Authority Update 13/10/17

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

17/10/2017

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 three 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    European Union
    Burial and Cremation    Finance
    Children's Services    Governance
    Combined Authorities and Devolution    Health and Social Care
    Delivery of Services    Housing
    Education    Regulatory Services
    Equality and Discrimination    Traffic and Transport

Adult Social Services

DCLG: Adult social care – Government response to the Select Committee report: responds to the CLG Committee’s two reports earlier in 2017 concerning adult social care. It states that the Government remains committed to the vision of improved person-centred care and the closer working between health and social care which this requires. It intends to consult 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. It will provide further details on the next steps on social care in due course (11 October 2017)

DH: Ordinary residence – Anonymised determinations 2017: these anonymised documents show how the DH arrives at decisions to resolve disputes in the health and social care sector. (13 October 2017)

CQC: Responding to risks or priorities in an area – Cornwall and London Borough of Sutton: Overview: CQC has published a report on how health and social care services in Cornwall and Sutton work together to respond to risk and provide joined-up care to the people in these two areas. (5 October 2017)

British Red Cross: Prevention in action – How prevention and integration are being understood and prioritised locally in England: this report finds that local authorities are struggling to meet their obligations to prevent, reduce, or delay the need for care as set out in the Care Act 2014. The report also identifies shortcomings in plans for integrating health and social care. (22 September 2017)

DH: Government extends suspension of minimum wage enforcement in the social care sector: announces a further one-month suspension of minimum wage enforcement concerning sleep-in shifts in the social care sector to minimise disruption to the sector and seek to ensure workers receive the wages they are owed. This follows July’s decision to waive all historic penalties in the sector where employers incorrectly paid workers a flat-rate for sleep-in shifts instead of hourly rates. During this temporary pause, the Government will develop a new enforcement scheme for the sector to encourage and support social care providers to identify back pay owed to their staff. (28 September 2017)

NHS Digital: Personal social services adult social care survey, England – 2016-17: sets out findings from the Adult Social Care Survey 2016-17 that is conducted by councils with adult social services responsibilities. It shows that overall, 64.7% of service users were extremely or very satisfied with the care and support services they received. Also, 70.1% of people receiving social services care feel "as safe as they want", while 86.4% of service users reported that the care and support services they receive has helped them in feeling safe, up 1.0 percentage point from 2015-16.  (5 October 2017)

R (Davey) v Oxfordshire CC [2017] EWCA Civ 1308 (CA): D, a severely disabled man, appealed against the refusal of his application for judicial review of the Council's decision pursuant to the Care Act 2014 to reduce his personal budget for care from £1,651pw to £950pw. The High Court held that the Council's approach of seeking to develop independence and reducing anxiety by providing for D to spend more time alone was not unlawful. There was no legal error which warranted interfering with the Council's decision.
The court held, dismissing D's appeal, that the very significant reduction in D's personal budget had been reached at the end of a lawful process. (1 September 2017)

If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur-Aujla.

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Burial and Cremation

Oldham MBC v Makin [2017] EWHC 2064 (Ch): two Councils applied to the court for directions under s.116 of the Senior Courts Act 1981 in respect of the disposal of the body of IB, one of the Moors murderers, and for orders that the body should be lawfully and decently disposed of without further delay. M was IB's executor. The court ruled that the overwhelming factor in this case was the public interest. IB’s wishes were relevant, but they did not outweigh the need to avoid justified public indignation and actual unrest. The Councils were right to seek to ensure that there was a lawful and decent disposal of IB’s body without causing justified public indignation or unrest. M had not been justified in being so secretive about how he was intending to dispose of the body. Had he discussed the matter openly with the Councils and given clear undertakings that he was not intending to scatter the deceased’s ashes in their areas, these proceedings might have been avoided. M could not be entrusted with the ashes for disposal and it was possible that M's plans would be discovered, and there could be public disorder if a member of the public sought to stop M doing what he wanted to do with the ashes. The court accepted a proposal from a council officer that she would arrange for the ashes' disposal, and directed that there be no music and no ceremony. (13 October 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

ADCS: A country that works for all children: this position paper explores the impact of different initiatives and policies on children’s lives and outcomes, touching on child poverty, welfare reforms, the impact of austerity across the breadth of children’s services, including schools, and early help. The paper calls for a marshalling of resources across the various government departments, a reaffirmation of the value of preventative services and the establishment of a cross-government review to understand better the reasons for, and links between, rising levels of child poverty and demand for children’s statutory services. (11 October 2017)

