Authority Update 25/8/17

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

29/08/2017

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: 

    Access to Information    Health and Social Care
    Adult Social Services    Inquiries
    Children's Services    Parish Councils
    Community Rights     Planning System
    Education    Public Health
    Elections     Regulatory Services
    Environmental Services    Standards
    European Union    Traffic and Transport
    Finance    Waste and Recycling
   Governance  

Access to Information

ICO: North London council fined after parking ticket system flaw leaves personal information at risk: the Information Commissioner has issued Islington LBC with a £70,000 monetary penalty under s.55A of the Data Protection Act 1998 after the council's parking ticket system was found to have design faults which meant that up to 89,000 people’s information on its website was not secure. (17 August 2017)

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

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Adult Social Services

NICE: People's experience in adult social care services – Improving the experience of care for people using adult social care services: seeks views on a draft guideline on how to help adults who need social care to feel in control and be able to live life as they want. The advice covers any area where adults receive social care, including people’s own homes, residential care and community settings. It says that staff should avoid making assumptions about a person’s capacity to be in control of their own care, e.g. if they are severely disabled, and  suggests using communication aids to help people express their views. It says commissioners should provide an independent advocate for people who may struggle to communicate their needs, while local authorities should try to involve people in decision-making outside of their direct care. It also includes recommendations on assessing people’s needs in line with statutory requirements and planning care. (22 August 2017)

CH v A Metropolitan Council [2017] EWCOP 12 (CtProt): CH was a 38 year old male who was born suffering from Downs Syndrome and had an associated learning difficulty. After he and his wife W sought fertility treatment, he was assessed by a psychologist who concluded that he lacked capacity to consent to sexual relationships. W was advised that she must abstain from sexual intercourse with CH as that would, given CH's lack of capacity to consent, comprise a serious criminal offence. She therefore moved into a separate bedroom and reduced any physical expression of affection, which was very upsetting to CH. The psychologist advised that CH needed a course of sex education to assist him to achieve the necessary capacity but the Council failed to implement that advice. The Court of Protection ordered the council to implement the advice and CH finally began the course in June 2016; in May 2017 the Court issued a declaration that he had capacity to consent to sexual relations. CH claimed damages from the Council, alleging that the enforced abstention from conjugal relations breached his rights under Art.8 ECHR. The Council did not contest the claim and offered to issue a formal apology to CH for the delay in providing him with the sex education to which he was entitled and to pay him £10,000 plus costs, in settlement of CH's claim.
The court concluded that the proposed settlement was indeed in the best interests of CH and reflected a fair outcome to the proceedings. It authorised CH's litigation friend to accept the Council's offer. (28 July 2017)

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

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Children's Services

ADCS: Agreement about social work in care proceedings: announces that ADCS and Cafcass have withdrawn their agreement about how local authorities and Cafcass can work effectively in a set of care proceedings and pre-proceedings. This follows concerns that the agreement undermined the independence of children’s guardians and shut out parents or their representatives from due process within proceedings. (17 August 2017)

LGA: Partnership approaches to improving health outcomes for young people: these case studies showcase different approaches to supporting the health of young people. Whilst the approach and focus of the work in local areas varies, each case study provides an opportunity to reflect on what made the initiative a success and how councils might use this learning in their own areas. (14 August 2017)

J (A Child : Care Proceedings : Apportionment of Experts' Fees) [2017] EWFC B49 (Fam Ct): this case concerned care proceedings in respect of a baby who had allegedly suffered non-accidental injuries. The court was asked to determine how the medical experts' fees should be apportioned between the parties where the parents were litigants in person who could not afford to make any contribution.
The court held that the instruction of the two experts was necessary. To ignore the parents' financial circumstances and order them to pay their proportionate share would be absurd given that it was clear that they simply could not afford to pay. Similarly, to refuse permission for medical experts to be instructed would be perverse and a breach of Art.6 rights of both the parents and the child. Fairness and common sense dictated that an order requiring an equal sharing of the experts' fees was wholly inappropriate so the court concluded that the fees of the two experts should be paid equally by the local authority and the guardian. The guardian's solicitor had to now make an application for prior authority without delay, and the Legal Aid Agency should respond without delay. (8 August 2017)

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

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Community Rights

DCLG: You’ve got the power – A quick and simple guide to community rights: updated guide that provides a simple step-by-step overview of the rights which have been introduced to give people more power over what happens in their neighbourhood. It also points people in the right direction for advice, support and funding. (17 August 2017)

