Brief details of recent Government policy and legal developments relevant to those involved in local government work
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 four weeks. Items are set out by subject, with a link to where the full document can be found on the internet.
If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.
All links are correct at the date of publication. The following topics are covered in this update:
|Access to Information||Health and Social Care|
|Adult Social Services||Housing|
|Environmental Services||Public Health|
Holmes v Information Commissioner & Cumbria CC (Dismissed : Freedom of Information Act 2000)  UKFTT 2016/0256 (GRC): H made an FOI request to the Council for a copy of Counsel's Opinion and Instructions to Counsel. The Council refused, relying on s.42 FOIA 2000 (legal professional privilege). On review, it decided that the applicable disclosure regime was the Environmental Information Regulations 2004 and confirmed that it was withholding the requested information under reg.12(5)(b). The IC upheld the Council's decision, ruling that the EIR was the applicable regime for consideration of disclosure of the requested information, that reg.12(5)(b) was engaged, but that the balance of public interest favoured withholding the information.
The Tribunal held, dismissing the appeal, that the information requested was correctly considered under the EIR as it was information “on” a measure affecting land. The request for disclosure of information subject to legal professional privilege did not serve automatically to engage the exception, but the advice concerned was obtained in relation to a contentious decision and at the time of the request, judicial review proceedings were considered likely. The course of justice would be adversely affected by the disclosure of the Council’s legal advice because it would place the Council at a disadvantage in legal proceedings which were reasonably anticipated at the time of the request and which had since come to pass. The public interest generally favoured maintaining the exception so as to withhold from disclosure information subject to legal professional privilege. (12 May 2017)
If you wish to discuss any of the items noted in this section please contact Jonathan Moore.
Preventing and Combating Violence against Women and Domestic Violence (Ratification of Convention) Act 2017: this Act has received Royal Assent and comes into force on 27 June 2017. It encourages the Government to ratify the Istanbul Convention, by requiring the Secretary of State to lay a report before each House setting out the steps required to enable the UK to ratify the Convention, and the timescale within which this is expected to happen. The UK signed the Convention on 8 June 2012 but has yet to ratify it. (27 April 2017)
Welsh Government: Draft supporting people programme guidance and outcomes framework: the Supporting People Programme helps vulnerable people to live independently in their own home or supported housing. In 2012 the current programme was rolled out following the merger of two separate grants into the Supporting People Programme Grant. This consultation seeks views on draft new guidance that has been revised to include substantial legislative changes over the past five years. The consultation closes on 4 August 2017. (15 May 2017)
R (Liverpool City Council) v Secretary of State for Health; Secretary of State for Communities & Local Government (Interested Party)  EWHC 986 (Admin) (Admin Ct): four English councils applied for judicial review of the Government's "ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the Deprivation of Liberty (DOLS) regime". They argued that the financial shortfall suffered by councils across the country generally was somewhere between £0.33bn and £0.66bn each year and that the Government must meet that shortfall. They sought a declaration that, by his failure to meet those costs, the Health Secretary had created an unacceptable risk of illegality and was in breach of the New Burdens Doctrine (NBD) policy, along with a mandatory order requiring the Health Secretary to remove the "unacceptable risk of illegality" and to comply with that doctrine. The court refused the application, ruling the claim was brought out of time, with no good reason for extending time. It would plainly be prejudicial to good administration for budgetary decisions taken in 2016 to be quashed as a result of an application made almost three months later.
The court then considered the merits of the main claim. The judge rejected the argument that the funding to the claimants created an unacceptable risk of illegality. The evidence did not come close to establishing that any of the claimant local authorities was unable to meet the costs of complying with its duties under the DoLS regime. On the evidence it was, and would continue to be, extremely difficult, and complying with those obligations would necessitate diverting substantial sums from other parts of the Councils' budgets. But it did not establish that the proper funding of the DoLS regime could not be achieved. The claimants did not suggest that the total sums available to them were insufficient to meet the total cost of complying with all their statutory duties so there were no grounds for contending that the Government decisions on funding created any risk of illegality at all. The local authorities were obliged to comply with their DoLS duty; they were not so underfunded as to make compliance with that statutory duty impossible; they could not properly plead lack of funds as an explanation for not doing so. Therefore there was no risk of illegality as a result of the Government's funding decisions.
