Authority Update 30/6/17

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

03/07/2017

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update: 

    Adult Social Services    Health and Social Care
    Charging and Trading    Information Technology & Communications
    Children's Services    Legislation
    Economic Development    Maladministration
    Education    Public Health
    Environmental Services    Rating
    Equality and Discrimination    Social Investment
    Finance  and Pensions    Standards
    Governance     Tortious Liability
    Health and Safety    Traffic and Transport

Adult Social Services

ADASS: Budget Survey 2017: sets out the findings from ADASS's annual analysis of the state of adult social care finances drawn from the experiences of current leaders in adult social care. It finds that the proportion of council spending on adult social care is set to increase by 1.3% per cent this year; however, councils are still having to make 8% cuts in overall budgets for a second year in succession due to increasing costs and demand. ASS directors plan to make further savings of £824m in 2017/18, taking cumulative savings in adult social care since 2010 to £6.3bn, but with a reported overspend of £366m against 2016/17 budgets, directors are finding it increasingly hard to implement planned cuts in practice. (28 June 2017)

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

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Charging and Trading

LGA: Enterprising councils – Supporting councils' income generation activity: updated guidance to local authorities on income generation. It sets out a considered approach to reviewing opportunities for trading and charging for services. It includes: an overview of key overarching considerations, such as developing a commercial strategy and undertaking the development of an options appraisal and business case; information on fundamental issues, such as relevant legislation, the skills, capability, culture and structure of service/s and social value; specific chapters on charging, trading, investment and market and competition factors that need to be considered when developing any options appraisal or business case; and a number of short case studies that highlight some of the innovative practice already achieving results for communities. (20 June 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

R (CO) v Lewisham LBC (Unreported, Admin Ct): siblings, aged 8 and 11 years old, applied for judicial review of the Council's finding that they were not children in need under the Children Act 1989. They claimed that the Council had failed to assess their needs properly, its decision was unfair and irrational; and it had breached its statutory duty to have due regard to the need to safeguard children.
The court held that the Council's duty under s.17 of the 1989 Act was an ongoing one and after the family were no longer in stable accommodation it had a duty to reassess their needs. It had failed to get a full and accurate picture of the family's situation and its failure to provide the mother with the opportunity to address its concerns amounted to procedural unfairness. The family's accommodation was insecure and inadequate, and it was irrational for the Council to have found that the children were not in need. Given that there were no other concerns about the care the mother gave to her children it was in their interest that they were housed together. The appropriate outcome was for the local authority to provide accommodation. It had not properly ensured that the children were safeguarded since March 2017 and so it had failed in its statutory duty. (16 June 2017)
The judgment is available on Lawtel (password required).

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

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Economic Development

Centre for Cities: Delivering change – How city partnerships make the most of public assets: this report. supported by Turner & Townsend and Bevan Brittan, outlines how cities have made use of their assets to increase revenue and support local economic growth, using their new powers. In particular, it sets out the ways in which cities have worked with other public, and private, sector partners in order to achieve the most from these assets. It urges authorities in the UK’s cities to work more closely together to promote local economic development – and provide the homes, workplaces, skills and transport that cities need to thrive. (20 June 2017)

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

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Education

Home Education (Duty of Local Authorities) Bill: this Private Member's Bill has been introduced in the Lords by Lord Soley and received its 1st Reading. The Bill requires local authorities to monitor the educational, physical and emotional development of children receiving elective home education. (27 June 2017)

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

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Environmental Services

Welsh Government: Local air quality management in Wales policy guidance: this statutory guidance covers all policy aspects of local air quality management (LAQM). It highlights how the Welsh Government wishes local authorities to adopt the five ways of working set out in the Well-being of Future Generations (Wales) Act 2015 when carrying out LAQM. As these ways of working include policy integration and collaboration with partners, this guidance does not confine itself solely to local authorities’ functions under the Environment 1995 but emphasises the importance of joined-up working to achieve multiple outcomes. (15 June 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

Equality Act 2010 (Amendment) (Disabled Access) Bill: this Private Member's Bill has been introduced in the Lords by Lord Blencathra and received its 1st Reading. The Bill amends the Equality Act 2010 to improve access to public buildings by introducing rules for step-free access. (27 June 2017)