DCLG: High hedges: complaining to the council: updated guide explaining the powers that local authorities have under Part 8 of the Anti-social Behaviour Act 2003 to deal with disputes between neighbours about high hedges, and how home owners and occupiers can complain to the local authority about such hedges. There is also guidance on how to settle hedge differences without involving the local authority. This process must be attempted before a complaint can be made to the local authority: Over the garden hedge. (18 August 2017)

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

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Education

DfE: Alternative provision census 2018 – Guide: helps local authorities and providers of alternative provision complete and submit alternative provision census 2018 data. For the 2018 alternative provision census, the census period is from 20 January 2017 to 18 January 2018 inclusive. (15 August 2017)

R (Durand Academy Trust) v Office for Standards In Education, Children's Services and Skills [2017] EWHC 2097 (Admin) (Admin Ct): the School applied for judicial review of Ofsted's 2017 inspection report in which the School was adjudged to be "Inadequate". In 2008 and 2011 it had been categorised as "Outstanding", and in 2013 as "Good". It established a boarding facility in 2014 and had its first social care inspection in 2015 when it was judged as "Requires improvement". The School stated that Ofsted's assessment of it as inadequate was so strikingly at odds with the reality of how the School performed and so vitiated by unfair and arbitrary evaluations, factual errors and "a relentless accentuation of the negative and elimination of the positive" as to be Wednesbury unreasonable. It contended that Ofsted's Complaints Procedures were not fair or robust as they did not give the complaining party the possibility of having the decision changed and where the complaint was about an inspection at which a school was adjudged to have serious weaknesses or to require special measures, Ofsted's Complaints Procedures specifically precluded a substantive challenge to a report. Ofsted argued that it was not in the public interest for schools which, following a rigorous and independent inspection, had been found to have serious weaknesses, to be able to delay the publication of the outcome, and instead of a robust complaints process, it relied on its quality assurances processes.
The court held, granting the application, that a complaints process which effectively said there was no need to permit an aggrieved party to pursue a substantive challenge because the decision maker's processes were so effective that the decision would always in effect be unimpeachable was not a rational or fair process. The absence of any ability effectively to challenge the report rendered the Complaints Procedures unfair and vitiated the report. The report should be quashed.
The court was concerned that a fair analysis of the evidence did not really lead to a conclusion that the School was Inadequate and in need of being placed into special measures rather than the lesser category of Requires Improvement. The School's characterisation of itself as a school which, in the space of three short years and with no changes of management or leadership, had gone from holding a rating of Outstanding to one which was judged to be Inadequate on the basis of the report, was somewhat simplistic. However, in the light of its conclusions on the first ground, there was no need for the judge to express a concluded view on the rationality of the report. (11 August 2017)

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

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Elections

Cabinet Office: Key reforms mean big difference to sight impaired: announces changes to the Certificate of Vision Impairment so that local authorities will be able to contact blind or visually impaired people direct in order to ask whether they need any extra help or support when it comes to registering to vote, or participating in elections. (18 August 2017)

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

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Environmental Services

Mayor of London: Draft London Environment Strategy: this draft strategy sets out proposed actions to tackle a host of environmental challenges, such as toxic air, noise pollution, threats to green spaces, and the adverse effects of climate change. The closing date for comments is 17 November 2017. (11 August 2017)

DCLG: New fund launched to reduce litter through innovative projects: the Government has launched the new Litter Innovation Fund, with £500,000 funding to support the development of new innovation and approaches for tackling litter. The fund is managed by WRAP, which is inviting local authorities, community groups, charities, educational institutions, and small and medium enterprises to apply for funding towards innovative and creative solutions to their littering problems. The closing date for Expressions of Interest is 26 September 2017. (26 August 2017) 

DCLG: Government to extend Green Flag Award for 5 more years: announces that the Government is to renew the Green Flag Award licence that recognises the best of outdoors spaces in the UK, allowing visitors to easily find quality parks and other green spaces to enjoy and setting standards for park managers across the country. The awards are run on behalf of the Government by Keep Britain Tidy, an environmental charity that campaigns for people’s right to live and work in a place of which they can be proud. (23 August 2017)

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

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European Union

DExEU: Position and partnership papers: the Government has published a number of papers in advance of formal negotiating rounds with the EU, that outline the UK's negotiating position in a number of areas. They also set out key issues that form part of the Government’s vision for the future deep and special partnership between the UK and the EU. These include: 

  • Enforcement and dispute resolution – A future partnership paper 
  • Providing a cross-border civil judicial cooperation framework – A future partnership paper 
  • Confidentiality and access to documents – A position paper 
  • The exchange and protection of personal data - a future partnership paper 
  • Future customs arrangements - a future partnership paper 
  • Northern Ireland and Ireland - position paper.

