Authority Update 22/9/17

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


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:

    Business Rates    Elections
    Charities and Social Enterprises    Finance
    Children's Services    Fire and Rescue Authorities
    Commons and Village Greens    Governance
    Communities    Health and Social Care
    Development Control    Housing
    Economic Development and Infrastructure    Parks and Open Spaces
    Education    Standards

Business Rates

DCLG: Business rates information letter 5/2017 – Small business rate relief: this letter gives information on: Granting of Small Business Rate Relief – backdated; Budget 2017 – relief schemes; and local authority websites. (20 September 2017)

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

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Charities and Social Enterprises

Law Commission: Technical issues in charity law: charities currently face unnecessary administrative and financial burdens owing to inefficient and unduly complex law. This report analyses various technical issues in charity law and makes a number of recommendations for reform. The Commission finds that problems in charity law prevent or delay legitimate charitable activities, discourage people from volunteering, and force charities to obtain professional advice that should not be necessary. The independent law reform body recommends changes to maximise the efficient use of charitable funds whilst ensuring proper safeguards for the public. (14 September 2017)

Draft Charitable Incorporated Organisations Conversion) Regulations 2017: these regulations, which are scheduled to come into force on 1 January 2018, allow a charitable company and a Community Interest Company (CIC), to convert to a Charitable Incorporated Organisation (CIO) structure.
See also the Draft Charitable Incorporated Organisations (Consequential Amendments) Order that amends Sch.6 to the Charities Act 2011 so as to give a CIC the right to appeal a decision by the Charity Commission to refuse an application for its conversion into a CIO and the CIO’s registration as a charity. (13 September 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

LG&SCO: Grandmother to receive backdated foster care allowance from London borough following Ombudsman investigation: reports that Greenwich LBC has agreed to pay a grandmother four years of backdated foster carer payments, after the Ombudsman found it had failed to make her aware that she might be entitled to financial assistance for looking after her grandson. The Ombudsman’s investigation found that the council should have carried out a financial assessment when it asked her to take on responsibility for the boy, but instead offered her no advice or assistance. It also missed numerous opportunities between 2011 and 2015 to carry out assessments. The Ombudsman has reminded councils that it issued a report into councils’ duties towards friends and family foster carers in 2013, and this case serves as a timely reminder of the effects on vulnerable families when councils get things wrong. (14 September 2017)

DfE: Improvement notices and directions: DfE has issued new directions to five councils regarding their inadequate performance in children's social care services: 

Each Direction requires the council to work with the DfE and the appointed Commissioner or intervention advisers, following an Ofsted report that judged the overall effectiveness of the council’s children’s social care services to be inadequate. (19 September 2017)

LGA: Councils call for urgent action to improve safety in youth offending institutions: the LGA is calling on the Government to publish a clear action plan to improve conditions in youth custody, following alarming evidence that institutions are dangerously unsafe for young people. (22 September 2017)

Children and Social Work Act 2017 (Commencement No. 1) Regulations 2017 (SI 2017/918 (C.76)): this Order brings a number of provisions in the 2017 Act into force on 31 October 2017. These are: s.8 (care orders: permanence provisions); s.9 (adoption: duty to have regard to relationship with adopters); s.33 (power to secure proper performance); and s.42 (improvement standards). (13 September 2017)

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

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Commons and Village Greens

Commons Act 2006 (Commencement No. 5 and Transitional Provisions (Wales) and Commencement No. 4 (Wales) (Amendment)) Order 2017 (SI 2017/933 (W.227) (C.80)): this Order brings the remainder of ss.20 and 21 of the 2006 Act fully into force in relation to Wales on 20 September 2017, regarding the inspection of the registers of common land and town and village greens held by commons registration authorities in Wales. It also extends the application of ss.19 and 22 of, and Sch.2 to, the 2006 Act (correction of registers and non-registration or mistaken registration under the Commons Registration Act 1965) so that they apply to any area in Wales where registration is still effected under the 1965 Act. (18 September 2017)

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

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DCLG: £22.8 million boost to give power back to communities: announces that the Government is awarding communities around £5.5m p.a. until 2022, to provide them with specialist support to help develop a Neighbourhood Plan. (20 September 2017)