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

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Finance and Pensions

R (Palestine Solidarity Campaign Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) (Admin Ct): PSC challenged the Secretary of State's statutory guidance to Local Government Pension Scheme (LGPS) administering authorities on preparing and maintaining an investment strategy. The guidance permitted ethical and social objections to a particular investment to be taken into account but stated that administering authorities were not to: "[use] pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government"; or "pursue policies that are contrary to UK foreign policy or UK defence policy". PSC was a pressure group that advocated boycott, divestment and sanctions against Israel and any company which supported Israel's occupation of the West Bank and Gaza Strip, and it lobbied both local and central government to persuade them to support those policies. It claimed that the guidance fell outside the proper scope of the SoS's statutory powers because it: was issued for non-pensions purposes; was unlawfully lacking in certainty; and was contrary to Art.18(4) of Directive 2003/41 on the Activities and Supervision of Institutions for Occupational Pension Provision.
The court held, granting the application, that the SoS had acted for an unauthorised purpose and therefore unlawfully in issuing the challenged part of the guidance. In singling out certain types of non-financial factors, concerned with foreign/defence and the other matters, and in stating that administering authorities could not base investment decisions upon them, he had not acted for a pensions purpose. Under the guidance, these factors could not be taken into account even if there was no significant risk of causing financial detriment to the scheme and there was no good reason to think that scheme members would object, yet the same decision would be permissible if the non-financial factors taken into account concerned other matters such as public health, the environment, or treatment of the workforce. The SoS had not justified the distinction drawn between these and other non-financial cases by reference to a pensions purpose.
The guidance was not unlawful for uncertainty as it was not so unclear as to be positively misleading or erroneous in law. Nor was it contrary to the Directive as it did not mandate investment or disinvestment in any particular class of asset. The Directive's purposes of ensuring the smooth functioning of the single market, in particular, the free movement of capital, and the manner in which Member States could legitimately govern the prudential investment decisions of occupational pension providers, were unaffected by the guidance addressing the non-financial decisions of providers. ( 22 June 2017)

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

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Governance

DCLG: Accounting officer system statement: sets out accountability flows from the departmental group to its arm’s length bodies and delivery partners. It also includes the accounting officer accountability system statements for local government and for the Local Growth Fund. (30 June 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

DCLG: Expert panel appointed to advise on immediate safety action following Grenfell fire: announces a new independent expert advisory panel to advise on any immediate measures that can be put in place to make buildings safe following the Grenfell Tower fire. The Panel will be made up of a range of building and fire safety experts, and will be chaired by Sir Ken Knight, former London Fire Commissioner and former Government Chief Fire and Rescue Adviser.
A separate independent Public Inquiry, chaired by Sir Martin Moore-Bick, will investigate what happened and who was responsible for the disaster. (27 June 2017)

DCLG: Safety checks following the Grenfell Tower fire: Melanie Dawe, Permanent Secretary for the DCLG, has written to local authority and housing association chief executives about safety checks following the Grenfell Tower fire. DCLG requires local authorities and other registered providers of social housing to identify the number of properties that are more than 18 metres high and which have been clad in new build or refurbishment with a particular type of cladding made of Aluminium Composite Material (ACM). They were to report back on this by the end of 19 June. From Tuesday 20 June onwards, where ACM panels have been identified, local authorities and registered providers of social housing should begin taking steps to establish that they are of limited combustibility, and to submit samples for testing. (19 June 2017)
See also the Explanatory note on safety checks and testing, which explains the checking and testing programme that has been set up and is now underway, and the wider steps that are being taken to ensure safety in all relevant buildings, in light of the early test results. (30 June 20170

DCLG: Grenfell Tower fire – Support for people affected: this web page contains advice on where to seek urgent assistance and information, including the official helplines for this incident. It also provides guidance on support services available for victims and all those affected by Grenfell Tower fire. (26 June 2017)
All resources and information relating to the disaster are on the DCLG website.

Welsh Government: Carl Sargeant outlines steps being taken following Grenfell Tower fire: the Welsh Cabinet Secretary for Communities and Children has announced that he is setting up an expert group to examine all of the lessons coming out of the Grenfell Tower tragedy, and their application to Wales. (20 June 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

LGA: Being mindful of mental health - The role of local government in mental health and wellbeing: explores how councils influence the mental wellbeing of communities and how council services, from social care to parks to open spaces to education to housing, help to make up the fabric of mental health support for the people in their communities. (29 June 2017)

House of Commons Library: Social care – Government reviews and policy proposals for paying for care since 1997: (England): this research briefing considers the policy proposals of successive Governments since 1997 for how individuals should pay for their social care. It sets out the key findings of the reviews as they relate to how individuals pay for their social care, Government policy responses, and the position of the current Conservative Government. (22 June 2017)

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

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Information Technology & Communications