LGA: Bright futures – Getting the best for children, young people and families: this paper sets out seven clear priorities for coordinated action across the public, community and voluntary sectors, which the LGA believes will help drive the improvement necessary to consistently offer the brightest future for children and families.
LGA has also issued a call for an urgent cash injection for children's services, after the release of official figures that show the total number of looked after children has reached a new high with 90 children a day entering care last year. (11 October 2017)

DfE: £20 million improvement programme for children’s social care: the Children's Minister has announced a government initiative to improve the lives of vulnerable children and families, with up to £20m for a new programme to help all councils improve their services. This will include: tailored peer support for local authorities, bringing in more councils to the successful Partners in Practice programme; and testing Regional Improvement Alliances, made up of neighbouring local authorities. These will enable local authorities to assess their own performance, and to challenge the performance of regional peers. The aim is to set one up in every region by April 2018. DfE has invited local authorities with a good or better Ofsted judgement to express an interest in joining the Partners in Practice programme, with an assessment and selection process to follow. (12 October 2017)

LGSCO: Foster children disadvantaged by council policy: the Local Government and Social Care Ombudsman has found that councils are putting foster children at a disadvantage compared to their peers when it comes to school transport. It is now asking councils across England to check their approach after it emerged foster children living further away from school than their peers were being treated differently by Warwickshire CC. (11 October 2017)

DfE: Direction issued to Slough Borough Council: the Education Secretary has issued a third Direction to the Council under s.497A(4) and (4B) of the Education Act 1996, requiring it to ensure that certain children's services functions continue to be exercised by the Children's Services Trust. It replaces the Direction issued on 30 September 2015. (2 October 2017)

Haringey LBC v M; Re M (Lack of Secure Accommodation) [2017] EWFC B61 (Fam Ct): this case concerned a 15 year old who was subject to an Interim Care Order. He was increasingly involved in a range of criminal activities, was beyond the control of his family, and had absconded from various family placements. He then  received a community sentence which required him to live at his grandmother's home subject to a curfew which was to be enforced by way of an electronic tag. The local authority sought a Secure Accommodation Order but it had been unable to find either a secure or a non-secure place for M. M then absconded again, and had still not been located at the time of this hearing. During that period, a place became available but it could not be held for M while the local authority tried to locate him.
In her judgment, the Family Court judge accepted that the local authority had made every effort to find a suitable placement. If there no placement was available, then the court could still not make the order even if M were located and recovered to safety. She voiced her frustration at the lack of places in secure accommodation for young people. (13 September 2017)

If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur-Aujla.

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Combined Authorities and Devolution

Grant Thornton: Combined authorities – Signs of success: this progress report shows that combined authorities have the potential to play a transformative role in creating vibrant economies within city regions. The report provides a detailed analysis of the legal, funding and governance frameworks of each of the combined authorities. It uses Grant Thornton's Vibrant Economy Index which takes into account the wellbeing of society and everybody’s ability to thrive, as a base set of indicators to achieve balanced performance assessment of sustainable growth of places over time. (26 September 2017)

Localis: Neo-localism – Rediscovering the nation: An essay collection: the independent think-tank has issued a collection of essays from leading political experts and analysts exploring themes of place, identity and national renewal in the context of the political uncertainty unleashed by Brexit and the outcome of June’s General Election. (10 October 2017)

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

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Delivery of Services

NLGN: A changemaking vision for local government: this think-piece calls for councils to embrace a bold 'changemaking' approach focused on the core values of creativity, collaboration and self-determination. It argues that the reinvention required is not the redesign of rigid structures or the institutional remodelling of organisations; instead, it must be a change which considers function over form and focuses on raising social impact above all else. Even more importantly, local government must also find ways to embed the core values of that vision within the communities and places they lead. (6 October 2017)

