Authority Update 27/10/17

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

30/10/2017

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 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    Emergency Planning
    Children's Services    Employment
    Commons and Village Greens     Housing
    Communities    Procurement
    Coroner's Services    Public Health
    Delivery of Services    Rating
    Economic Development  

Adult Social Services

House of Commons Library: Health and social care integration: this briefing paper analyses recent policy and debate on the integration of NHS-provided healthcare and local authority-provided social care in the UK. This has been a key policy priority for successive Governments, with the aim of improving patient care and saving money for the NHS and local authorities. It includes an October 2017 update with information on the proposed review of local authorities' Better Care Fund allocations, for those not meeting targets on delayed transfers of care.
See also the briefing papers on Adult Social Care Funding (England) that examines the key funding pressures facing adult social care services in England and evidence of the impacts of these pressures on social care and health services; and Social care: Conservative manifesto's commitments on the means-test including the £100,000 limit (England) that considers the Conservative Party’s commitments to reform the social care means-test, including the new £100,000 means-test limit and compares the proposals to the current position, exploring their possible implications. (23 October 2017)

Ofsted: Social care compliance handbook: updated handbook for use by Ofsted staff. It explains Ofsted's powers and the legal background to its compliance work. Under the Care Standards Act 2000, Ofsted regulates adoption support agencies, children’s homes, residential holiday schemes for disabled children, independent fostering agencies, residential family centres and voluntary adoption agencies. The handbook is published to enable providers, managers and interested parties to understand Ofsted’s compliance processes. (25 October 2017)

Torbay Council v Torbay Quality Care Forum Ltd [2017] EWCA Civ 1605 (CA): the issue in this case was whether a council setting the "usual cost" of providing care to care home residents was entitled to take into account fees received by care homes from third-party top-ups, from privately-paying residents, and/or in respect of residents with enhanced needs or on Continuing Healthcare, and to deduct an amount representing an assumed fee from the actual cost of meeting the assessed care needs of the individual in question.
The Care Forum, an association representing independent care homes in Torbay, successfully challenged the Council's decision setting the fees it was prepared to pay for providing care to care home residents who were eligible for council-funded care for the year 2014–15. The judge held that the council's decision was unlawful as it had taken into account income streams that were precluded by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and DH Circular LAC (2004 (20)).
The court held, allowing the council's appeal, that the judge had misconstrued the 2004 Guidance as requiring it to disregard the effect on care homes' profitability and return of capital of all income streams other than fees paid by local authorities. There was nothing in the Directions or 2004 Guidance which precluded the Council from taking account of the three revenue streams (private fees, top up payments and NHS payments) when making the evaluative judgement of what it would expect to pay for residential care for the elderly. That judgement was informed by a complex model which took account of a very large range of considerations and worked on the best, albeit incomplete, evidence available. (19 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

Children's Commissioner: Children’s voices – A review of evidence on the subjective wellbeing of children with mental health needs in England: this report examines the wellbeing of vulnerable groups of children in England and their relationship with mental health services. The qualitative research explores the limited awareness of mental health issues in young people, focusing on their perception of mental health.
See also the briefing Children’s mental healthcare in England that sets out key findings from the research. (10 October 2017)

DfE: Working Together to Safeguard Children – Revisions to statutory guidance: seeks views on significant revisions to the statutory guidance on what’s expected of organisations to safeguard and promote the welfare of children, along with two statutory instruments: draft Local Safeguarding Partner (Relevant Agencies) (England) Regulations 2018 and draft National and Local Child Safeguarding Practice Review (England) Regulations 2018. These revisions reflect the legislative changes introduced through the Children and Social Work Act 2017. The revised guidance will replace the 2015 version of Working Together to Safeguard Children. The consultation closes on 31 December 2017. (25 October 2017)

Ofsted: Social care commentary – Protecting disabled children: Ofsted's National Director, Social Care, Eleanor Schooling, discusses effective practices to safeguard disabled children. She highlights the main ingredients for effective practice in protecting disabled children, looking at this from a strategic level for local authorities and their partners. (18 October 2017)

DfE: Corporate parenting, the local offer and personal adviser support: seeks views on guidance accompanying ss.1 - 3 of the Children and Social Work Act 2017. The draft documents include statutory guidance on applying the corporate parenting principles to care and pathway planning and on extending the personal adviser duty to care leavers age 25, and an illustrative local offer for care leavers and accompanying guidance on the local offer for local authorities. The consultation closes on 27 November 2017. (16 October 2017)

DfE: Revised guidance for virtual school heads and designated teachers: seeks views on revised statutory guidance on "Promoting the education of looked after children" and "Roles and responsibilities of designated teachers for looked after children". The updated guidance reflects new duties for virtual school heads and designated teachers to certain previously looked-after children as they continue to experience educational challenges after leaving care, that have been introduced by the Children and Social Work Act 2017. The consultation closes on 27 November 2017. (16 October 2017)

Adoption and Children Act Register (Search and Inspection) Regulations 2017 (SI 2017/978): these regulations, which come into force on 2 November 2017, enable prospective adopters approved by any adoption agency to search and inspect the Adoption and Children Act Register for the purposes of assisting them to find a child for whom they would be appropriate adopters and/ or for the purposes of assisting them to find a child for whom they would care for on a fostering basis while the adoption agency is waiting for authority to place the child for the purposes of adoption. (12 October 2017)