LGA: Understanding secure email guidance: guidance to support councils to exchange information in a secure way across multiple organisations so that they can better join-up and co-ordinate their support and services for their citizens. The guidance should be read in conjunction with the data handling guidelines which have been produced to assist councils. (23 June 2017)

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

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Legislation

Queen's Speech: the Queen has outlined the Government’s legislative programme for the next two years, on the State Opening of Parliament. Bills of particular interest to local government include:

  • Brexit-related Bills
    • Repeal Bill: This measure will repeal the 1972 European Communities Act and convert EU law into UK law. The UK Parliament (and where appropriate, the devolved legislatures) will be free to make any future changes to its laws 
    • Customs Bill 
    • Trade Bill: puts in place a legal framework to allow Britain to strike free trade deals with countries around the world while ensuring domestic businesses are protected from unfair trading practices 
    • Immigration Bill: enables the Government to end the free movement of EU nationals into the UK, but still allows the country to attract "the brightest and the best". EU nationals and their families will be "subject to relevant UK law" 
    • International Sanctions Bill.
  • Other Bills
    • Data Protection Bill: gives people new rights to "require major social media platforms to delete information held about them at the age of 18"; allows police and judicial authorities to continue to exchange information quickly and easily with the UK's international partners in the fight against terrorism and other serious crimes; modernises and updates the regime for data processing by law enforcement agencies. The regime will cover both domestic processing and cross-border transfers of personal data; and updates the powers and sanctions available to the Information Commissioner. 
    • Financial Guidance and Claims Bill: establishes a new statutory body, accountable to Parliament, with responsibility for coordinating the provision of debt advice, money guidance and pension guidance.
    • Courts Bill: reforms the courts system in England and Wales to ensure it is more efficient and accessible, and in doing so utilise more modern technology.
    • High Speed 2 Phase 2A Bill: will provide the powers to build and operate the next stage of the HS2 network between Birmingham and Crewe.
    • Draft Domestic Violence and Abuse Bill: draft proposals to update the law to help tackle the evil of domestic abuse and violence.

The legislative programme will also include three Finance Bills to implement Budget decisions, a technical bill to ratify several "minor EU agreements" and further bills to affect the UK's exit from the bloc.
Her Majesty also announced plans for further reform of mental health legislation, and a consultation on options to improve the social care system and to put it on a more secure financial footing, supporting people, families and communities to prepare for old age, and address issues related to the quality of care and variation in practice.
See also the Government's Background briefing notes and the LGA's On the day briefing. (21 June 2017)
The Government has confirmed that this parliamentary session will last for two years instead of the usual one, to give MPs enough time to fully consider the laws required to make Britain ready for Brexit.

Welsh Government: First Minister sets out legislative priorities: the First Minister of Wales, Carwyn Jones, has set out the Welsh Government’s legislative priorities for the year ahead. The proposals include further legislation to reform local government in Wales. The Bill will establish a new relationship between the Welsh Government and local government, create greater transparency in decision making and ensure greater collaboration through mandatory regional working arrangements. (27 June 2017)

Welsh Government: Interpreting Welsh law – An interpretation act for Wales: seeks views on whether the Welsh Government should develop a modern and bilingual interpretation act for Wales, which would set out general rules and definitions that would apply to Acts of the National Assembly and legislation made under those Acts. It focuses on two options: amending the 1978 Act itself to address the absence of interpretation provision in the Welsh language, or creating a new Interpretation Act for Wales. The first part of the paper contains a useful guide to statutory interpretation. The consultation closes on 11 September 2017. (19 June 2017)

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

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Maladministration

LGO: Ombudsman lambasts council for not honouring agreement: the LGO has criticised for a second time a council which showed ‘scant respect’ for providing an agreed remedy to a vulnerable young person, after the council failed to carry out the LGO's recommendations for remedying the complaint and failed even to apologise. (29 June 2017)

LGO: New name for the Local Government Ombudsman: announces that the LGO service has changed its  name to the "Local Government and Social Care Ombudsman", to increase awareness that it looks at complaints about all areas of adult social care, including privately arranged or funded care. (19 June 2017)

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

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Public Health

LGA: Meeting the public health needs of the armed forces: helps local authorities, local Defence Medical Services and those supporting the health needs of the armed forces community in England to support and strengthen local relationships to meet the public health needs of armed forces populations. (23 June 2017)

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

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Rating

DCLG: Business rate retention and non-domestic rates 2016 to 2017: guidance on the production of two annual accounts as required under Sch.7B to the Local Government Finance Act 1988 – the main rating account and the levy account. (29 June 2017)

