: seeks views on proposals to legislate to put it beyond doubt that local authorities, including parish councils, cannot charge Parkrun or Junior Parkrun for the use of public parks. In particular, the Secretary of State proposes to exercise his powers under s.151 LGHA 1989 to make regulations to prohibit, limit or repeal powers for a local authority to make a charge, which will also inform any future proposals to exercise his powers under s.5(3) of the Localism Act 2011 to prevent local authorities in England from using the General Power of Competence to charge Parkrun or Junior Parkrun for the use of a public park. It also considers on whether the proposals should be extended to other organisations or types of use of public parks. The consultation closes on 5 July 2017. (12 April 2017)

Guardian: Hundreds of children's playgrounds in England close due to cuts: reports that a series of freedom of information requests to local authorities reveals that hundreds of children’s playgrounds have been closed or are being closed by local authorities, with councils blaming “unprecedented budget constraints” for the decision to get rid of parks and sports facilities. The FOI requests found that 112 playgrounds were closed in the 2014-15 financial year, and a further 102 in 2015-16. Councils also revealed that they had 80 more closures in 2016-17, followed by plans for 103 in the current budget period and at least 51 closures planned for 2018. (13 April 2017)

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

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Licensing

Home Office: Revised guidance issued under section 182 of Licensing Act 2003: updated guidance to licensing authorities in relation to the carrying out of their functions under the 2003 Act. It also provides information to magistrates’ courts hearing appeals against licensing decisions and will assist those who run licensed premises, their legal advisers and the general public. (7 April 2017)

DCLG: Review of park homes legislation – Call for evidence Part 1: seeks evidence to inform that Government's review of the Mobile Homes Act 2013 that introduced new procedures for selling mobile homes, reviewing pitch fees and making site rules, and also introduced a new local authority site licensing regime which gave local authorities substantial new enforcement powers from 1 April 2014. The review will be in two parts: this paper calls for evidence on the fairness of charges, the transparency of site ownership and on experience of harassment. Part 2 will be issued in May 2017 and will cover: how effective local authority licensing has been; how well the procedures for selling mobile homes, making site rules and pitch fee reviews, are working and whether “fit and proper” controls need to be applied in the sector. The deadline for responses for Part 1 is 27 May 2017. (12 April 2017)

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

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Planning

DCLG: Brownfield registers and permission in principle – Frequently asked questions: information on local authorities' implementation of new brownfield registers of land suitable for housing, and permission in principle under the Town and Country Planning (Brownfield Land Register) Regulations 2017 and the Town and Country Planning (Permission in Principle) Order 2017. It states that the Government will publish statutory guidance to explain the policy for brownfield registers in more detail by Summer 2017. It will also set out its expectations for the operation of the policy and the requirements of the secondary legislation. (21 April 2017)

Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571): these regulations, which come into force on 16 May 2017, transpose changes made to the Environmental Impact Assessment Directive 2011/92 by EU Directive 2014/52 and consolidate the provisions of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824), as amended. See also the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/572) that transpose the same changes for development given planning consent through the nationally significant infrastructure planning regime and which consolidate the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (SI 2009/2263). (19 April 2017)

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

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Police

Home Office: Home Office funds PCCs to support further police and fire collaboration: announces that the Minister for Policing and the Fire Service Brandon Lewis has awarded £1m from the Police Transformation Fund to nine PCCs for their work in developing proposals to take on the additional responsibility under the Police and Crime Act 2017 for the governance of fire and rescue in their area. The proposals are expected to bring about a fundamental shift to the way in which police and fire services work together, including sharing estates or back office functions. It follows a police-led process which saw funding recommendations made by the Police Reform and Transformation Board. (12 April 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

Weymouth Port Health Authority Order 2017 (SI 2017/558): this Order, which comes into force on 31 March 2017, defines the Weymouth port health district and establishes the port health authority for that district. This is set up as a joint board, with representatives from Weymouth and Portland BC, Purbeck DC and West Dorset DC. Provision is also made for those authorities to contribute to the expenses of the joint board. (30 March 2017)

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

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Procurement

Crown Commercial Service: Social value policy: this statement outlines how the CCS will do more to help public sector bodies deliver additional social benefits in line with legislation, including the Public Services (Social Value) Act 2012. (20 April 2017)

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

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Public Health

DH: Tailored review of Public Health England: reports on the outcome of DH's tailored review that looked at PHE’s performance and effectiveness, efficiency, and governance. The main conclusion of the review was that PHE performs necessary functions and should continue to operate as an executive agency. The review report also contains recommendations to improve performance, governance and efficiency. (12 April 2017)

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

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