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

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Development Control

South Gloucestershire Council v Burge [2017] EWCA Civ 1313 (CA): the Council appealed against the Upper Tribunal's award of compensation to B for loss incurred as a consequence of consent being refused for the felling of a tree protected by a Tree Preservation Order. B had claimed compensation under s.203 TCPA 1990 and the TPO after their conservatory started to crack. They were advised that the damage was being caused by an oak tree on adjacent land. The Council later made a TPO protecting the oak tree. B applied for consent to fell the tree but the Council refused; they then applied for compensation for loss and damage incurred as a consequence of the refusal of consent. The UT ruled that although the conservatory's foundations were too shallow, that did not affect B's case as the onus was on the Council to show that B knew, or ought to have known, that there was a real risk of the oak tree causing subsidence damage to the new conservatory; it had failed to show this. The Council argued that the UT had failed to identify and answer the questions which ought to have been dealt with under the TPO, as it had fixed only on the question of whether B actually did know of the risk, rather than on the question of whether they ought to have known of it, and did what they reasonably could to avoid or mitigate the loss.
The court held, allowing the appeal, that the scope of the enquiry as to reasonable foreseeability and the taking of reasonable steps to avert or mitigate the relevant loss or damage was not fixed in time for every case. The Tribunal was not required to confine its attention to a specific date but was free to consider these questions within the relevant span of time, bearing in mind always that it was considering the "loss or damage" flowing from the refusal of consent or the granting of consent subject to conditions. To read into the TPO some particular date on which the enquiry must focus would be contrary to its natural and proper construction. The Tribunal should not have confined itself to that single point in time – when the conservatory was built – even though the parties seemed to have agreed that that was the critical date. It ought to have considered the questions of reasonable foreseeability and reasonable steps having regard to the whole period between the construction of the conservatory and the relevant "loss or damage" being "caused or incurred". The Tribunal had erred in taking the view that the mere fact that B had entrusted the building of the conservatory to contractors was enough in itself to overcome the Council's case that their relevant loss or damage was "reasonably foreseeable by them", and enough to discharge, once and for all, B's duty to mitigate. This was a material error in the Tribunal's treatment of the decisive issue that rendered its decision invalid. The Tribunal had also failed to give effect to the object and purpose of the statutory scheme and the provisions in the TPO. The claim should be determined afresh. (8 September 2017)

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

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Economic Development and Infrastructure

Welsh Government: Prosperity for all – The national strategy: sets out how the Welsh Government will deliver its key priorities for the rest of this Assembly term. The strategy is designed to drive integration and collaboration across the Welsh public sector, and put people at the heart of improved service delivery. It details actions covering each of the key themes in the Programme for Government – Prosperous and Secure, Healthy and Active, Ambitious and Learning, and United and Connected. It also identifies five priority areas – early years, housing, social care, mental health and skills – which have the potential to make the greatest contribution to long-term prosperity and well-being. (19 September 2017)

EEF: Fostering more industrious places - getting the Devolution Revolution back on track: the Government's 2017 industrial strategy green paper Building our Industrial Strategy includes the ambition of ensuring "that every place meets its potential". This report notes that this strategy is a major step in the right direction, but there are some gaps, particularly regarding ambition around Devolution Deals which has been limited to the "largest cities". The report sets out how central government can streamline the process as part of industrial strategy to get more Deals over the line, including publishing a common core framework of what is on offer for initial Devolution Deals and what governance arrangements will need to be adopted to unlock powers. (21 August 2017)

UK100: Financing the transition – Harnessing UK cities' ambition for clean energy: UK100 is a network of local government leaders that seeks to devise and implement plans for the transition to clean energy. This report notes that this ambition is stymied by lack of access to development finance for local projects, and the disparity between private finance and local authorities in their attitudes towards risk continues to be a barrier. It confirms the strong desire by ambitious local authorities to play a key role in the delivery of a low carbon industrial strategy. It calls for the creation of Clean Energy Action Partnerships that would offer access to technical and development expertise for clean energy projects from a crack central team with regional reach. As part of the compact, local authorities will offer integrated scalable, replicable, deliverable clean energy projects to develop. The technical assistance facility will empower local authorities to develop commercial standard business cases, and transform the pace and scale of infrastructure investment in the UK’s cities and regions. (12 September 2017)

Leeds Climate Commission: Leeds Climate Commission launched: this new city partnership has been set up to encourage investment in low-carbon, climate-resilient developments that could generate significant economic, social and environmental benefits for Leeds. Led initially by the University of Leeds and Leeds City Council, it brings people and organisations together to shape the transition to a low carbon, climate resilient city. Its website sets out the economic case for low carbon development not only for Leeds, but for each of the UK’s 50 biggest cities and for all local authorities across the UK. (7 September 2017) 

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

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DfE: The national funding formula for schools and high needs: the Government has announced new national funding formulae for schools, high needs and the central school services block from April 2018. This policy document sets out the background and principles of the new national funding formulae. (14 September 2017)

DfE: Partnership is key to creating more good school places: reports that the DfE is working in collaboration with the Independent Schools Council to support more joint working between the independent and state school sectors. Support will include drawing on the experience and the expertise of independent schools in leadership, teacher training, curriculum support, school improvement and sponsorship, or setting up a free school. (13 September 2017)