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

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Social Investment

DCMS: Introduction to Public Service Mutuals: updated guide to the establishment of public service mutuals. The Government has also launched the Mutuals Interim Support Fund that will award grants of up to £25,000 for organisations to purchase professional advice and support to help them consider, develop or grow a public service mutual. The closing date for applications is 31 July 2017. (26 June 2017)

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

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Standards

Committee on Standards in Public Life: Metro Mayors – Committee invites mayors to ethical standards induction: the Committee has written to the six 'metro mayors' elected in 2017 inviting them to a roundtable on the Seven Principles of Public Life and ethical standards. The metro mayors have powers for strategic decision making across city regions with responsibility for more functions than under previous legislation. The Committee invites the mayors to discuss how the seven principles can become the cornerstone of their life as mayor. It plans to host all six metro mayors at a roundtable session in October. (16 June 2017)

Hussain v Sandwell MBC [2017] EWHC 1641 (Admin) (Admin Ct): the court has dismissed an application for judicial review of the Council's decision to continue with an investigation into alleged wrongdoing by elected Council members.
H was alleged to have been engaged in procuring the sale of council property to family friends at a substantial undervalue and to have used his power and influence as a senior politician within the Council to have parking tickets issued to his family expunged. The Audit Committee started an investigation into the conduct of several elected members, including H, using its powers under the LGA 1972. An external solicitor was brought in to assist with this investigation but, after the solicitor made some personal and derogatory observations about H and his family to the Chief Executive, leading counsel was also instructed to advise. Counsel advised that there was a serious case to be met by H and that the solicitor's report and the Counsel's Opinion should be placed into the public domain. Counsel also advised that the formal arrangements under the Localism Act 2011 (LA 2011) for investigations into alleged breaches of the member's Code of Conduct should be initiated. H challenged the Council's power to conduct both formal and informal investigations of alleged wrongdoing by members under the LGA 1972 and the LA 2011 and the publication of the solicitor's report, Opinion and Audit Committee Report.
The court held that there was a serious prima facie case against H and the allegations should be investigated properly in accordance with the Council's formal standards arrangements. The Council did have power under the LGA 1972 and the LA 2011 to conduct the initial pre-formal investigation. The court rejected H's claims that the investigation was tainted by bias and/or an improper political purpose and was unfair or irrational. The Council had acted throughout with objectivity, care and circumspection and had taken considerable steps to ensure that H had been given every opportunity to put forward his evidence and address evidence against him and that, as the investigation progressed, he would continue to have every opportunity to present his case fairly and fully. The allegations were serious and there was a pressing public interest in those allegations being thoroughly and fairly tested and adjudicated upon. The mere fact that the issues had acquired a "political" significance was not a reason for the Council to succumb to political pressure; it had to act independently and objectively throughout. The Council had ample statutory powers under the LGA 1972 and the LA 2011 to publish the solicitor's report, the Opinion and the Audit Committee's report, and there was an important public interest in openness and transparency, both of which went hand in glove with accountability. (29 June 2017)

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

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Tortious Liability

Singh v City of Cardiff Council [2017] EWHC 1499 (QB) (QBD): S claimed damages for serious personal injuries suffered when he fell into a brook after straying from a council-maintained footpath. S alleged that that Council was in breach of its duties under s.41 of the Highways Act 1980 and s.2 of the Occupier's Liability Act 1957, or was liable in negligence under common law.
The court held, dismissing the claim, that S's injuries were not caused by any failure to maintain the highway nor were they the result of any failure by Council to take reasonable care to ensure that S was reasonably safe in using the land adjacent to the footpath. There was no breach of the duty under s.2 of the Occupier's Liability Act 1957. The Council was not liable at common law for any negligence in relation to the injuries that S sustained. Even if the council had been liable, S would have borne considerable responsibility for the incident as he chose to leave the footpath and he had been drinking. In those circumstances, his contributory negligence would have been 70%. (23 June 2017)

BBC News: Northampton Council pays out £13m over boy's pool accident: reports that the Council has settled a claim by family of a boy who was left brain damaged after nearly drowning in a swimming pool. It was argued that the pool's lifeguards had breached their duty of care after the child, then aged six, was under the water for about two and a half minutes, causing "irreversible" brain damage. (16 June 2017)

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

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Traffic and Transport

Transport for London: Draft Mayor's Transport Strategy 2017: seeks views on the key parts of a draft strategy that sets out the Mayor of London's plans to transform London’s streets, improve public transport and create opportunities for new homes and jobs, to ensure London is a fairer, greener, healthier and more prosperous city. The closing date for comments is 2 October 2017. (22 June 2017)

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

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