(22 August 2017)

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

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Finance

DCLG: Local authority revenue expenditure and financing: 2016-17 Provisional outturn, England: these figures show that local authority revenue expenditure totalled £93.5bn for all local authorities in England in 2016-17, 1.1% lower than  2015-16. Expenditure on Adult Social Care increased to £14.9bn in 2016-17, with 2016-17 being the first year local authorities were able to raise additional funding for Adult Social Care through the council tax precept. The largest decrease in local authority expenditure was on Education services. The majority of the 2.4% decrease is due to local authority funded schools converting to academies. They also show that local authorities are financing more of their expenditure from locally retained income. Local authorities’ use of reserves was £1.1bn higher in 2016-17 than in 2015-16; £0.5bn of this increase is due to the Greater London Authority. (24 August 2017)

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

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Governance

IPPR: Power to the people? Tackling the gender imbalance in combined authorities and local government: this report considers how, despite making up half of the population and voting in the same numbers as men, on average only 34 per cent of women are a member of a political party, typically the first step into participating into local politics. It argues that such low level of representation of women at the top of institutions which claim to be bringing power closer to the people is unacceptable in 2017. It calls on political parties and institutions to seize the recent increase in voter turnout among young women to dramatically increase the numbers of women going into local politics. This must be complemented by a series of radical reforms to improve the pipeline of women rising to the top in local politics, and to correct the absence of women at the top of combined authorities. (21 August 2017)

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

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Health and Social Care

LGSCO: Married couple separated for 10 months due to lack of available homecare: reports that the Ombudsman has asked Lincolnshire CC to review other families’ cases after a man was separated from his wife for 10 months because there was no homecare available in his area. The Ombudsman found the council at fault for allowing the woman to be placed in a dementia unit, and for not revising her care and support plan when her circumstances changed. Through its investigation into this complaint, the Ombudsman found that other people may have been similarly affected by the council’s contracting arrangements. The council has agreed to the Ombudsman’s recommendation to pay the husband £750 and the wife £1,000 to reflect their distress. It will also refund the man’s travel expenses for the 10 month period, and has agreed to the Ombudsman’s recommendation to identify whether others were affected and provide the same remedy to those families if any injustice has occurred. (22 August 2017)

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

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Inquiries

Grenfell Tower Inquiry: Prime Minister announces Inquiry Terms of Reference: the Prime Minister has confirmed that the Inquiry’s Terms of Reference are:

1. To examine the circumstances surrounding the fire at Grenfell Tower on 14 June 2017, including:

a) the immediate cause or causes of the fire and the means by which it spread to the whole of the building;
b) the design and construction of the building and the decisions relating to its modification, refurbishment and management;
c) the scope and adequacy of building regulations, fire regulations and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high-rise residential buildings;
d) whether such regulations, legislation, guidance and industry practice were complied with in the case of Grenfell Tower and the fire safety  measures adopted in relation to it;
e) the arrangements made by the local authority or other responsible bodies for receiving and acting upon information either obtained from local residents or available from other sources (including information derived from fires in other buildings) relating to the risk of fire at Grenfell Tower, and the action taken in response to such information;
f) the fire prevention and fire safety measures in place at Grenfell Tower on 14 June 2017;
g) the response of the London Fire Brigade to the fire; and
h) the response of central and local government in the days immediately following the fire;

and

2. to report its findings to the Prime Minister as soon as possible and to make recommendations.
It has also published Information on how to participate in the Inquiry. (15 August 2017)
The Communities Secretary has written a further letter to Grenfell Tower residents with an update on the action being taken by the government in response to the tragedy, along with details of available support and assistance. (22 August 2017) 

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

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Parish Councils

NALC: 150 points of light: NALC has published a compendium of practice containing an extensive range of case studies, magazine and journal articles on town and parish councils' achievements. (11 August 2017)

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

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Planning System

LGA: A councillor's workbook on Planning: this workbook will help councillors to understand how the planning system in England works. It has been designed as a development aid for elected members regardless of their experience or responsibilities, and to support members in their role as council and community representatives. (14 August 2017)