Nor did the failure to provide further funding constitute a breach of a legitimate expectation. The NBD could not be read as providing a promise by central Government to make good the difference between the costs of DoLS and the estimates of those costs before the Supreme Court's decision in Cheshire West & Chester Council v P  UKSC 19. There was no statement in the NBD which promised, expressly and unambiguously, that local authorities would receive more funding from the Government if a court judgment altered the understanding of what was required of local authorities. A legitimate expectation could not be constructed by an amalgam of remarks by a public authority unless read together they provided the necessary clear and unambiguous promise. The DH's note of 28 March 2014 did no more than draw councils' attention to the Supreme Court's judgment in Cheshire West and make suggestions as to how local authorities might consider meeting the obligations identified in there; it contained no new promise of funding. (2 May 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
R (Khodari) v Cedarpark Holdings Inc  EWCA Civ 333 (CA): the court held that a requirement in a grant of planning permission that the developer enter into an obligation that no one who occupied the additional flats in a building would apply for a resident's parking permit, was not capable of being a planning obligation under s.106 TCPA 1990. The s.106 powers were to restrict the use of "the land" or to require "the land" to be used in a specified way. The use which the Council sought to prevent was not use of any particular flat in the building, but use of the highway for parking. However, it was valid under s.16 of the Greater London Council (General Powers) Act 1974 which required that the agreement be made "in connection with the land". The phrase "in connection with" had a wide meaning. There was here a "connection" between use of the three additional units for residential purposes and the potential for the grant of additional parking permits, not least because a qualification for a parking permit was residence within the borough. Therefore there was a sufficient connection between the requirements imposed by the deed and the proposed development. (11 May 2017)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
IFS: Public sector pay in the next Parliament: this briefing note analyses the Conservative, Labour and Liberal Democrat plans for public sector pay, and looks at the implications of their policies for the public sector. (19 May 2017)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
DEFRA: Improving air quality – National plan for tackling nitrogen dioxide in our towns and cities: seeks views on seeking views on a revised National Plan to reduce levels of nitrogen dioxide around roads within the shortest possible time - the most immediate air quality challenge. The options are designed to reduce the impact of diesel vehicles, and accelerate the move to cleaner transport. Local authorities are already responsible for improving air quality in their area, but will now be expected to develop new and creative solutions to reduce emissions as quickly as possible, while avoiding undue impact on the motorist. The consultation includes a draft UK Air Quality Plan for tackling nitrogen dioxide and a Technical Report with details of the modelling techniques and assumptions used in the draft Plan. The consultation closes on 15 June 2017. (5 May 2017)
DEFRA: Clean Air Zone Framework – Principles for setting up Clean Air Zones in England: sets out the principles that local authorities should follow when setting up CAZs in England. It explains the approach they should take if they are introducing a zone to improve air quality, and the types of measures they should include. (5 May 2017)
If you wish to discuss any of the items noted in this section please contact Nadeem Arshad.
R v AB  EWCA Crim 534 (CA): the appellants, AB, were awaiting trial on a charge of conspiracy to defraud the Legal Aid Agency (LAA). The prosecution was brought by Thurrock Council following an investigation by its Fraud Investigation Department (FID) – this was a counter fraud and criminal investigation service responsible for the prevention, detection and deterrence of economic crime committed against the public purse. The FID had entered into an agreement with the LAA to use the Council's specialist investigative resources to investigate allegations of fraud and corruption taking prosecution action (where necessary) against offenders. AB contended that the Council had no power to bring the prosecution under s. 222 LGA 1972. The judge found that the prosecution was valid.