PHE: PHE launches Rise Above for Schools programme: PHE has developed a series of new resources for secondary school teachers to use in their lesson plans as part of the Rise Above for Schools programme. The resources will help teachers to engage pupils with coping strategies about ‘traditional’ health issues, like smoking and alcohol, while also addressing some of the most challenging pressures young people face today in an ‘always on’ social media generation. (13 September 2017)

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

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Plymouth City Council: Review of registration and elections: after a number of issues were identified with regard to the June 2017 General Election held in June, the Council commissioned an investigation to identify how these issues arose and to recommend what it should do to address them. This report sets out the Independent Investigator's assessment, findings and recommendations. He concludes that the Acting Returning Officer acted appropriately and effectively throughout the General Election. The key issues were: the Council’s longstanding challenge with recruiting the right staff to its core electoral and registration team; not being quick enough to improve its business processes; and needing to build better links between strategic and operational planning. However the Council’s decision to maximise the number of people who could vote by any means possible was the right one. The investigator makes a number of recommendations and this report includes the Acting Returning Officer's initial response to the recommendations. It also notes that the Council has established an Electoral Services Improvement Programme to drive and sustain a robust and resilient elections service. (September 2017)

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

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DCLG: Local government finance settlement 2018 to 2019 – Technical consultation: the 2016-17 Local Government Finance Settlement offered local authorities a four year deal, giving greater certainty over their funding. This paper sets out the Government’s intended approach for the third year of the multi-year local government finance settlement, with the proposed 2018-19 settlement funding allocated in accordance with the agreed methodology. It outlines: 

  • the method for distributing New Homes Bonus funding following implementation of reforms announced at the time of the 2017-18 provisional settlement and a proposal for further incentives to support the delivery of housing growth;
  • proposals for the council tax referendum principles for 2018-19;
  • the approach to Mayoral Combined Authorities precepts in 2018-19; and
  • the approach for allocating settlement funding where a fire authority transfers from a county council in accordance with the provisions of the Fire and Rescue Services Act 2004, as amended by the Policing and Crime Act 2017 and the implications for the Adult Social Care council tax precept.

It also confirms the approach being taken for adjusting business rates tariff and top-ups to cancel out, as far as is practicable, the impact of the 2017 business rates revaluation on local authorities’ income. The consultation closes on 26 October 2017. (14 September 2017)

LGA: Autumn Budget submission 2017: the Chancellor has announced that the Budget this year is on 22 November. This briefing paper details the unfunded cost pressures facing local government. It argues that, with many local services facing significant funding gaps, it is vital that the Budget recognises that councils cannot continue without sufficient and sustainable resources. (22 September 2017)

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

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Fire and Rescue Authorities

Fire and Rescue Authority (Police and Crime Commissioner) (Application of Local Policing Provisions, Inspection, Powers to Trade and Consequential Amendments) Order 2017 (SI 2017/863): the Policing and Crime Act 2017 inserted new ss.4A-4M into the Fire and Rescue Services Act 2004 to enable the creation of a new type of fire and rescue authority that is a corporation sole. The person who is for the time being the PCC for the corresponding PCC area takes on responsibility for governance of those fire and rescue services. This Order, which comes into force on 1 October 2017, makes provision as appropriate that corresponds to and is similar to the PCC model and applies legislation relating to a PCC with modifications to a s.4A FRA. . It also provides for the appointment of a Chief Fire Officer and sets out the CFO's functions. It provides for such an FRA to have power to trade, and contains further provisions regarding inspection of s.4A FRAs along with consequential provisions on the implementation of the new FRA model.
The first FRA created under the new s.4A is the Essex Police, Fire and Crime Commissioner FRA: see the Police, Fire and Crime Commissioner for Essex (Fire and Rescue Authority) Order 2017 (SI 2017/864). (8 September 2017)

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

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DCLG: Return of further powers to Rotherham: announces that DCLG has issued revised Directions to Rotherham, returning five functions to the Council to exercise. These are: 

  • performance management in each of the council’s service areas 
  • waste collection 
  • community safety, which includes community cohesion and domestic violence 
  • human resources 
  • asset management, including both land and property assets.