Verdin (t/a the Darnhall Estate) v Secretary of State for Communities and Local Government [2017] EWHC 2079 (Admin) (Admin Ct): V applied for judicial review of the Secretary of State's decision to dismiss his appeal against the Council's refusal of planning permission for the residential development of a site. His revised planning proposals included planning conditions that not less than 50% of the workforce should come from the local area and that 20% of the gross construction costs should be secured by local procurement. The inspector recommended approval but the Secretary of State rejected the recommendation and refused planning permission. V contended that the Secretary of State had wrongly rejected the employment and local procurement conditions; alternatively he had failed to give adequate reasons for his decision.
The court held, granting the application, that the employment condition did potentially go to the weight to be attached to the economic and social dimensions of sustainability and accordingly would have been material in forming part of the overall planning balance. The Secretary of State was under a duty to provide more by way of reasons as to why he had concluded that there was insufficient precision or difficulty in its enforcement and detection. The condition required the submission of a training and employment management plan and its approval by the Council; the plan was to aim to promote training and employment opportunities during the construction phase for local people by undertaking to meet the stated target minimum percentages. There was no rational ground on which that structure could be said to be inconsistent or imprecise. The local condition was plainly relevant to the policies in the Framework in respect of sustainable economic development and specifically to the Local Plan. Given that it supported local and national policy and in the absence of any evidence why it would be unjustified or disproportionate, the Secretary of State's conclusion that it would be unreasonable in all other respects was irrational and in any event unexplained. There was no rational basis to say that it would not be practicably possible to enforce this condition or in practice impossible to detect a contravention of the condition. Similarly, regarding the local procurement condition, the Secretary of State's conclusion that it was unclear whether or not there was the availability of businesses did not rationally support a conclusion that that condition would be unreasonable. There was no rational or cogent basis on which he could reject the condition on the basis that any Strategy that accorded with the condition would have been unreasonable. His decision would be quashed. (10 August 2017)

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

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Public Health

NICE: Physical activity and the environment (update): seeks views on draft guidance that aims to help people to be more active through improvements to the built environment and better access to the countryside. The recommendations for local authorities include: encouraging people to visit their parks and local open spaces; helping people with reduced mobility by keeping obstructions like parked cars, hanging baskets or bins out of the way on pavements; and making pedestrian crossings accessible for all. The closing date for comments is 21 October 2017. (21 August 2017)

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

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Regulatory Services

Islington LBC: Letting agent faced with £20,000 bill after issuing “sham licences” to renters: reports that the council has successfully prosecuted a letting agent for issuing “sham licences” that suggested occupiers had no right to challenge eviction and gave no statutory protection for deposits. Highbury Magistrates' Court fined the agent a total of £16,000 plus £1,500 costs and £3,000 compensation to the victims, after it pleaded guilty to three offences under the Consumer Protection from Unfair Trading Regulations 2008 relating to the issuing of licences to occupy where the fact gave rise to a tenancy and to using a letting agency association logo where it was not a member. (21 August 2017)

Co-ordination of Regulatory Enforcement Regulations 2017 (SI 2017/835): Primary Authority was established under Part 2 of the Regulatory Enforcement and Sanctions Act 2008. The scheme is designed to provide more co-ordinated, consistent and proportionate regulatory enforcement. These regulations, which come into force on 1 October 2017, set out which national regulators can support primary authorities when they are developing advice or guidance or inspection plans for businesses. It also defines the scope of Primary Authority in Scotland and Northern Ireland, sets out which types of enforcement action falls within the scope of the scheme, and sets out the process for dealing with disputes relating to proposed enforcement action by enforcing authorities. (15 August 2017)

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

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Standards

Public Services Ombudsman for Wales: Annual report and accounts 2016/17: these figures show that in total the PSOW received 2,056 new complaints about public services in Wales and a further 236 code of conduct complaints against local government councillors in 2016/17. The total number of enquiries and complaints has increased by 75% over the past six years; however, the number of Code of Conduct complaints in the past year fell by 14% compared with the previous year. (16 August 2017)

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

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Traffic and Transport

LGA: A country in a jam – Tackling congestion in our towns and cities: this report identifies congestion as a serious problem for economic development, quality of life and public health. It features steps that the Government could take to work with councils to ensure that the traffic growth is both better managed, congestion is reduced and our air quality problems are tackled. It also identifies the steps that innovative councils have taken to reduce congestion and its impacts. (19 August 2017)

Community Transport Association: The issue and use of Section 19 and Section 22 permits for road passenger transport in Great Britain: letter to Jesse Norman, Under Secretary of State for Transport, on the impact on  vulnerable citizens who rely on community transport to have a better quality of life, following the DfT's statement that it intends to consult and review s.19 and s.22 Transport Act 1985 on public service vehicle (PSV) licences. (1 August 2017)

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

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Waste and Recycling

LGSCO: Lifting the lid on bin complaints – Learning to improve waste and recycling services: this focus report looks at some of the commons issues arising in complaints about bin collections. The report shows that the Ombudsman upheld 81% of its complaint investigations into council waste and recycling services last year, up from 59% the year before. The report suggests ways in which councils could improve their waste services and complaint handling, based on learning from the Ombudsman’s casework. It will help local councillors support people who raise queries about bin collections and there is a set of questions to help councillors scrutinise their local authority’s services. (23 August 2017)

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

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