The CA held, allowing the appeal, that the Council had no power to prosecute under s.222 and the proceedings must continue with the DPP conducting the prosecution. The power under s.222 referred to the promotion or protection of the interests of the inhabitants of the local authority's area. Here, the Council's decision to prosecute fell outside the ambit of its broad powers under s.222. There were no proper grounds for it to consider that that it was expedient for the promotion or protection of the interests of the inhabitants of Thurrock to prosecute AB, and not to refer this very serious matter to the DPP for prosecution. For the requirements of s.222 to be met, the interests of the inhabitants of Thurrock had to be engaged over and above their interests merely as ordinary citizens of the nation. The FID was patently a purely commercial enterprise, the link with the interests of the Council's inhabitants being illusory at best. Such a general financial justification did not meet the requirements of s.222, otherwise any local authority would be able to offer a prosecution service or a defence service to any individual or organisation prepared to pay for it, which could not have been Parliament's intention. The Council's argument was not helped by the fact that local authorities were now encouraged to be profit-making nor by initiatives such as the Localism Act 2011. Section 222 empowered a local authority only to prosecute in the specific interests of its own inhabitants, even if broad policy considerations could be taken into account. Nor did the Council have a common law power to prosecute more generally. (28 April 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
SOLACE: Using evidence in scrutiny – A practice guide for local government scrutiny: this guidance provides practical tips for scrutiny practitioners to make it easier for them to deploy, identify, secure and understand the evidence they need for first class scrutiny. It sets out the importance of evidence-based decision making in local government policy, how to understand and use evidence effectively in scrutiny, and guidance on where to find ‘good’ evidence. It also holds a key message that not all the evidence that comes before scrutiny should be treated in the same way and given the same weight. (17 May 2017)
R (ClientEarth) v Secretary of State for Environment, Food and Rural Affairs  EWHC B12 (Admin) (Admin Ct): DEFRA applied for an extension of time to a court order requiring it to publish a draft modified Air Quality Plan by 24 April 2017 and a final Plan by 31 July 2017. DEFRA suggested that the draft should be put back to the end of June "on account of Purdah restrictions in place as a result of the forthcoming local and general elections". Cabinet office guidance stated that "Departments should not take any steps during an election period that would compete with parliamentary candidates for the public's attention" and that "Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election provided that such postponement would not be detrimental to the national interest or wasteful of public money".
The court held, refusing the application, that "Purdah" described the period before an election in which ministers, public servants, councillors and officials were expected to refrain from taking controversial decisions. It was not a principle of law and the Cabinet Office guidance was convention which had to give way to a duty under statute or an order of the court. The concept would be carefully taken into account by the court in reaching decisions which affected central and local government in the period immediately before elections; however, it did not bind the courts. A breach of the rules of Purdah could constitute a legal wrong, but enforcement of it was not a legal right vouchsafed to the Government. The general principles set out in the Cabinet Office Guidance applied and in general terms supported the Secretary of State's application. However, the weight to be attached to the general principles in the guidance in the case of the General Election was not overwhelming. The guidance acknowledged that it was open to the Government to launch public consultations during the run-up to an election if there were "exceptional circumstances which make that launch essential". Here there were exceptional circumstances which made the publication of the draft plan and the commencement of the consultation on it essential. The Government's continued failure to comply with the EU Directive and the Air Quality Standards Regulations constituted a significant threat to public health. The court would extend time so as to enable the local elections to be conducted, and the new councillors to take up their posts, before the draft was published but declined to extend time to cover the General Election period. The draft plan was to be published the day after the local elections and the date for the publication of the final plan was unchanged. The Government has since published its Air Quality Plan – see below. (27 April 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
IFS: Social care – A step forwards or a step backwards?: discusses the Conservative Party's proposed changes to the rules governing who is eligible for government funding for social care, and its backing away from a lifetime cap on care costs, along with their potential effects. (19 May 2017)
IFS: Public spending on adult social care in England: this briefing note describes how local authority spending on adult social care has evolved since 2000-01, what could happen to spending under current plans, and the challenges faced by social care in the long run. (3 May 2017)