The Commissioners will retain executive decision making power over children’s social care services, special allowances, and also the appointment and dismissal of any statutory officers. They will also continue to have oversight over all returned functions. (12 September 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

R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin) (Admin Ct): CXF had complex needs arising from his autistic spectrum disorder and was detained under s.3 of the Mental Health Act 1983 (MHA) at a hospital. His mother visited him every week, which was a round trip of 240 miles. During these visits, she accompanied CXF on bus trips, for which he was granted leave of absence under s.17 MHA, escorted by two members of hospital staff. Until CXF was 18, the Council met his mother's expenses in visiting him under s.17 of the Children Act 1989. The issue in this case was whether the Council or the CCG had a duty under s.117 MHA to cover the costs of CXF's mother's visits now that he had reached 18, on the ground that they constituted "after-care services".
The court held that the duty to provide after-care services under s.117 MHA was not triggered whenever a patient detained under s.3 was granted leave of absence under s. 17. A patient could remain "detained" in a particular hospital even though he was permitted to leave for a short time, especially if he remained under the continuous supervision and control of hospital staff when outside the premises. Here, CXF remained at all times detained in the hospital, and he had not "left hospital", even when he was enjoying leave of absence under s.17. The leave of absence granted to him permitted short excursions by bus, and required him to be escorted and supervised at all times by two members of the hospital's staff. He was at all times deprived of his liberty, and under the care and control of the hospital. He was thus detained by the hospital even when permitted leave of absence. He was also at all times resident in and admitted to the hospital, and could not be said to have "left hospital". He had not been discharged. (15 September 2017)

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

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DCLG: Planning for the right homes in the right places: seeks views on proposals to reform the planning system to increase the supply of new homes and increase local authority capacity to manage growth. The proposals include a standard method for calculating local authorities’ housing need and a new "statement of common ground" to improve local authorities' cooperation on planning issues to meet housing and other needs across boundaries.
The Housing Need consultation data table sets out the housing need for each local planning authority using the proposed method, how many homes every place in the country is currently planning for, and, where available, how many homes they believe they need.
The consultation closes on 9 November 2017. (14 September 2017)

DCLG: Housing Infrastructure Fund – Ranking process guidance: the £2.3bn Housing Infrastructure Fund offers funding to local authorities on a competitive basis, for infrastructure to support up to 100,000 new homes. Local authorities are asked to rank the bids they submit in order of priority. This guidance sets out how local authorities should rank their bids. (13 September 2017)

NAO: Homelessness: this report examines whether DCLG is achieving value for money in its administration of homelessness policy. It finds that found that DCLG does not have a published cross government strategy to prevent and tackle homelessness, although it has acknowledged the scale of the challenge and plans to improve the data the Government holds on homelessness. The report notes that DCLG has supported the Homelessness Reduction Act 2017 that increases local authorities' responsibility for preventing homelessness; however, local authorities' ability to respond to increased homelessness is constrained by the limited options they have to house homeless families. There has been a significant reduction in social housing over the past few decades. While spending by local authorities on homelessness services such as temporary accommodation has steadily increased since 2010, spending on overall housing services has fallen by 21% in real terms over the same period. The report queries why DCLG has persisted with its light touch approach to working with local authorities in the face of such a visibly growing problem. The NAO makes a number of recommendations, including that DCLG should work with local authorities to establish how they are making use of measures to tackle homelessness, in order to gain a full understanding of effectiveness and share best practice, and to ensure that they are making the most effective use of temporary accommodation. This work should include enabling local authorities to increase their use of the innovative short-term solutions that they are taking. (13 September 2017)

Draft Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017: these draft regulations, once in force, reduce the influence that local authorities have over private registered providers of social housing. They restrict the percentage level of officers that a local authority may nominate as board members of a private registered provider and remove a local authority’s ability to hold voting rights as a member of a private registered provider. (14 September 2017)
See also our alert: Significant changes proposed to housing association constitutions.

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

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Parks and Open Spaces

DCLG: The future of public parks – Government response to the Select Committee report: sets out the response by Marcus Jones, Minister for Parks and Green Spaces, to the 17 recommendations made by the Commons CLG Select Committee in their February 2017 report.
The Government has also announced that it is launching a new Parks Action Group that will take forward proposals to address some of the issues faced by public parks and other green spaces across England. The new group will include experts from the world of horticulture, leisure, heritage and tourism, chaired by the Parks and Green Spaces Minister, Marcus Jones. The Government is providing £500,000 funding to kick start their work. (19 September 2017)

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

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DCLG: Disqualification criteria for councillors and mayors: seeks views on proposals to update the criteria that bar individuals from becoming or being a local councillor or directly-elected mayor. The Government is proposing to amend the disqualification criteria so that anyone convicted of a serious crime, regardless of whether it comes with a custodial sentence, will not be able to serve as a councillor. Individuals will be banned from standing for office if they are put on the Sex Offenders Register; or made the subject of a civil injunction or a Criminal Behaviour Order under the Anti-social Behaviour, Crime and Policing Act 2014. The new rules will apply to councillors and mayors in parish, district, county and unitary councils, London boroughs, combined authorities and the Greater London Assembly. The proposed changes will not be retrospective. The consultation closes on 8 December 2017. (18 September 2017)
See also our alert: Strengthening standards for councillors and mayors – a missed opportunity?

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

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