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

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Education

Scottish Parliament Education and Skills Committee: School infrastructure: the Committee has undertaken a short inquiry into school infrastructure and the safety of school buildings in June 2017. This followed from the collapse of the school wall at Oxgangs Primary, Edinburgh in 2016 and the subsequent independent inquiry of the incident by Professor John Cole. The Committee wanted to find out if all the necessary steps had been taken to ensure that the school estate in Scotland is safe. The evidence raises serious questions about the practices of contractors and sub-contractors that cut corners resulting in an unacceptable risk to children and the public in general. The Committee was also surprised to hear that some local authorities had minimised their responsibilities for the safe design and construction of their schools. The report concludes that lessons must be learned by the entire public sector in order to make sure that new public buildings are safe. (3 October 2017)

DfE: New education and skills measures announced: The Education Secretary Justine Greening has announced a series of measures to place education at the heart of the Government’s ambition to provide opportunity for all. The measures include support for schools that struggle to recruit and retain teachers, and  funding to tackle the attainment gap between disadvantaged pupils and their peers. (1 October 2017)

DfE: Data protection – Privacy notice model documents: under the Data Protection Act 1998, when an organisation collects personal information about an individual it must make that information available to the individual. The DfE has issued suggested text for privacy notices that schools and local authorities can issue to staff, parents and pupils about the collection of data. They can use and amend these examples of privacy notices to suit their local needs and circumstances. (13 October 2017)

Education (Supply of Information about the School Workforce) (Wales) Regulations 2017 (SI 2017/940 (W.233)): these regulations, which come into force in Wales on 31 October 2017, impose requirements on schools and local authorities in Wales to supply information relating to qualifying workers or qualifying trainees (as defined in s.113(2) and (3) of the Education Act 2005). (26 September 2017)

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

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Equality and Discrimination

Cabinet Office: Ethnicity facts and figures: the Government has launched a new online service that enables users to find information about the different experiences of people from a variety of ethnic backgrounds. It gathers data collected by government organisations and public sector bodies in one place, making it available to the public, specialists and charities. The statistics cover more than 130 topics in areas including health, housing, education, employment and the criminal justice system. (10 October 2017)

Welsh Government: Enabling gypsies, Roma and travellers: seek views on proposals which are intended to develop and improve access to help, advice and services for the gypsy, Roma and traveller communities across Wales. The new document will replace "Travelling to a better future: Framework for action and delivery plan" (2011). The consultation closes on 21 December 2017. (28 September 2017)

Chief Inspector of Education, Children's Services and Skills v Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426 (CA): the court considered whether it was direct discrimination, contrary to ss.13 and 85 of the Equality Act 2010, for a mixed-sex school to have a complete segregation of male and female pupils over a certain age for all lessons, breaks, school clubs and trips.
The school was a voluntary aided faith school for boys and girls aged between 4 and 16. It had an Islamic ethos and, specifically for religious reasons, believed that the separation of boys and girls at a certain point in their development was obligatory. This policy was made public by the school and was apparent both to parents who might wish to send their children to it and to regulators. Following an inspection of the school, the inspector's report not only criticised the school's Board for the adverse educational consequences of its policy of segregating pupils by gender but, in its final form, said that such segregation was contrary to the 2010 Act. The Board applied for judicial review of the report. Ofsted contended that, although the girls and the boys were taught the same subjects and to the same standard, they all suffered educationally from the restriction on social interaction.
The court held, allowing Ofsted's appeal, that a girl pupil who wished to mix or socialise with a boy pupil was precluded from doing so because of her sex, which was a protected characteristic. It was reasonable for Ofsted to take the view that the differential treatment was detrimental to both the girl pupil and the boy pupil. Section 13 of the 2010 Act specified what is direct discrimination by reference to a "person" and there was no reference to "group" discrimination or comparison. The judge had been wrong to approach the question of "less favourable treatment" on the footing that "each sex must be viewed as a group". Looked at from the perspective of each individual boy pupil and girl pupil, which was the correct legal approach, both boy pupils and girl pupils suffered a detriment from the operation of the school's segregation policy and, in respect of that detriment, each boy and each girl suffered less favourable treatment. The strict segregation by gender was a detriment which involved less favourable treatment because it diminished the quality of education that the girl pupils and the boy pupils would receive but for their respective sex. It was not the mere fact of segregation which gave rise to discrimination, as would be the situation under s.13(5) in the case of race, but rather it was the impact on the quality of education which the pupils would receive but for their respective sex.  (13 October 2017)