Centre for Mental Health: Social care and the mental health forward view – Ending out of area placements: this is the first briefing in Centre for Mental Health's 'We need to talk about social care' series. It looks at the human and operational costs of out of area placements and highlights the way in which Bradford MDC has managed to reduce out of area placements and use of local private sector hospitals down to zero over the past two years. (28 April 2017)
Welsh Government: £20m extra every year for social services: announces an additional £20m p.a. that will be invested in three priority areas: workforce costs; children in care; and respite for carers. The funding has been made available as a result of consequential funding from the UK Government’s March budget, will help ensure the system is sustainable for the future and responds to the pressures facing local government. (17 May 2017)
The King's Fund: What is social care and how does it work?: these resources help to explain social care in England, including a series of short videos on what social care is, how it’s provided and how it's paid for. (11 May 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Welsh Government: Regulatory reform of registered social landlords: seeks views on reforms that will enable the ONS to reclassify RSLs back to the private sector for accounting purposes, including: disposal consents; power to direct the permitted use of disposals proceeds; restructuring and dissolution; regulatory powers; and local government controls. Once the relevant controls are removed or amended, ONS would be able to consider reclassifying RSLs in Wales to the Private Non-Financial Corporations sector, thus mitigating the impacts and budgetary concerns. The consultation closes on 3 July 2017. (8 May 2017)
Poshteh v Kensington & Chelsea RLBC  UKSC 36 (Sup Ct): P was a refugee from Iran. She refused the Council's "final offer" of permanent accommodation on the grounds that the accommodation offered had features which reminded her of her prison in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety attacks and other conditions from which she suffered. The CA upheld the Council's decision that these grounds were insufficient to justify her refusal and therefore the Council's duty under s.193 of the Housing Act 1996 had come to an end.
The court held that it would not depart from its decision in Ali v Birmingham City Council  2 AC 39 that the duties imposed on housing authorities under Part VII of the 1996 Act did not give rise to “civil” rights or obligations, and that accordingly art.6 ECHR had no application. The decision of the ECtHR in Ali v United Kingdom (2016) 63 EHRR 20 to the opposite effect was not a sufficient reason to depart from its fully considered and unanimous conclusion. (10 May 2017)
Sutton Housing Partnership Ltd v Rydon Maintenance Ltd  EWCA Civ 359 (CA): this case concerned the construction of a local authority housing repair and maintenance contract. The contract provided that SHP could terminate the contract "where the Service Provider's performance of the Works is worse than the Minimum Acceptable Performance level for any one or more KPIs". "Minimum Acceptable Performance" was defined as "the minimum level of performance as measured by a KPI". SHP served a notice terminating the contract for Service Provider Default. RM contended that SHP could not terminate the contract under that condition as the contract did not specify any Minimum Acceptable Performance levels (MAPs). SHP argued that the contract specified certain MAPs either expressly or by implication. The TTC ruled that, on the proper construction of the contract, the contract did not provide for the MAPs.
The court held, allowing SHP's appeal, that the contract was a commercial one, made between a local authority and a building contractor. RM could only receive bonuses under the incentivisation scheme, and SHP could only use their valuable power to terminate for poor service, if the contract contained MAPs. Therefore both parties must have intended the contract to specify MAPs. The contract properly construed must mean that the three so-called "examples" MAPs in the framework were the actual MAPs for the relevant year, not hypothetical MAPs by way of illustration. (18 May 2017)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
LGA: What the manifestos say – General Election 2017: the LGA has produced some handy guides that list the policy pledges from the Conservatives, Labour, Liberal Democrats, UKIP and Greens, grouped by eight different policy areas. (26 May 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
NLGN: Social value in procurement: the Public Services (Social Value) Act 2012 requires commissioners in public authorities to have regard to economic, social and environmental well-being when buying public services. Public bodies are now encouraged to make social value a consideration and look for providers who can also deliver value to the local community for minimal or no additional cost. This publication follows a workshop held in December 2016, with attendees from local authorities and the private sector. It looks at the background to including social value in procurement processes, as well as how its aims can best be achieved in practice. (8 May 2017)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
National Assembly for Wales: Public Health (Wales) Bill: this Bill has been passed by the National Assembly and is currently at Post Stage 4 standstill period during which questions as to the Assembly’s legislative competence can be referred to the Supreme Court for decision prior to Royal Assent. (17 May 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.