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

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European Union

DfIT: Preparing for our future UK trade policy: this policy paper explores the Government's emerging approach to establishing an independent international trade policy as the UK exits the EU. The first part outlines the world in which the UK trades and the role of trade in an economy that works for everyone, while the second part outlines the basic principles that will shape the future trading framework, and the UK's developing approach to a future trade policy. The latter includes some specific areas where the Government is preparing the necessary legal powers now to ensure we are ready to operate independently as we exit the EU. It welcomes views both on the specific legal powers and on the broader developing approach. (9 October 2017)

HM Treasury: Customs Bill – Legislating for the UK’s future customs, VAT and excise regimes: explains the Government’s approach to the Customs Bill that it will shortly introduce before Parliament. The policy paper sets out how the current customs, VAT and excise regimes operate for cross border transactions, why the Bill is necessary, and what the Bill will contain. The deadline for comments is 3 November 2017. (9 October 2017)

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

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Finance

NAO: A short guide to local authorities: gives an overview of how local government is funded, the pressures local authorities face, staffing, major recent developments and what to look out for in the main local authority services.
See also the NAO's A Short Guide to the Department for Communities and Local Government, which provides a quick and accessible overview of DCLG and focuses on what the Department does, how much it costs and key developments in DCLG’s areas of work. (3 October 2017)

Mayor of London: London to retain more business rates income in landmark deal: announces that the Mayor and the Leaders and elected Mayors of the 32 London boroughs and the City of London have now agreed in principle landmark proposals that will see the capital pilot 100 per cent business rates retention from next April, if agreed by Government. (12 October 2017)

House of Lords Library: Council services – Resourcing in two-tier areas: this briefing was prepared in advance of a debate on 19 October 2017 in the House of Lords on the resourcing of district council services in two-tier areas. It provides an overview of how local government is structured and funded, and includes information on recent funding levels. (11 October 2017)

Welsh Government: Budget Agreement 2018-19 and 2019-20: the Welsh Government has published 2-year revenue plans for 2018-19 and 2019-20 in a bid to provide certainty and stability for local government and the health service.
The Welsh Local Government Secretary Mark Drakeford has announced that local authorities will receive £4.2 billion to spend on key services in 2018-19 (3 October 2017)

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

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Governance

Well-being of Future Generations (Wales) Act 2015 (Assessments of Local Well-being) Regulations 2017 (SI 2017/939 (W.232)): the Well-being of Future Generations (Wales) Act 2015 gives a legally-binding common purpose – the well-being goals – for national and local government and for other specified public bodies, and details the principles by which the public sector should work together to deliver the long-term well-being of Wales. These regulations, which come into force in Wales on 24 October 2017, provide that in preparing an assessment of well-being under s.37 of the Act, a public services board must take into account the most recent review of air quality for their local authority area carried out under s.82 of the Environment Act 1995 and the most recent strategic noise maps made under Part 2 of the Environmental Noise (Wales) Regulations 2006 and adopted by the Welsh Ministers. (19 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

CQC: The state of health care and adult social care in England 2016/17: this latest annual assessment of health and social care in England looks at the trends, highlights examples of good and outstanding care, and identifies factors that maintain high-quality care. It states that this year’s report shows that the quality of care has been maintained despite some very real challenges. Most of us are receiving good, safe care and many services that were previously rated inadequate have recognised our inspection findings, made the necessary changes and improved. The fact that quality has been maintained in the toughest climate most can remember is testament to the hard work and dedication of staff and leaders. However, as the system continues to struggle with increasingly complex demand, access and cost, future quality is precarious. (10 October 2017)

If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur-Aujla.

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Housing

Chartered Institute of Housing: Building bridges: this best practice research guide investigates how local authorities and housing associations can maximise what they can achieve together by focusing on key areas at a time of profound pressure on the housing sector. It takes an in-depth look at current partnership working, leadership and culture, land and housing supply, housing demand, and affordability and rents. It also makes a series of recommendations for local authorities and housing associations, and policy recommendations for government. (25 September 2017)

BBC: Lib Dems – Is it right that councils are barred from borrowing to build houses?: this article, which forms part of the BBC's Reality Check series, examines Vince Cable's claim that councils are stopped from borrowing money to build council houses, but are free to "speculate" in commercial property. (19 September 2017)

DCLG: Landmark package to tackle homelessness and rough sleeping in Manchester: announces that Greater Manchester is to receive almost £3.8m to develop a new city region-wide approach to preventing homelessness and reducing rough sleeping. The funding is to develop new services and resources across all 10 boroughs of the region. This will include making hub-based services open 24 hours a day across Greater Manchester, to provide high quality support for people when they need it the most, and the adoption of a social letting agency approach across Greater Manchester to help those struggling to find secure accommodation. (12 October 2017)

DCLG: £2 billion boost for affordable housing and long term deal for social rent: the Government has confirmed plans for a new generation of council and housing association homes, with funding for affordable homes increased by a further £2bn to more than £9bn. Ministers have also confirmed plans to set a long term rent deal for councils and housing associations in England from 2020. (4 October 2017)

DCLG: £2.5 million cash boost for garden towns: the Communities Secretary has announced that nine locally-led garden town developments, from Bicester to Taunton, will each receive new funding to fast track the build out of their large housing projects. (3 October 2017)

DCLG: Letter to residents following the Grenfell Tower fire: the Communities Secretary Sajid Javid has written a further letter to residents following the Grenfell Tower fire. He gives an update on the action being taken by the Government in response to the tragedy, focusing on housing, along with details of available support and assistance. (4 October 2017)

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

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Regulatory Services

R (Wilmot) v Taunton Deane & West Somerset Magistrates' Court (Unreported, Admin Ct): the Council applied to extend an extended civil restraint order (ECRO) made against W, who had been involved in a long-running dispute with the Council concerning work done to a listed building owned by him and his wife. In June 2015, the court upheld a decision preventing W from challenging his conviction for failure to comply with an enforcement notice, as he had entered unequivocal pleas of guilty. W then brought committal proceedings against the Council, which were struck out as being totally without merit, and the Council successfully applied for an ECRO, preventing W from making any claims relating to the instant proceedings for two years without permission. W then suggested that the Council should be prosecuted for fraud and misfeasance in public office, and maintained that all court orders relating to the proceedings were a nullity.
The court held, granting the application, that an ECRO could be made where an individual had persistently issued claims without merit. Here, there was no doubt that W had been well aware of the ECRO's existence and its terms. He had continued to argue the same case, which had been rejected, and continued to threaten the Council. It appeared that he would do anything possible to avoid the consequences of the enforcement notice. His claims used up scarce public resources and were totally without merit. The ECRO should be extended for another two years. (11 October 2017)
The judgment is available on Lawtel (password required).

Woking BC v Johnson (Unreported, Admin Ct): the Council appealed by way of case stated against a magistrates' decision that J was not guilty of managing a house in multiple occupation (HMO) which was not licensed under Part 2 of the Housing Act 2004. The property was a two-storey self-contained flat situated above a restaurant that was occupied by more than five persons who did not form part of the same household. The magistrates considered that the property was not an HMO under the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 since it comprised only two storeys. The council appealed. The issue for the court was whether the magistrates had been correct to exclude the restaurant when calculating the number of storeys.
The court held, allowing the appeal, that the magistrates had been wrong to exclude the restaurant when calculating the number of storeys. The correct approach in this case clearly appeared from the explanatory note to the 2006 Order which stated that commercial premises above or below living accommodation, except where they were located in the basement, would count towards the calculation of storeys, including commercial premises that were not used in connection with, or as an integral part of, the living accommodation such as offices, shops, restaurants and pubs. The court distinguished the decision in Islington LBC v Unite Group Plc [2013] EWHC 508 (Admin) as that concerned self-contained flats, each of which was on one storey of a purpose-built block, which was a different situation. (10 October 2017)
The judgment is available on Lawtel (password required).

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

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Traffic and Transport

Welsh Government: Mandatory concessionary fares scheme in Wales: seeks views on options to improve access to and use of free bus travel in Wales. These include: Welsh Government becoming the Travel Concession Authority; increasing the age of eligibility for older people to match the UK state retirement age; the issue of 'companion' passes for disabled people; and extending the scheme to include volunteers. The consultation closes on 12 January 2018. (10 October 2017)

Welsh Government: Discounted bus travel for younger people in Wales: seeks views on proposals to encourage younger people to take the bus. The Welsh Government is committed to removing barriers that discourage younger persons from using public transport. The consultation closes on 4 January 2018. (10 October 2017)

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

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