Armes v Nottinghamshire CC [2017] UKSC 60 (Sup Ct): the claimant (C) was abused physically and sexually by foster parents with whom she was placed while in the Council's care. The Council was not negligent in the selection or supervision of the foster parents. She brought a claim against the Council for the abuse which she suffered, either on the basis that they were in breach of a non-delegable duty of care, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Both the High Court the CA  dismissed her case.
The Supreme Court held, allowing C's appeal (Lord Hughes dissenting), that the Council was vicariously liable for the torts committed by the foster parents in this case. It was important not to overstate the extent to which external control was absent from the fostering - the Council controlled who the foster parents were, supervised their fostering, and controlled some aspects of day to day family life, such as holidays and medical treatment. More fundamentally, it was important not to exaggerate the extent to which control was necessary in order for the imposition of vicarious liability to be justified. The possibility that vicarious liability might arise in relation to the provision of elements of family life was consistent with case law. It was not necessary for there to be micro-management, or any high degree of control, in order for vicarious liability to be imposed. The court emphasised that its decision that vicarious liability should be imposed in this case was based on the regime which was in force at the relevant time under the Children and Young Persons Act 1969, the Child Care Act 1980 and the Boarding-Out of Children Regulations 1955 (SI 1955/1377); it would not be appropriate in this appeal to address the situation under present day law and practice.
The court agreed with the CA that a local authority was not under a duty to ensure that reasonable care was taken for the safety of children in care, while they were in the care and control of foster parents – that was too broad, and the responsibility on local authorities was too demanding. A local authority was in a position analogous to that of a parent, and a parent did not owe their children an obligation to guarantee that others whom they might ask to help in the management or care of the children would not be careless or deliberately abusive. (18 October 2017)

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

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Commons and Village Greens

Welsh Government: Registration of town and village greens: seeks views on proposals to commence ss.52 and 53 of, and Sch.6 to, the Planning (Wales) Act 2015 which will amend the Commons Act 2006. This will introduce new procedures providing owners with a right to end use of their land as a green. The consultation closes on 2 February 2018. (23 October 2017)

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

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Communities

DDCMS: National Citizen Service guidance for local authorities: the National Citizen Service (NCS) is a part-residential youth programme that builds the skills and confidence of young people. NCS is founded on the three key principles of social cohesion, civic engagement and social mobility. This guidance helps local authorities to embed NCS into local areas and increase the number of young people from all backgrounds and circumstances taking part in the programme. (25 October 2017)

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

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Coroner's Services

House of Lords: Medical examiners and death certification: in March 2016 the DH consulted on proposed changes to the death certification process, which would include the introduction of independent medical examiners who will confirm cause of all deaths that do not need to be investigated by a coroner. The DH Parliamentary Under-Secretary of State, Lord O'Shaughnessy, has now confirmed that the Government’s response to the consultation will be published shortly and the system will be introduced no later than April 2019. (18 October 2017)

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

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Delivery of Services

LGA: Behavioural Insights Programme – Invitation for councils to apply for match funding: building on the learning from phase one and two of the programme, the LGA is looking to work with a new cohort of local authorities to complete a behavioural insight trial and project. In this round of applications, up to five local authorities will be provided grant funding of £25,000. They will also be required to match fund the grant with £25,000 of their own money. The deadline for applications is 10 November 2017. (27 October 2017)

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

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Economic Development

DCLG: Review of Local Enterprise Partnership governance and transparency: following a report by the Public Affairs Committee in July 2016, the Government asked Mary Ney to conduct a review into LEP governance and transparency. This report finds that overall, there appears to be commitment from the LEPs to meeting the requirements of the National Assurance Framework but issues remain on the effectiveness of implementation in some cases. It identifies a number of measures which would give greater assurance to the Accounting Officer and government on the governance and transparency of LEPs. It contains a number of recommendations which should be taken forward in partnership with the LEPs and with accountable bodies. (26 October 2017)

Welsh Government: Targeted Regeneration Investment – Guidance for local authorities and delivery partners: guidance on a new £100m capital investment programme for projects that promote economic regeneration and serve the aims of wider sustainable development, with activities focused on the individuals and areas most in need. The new regeneration programme will be able to invest in projects from April 2018 onwards. A National Regeneration Investment Panel will also be established which will be charged with ensuring that the investment available is utilised as effectively as possible across Wales. (20 October 2017)

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

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Education

DfE: Post-16 transport to education and training – Statutory guidance for local authorities: updated and revised version of the statutory guidance issued under s.508H and s.509AB of the Education Act 1996 on local authorities' arrangements for the provision of transport to facilitate the attendance of all persons of sixth form age receiving education or training. (26 October 2017)

LG&SCO: Education, Health and Care Plans – Our first 100 investigations: this focus report looks at the common issues seen by the Ombudsman in its first 100 investigations into complaints about the new Education Health and Care (EHC) Plans, which were introduced in 2014 to replace Statements of Special Educational Needs (SEN). It finds that families of children with special educational needs are sometimes facing a "disproportionate burden" to ensure they get the support they need. One of the overriding features is significant delay in the process. Others issues include: failing to involve parents and young people properly in the decision-making process; not gathering sufficient evidence to inform decisions; and a lack of proper forward planning when young people move between key educational stages. (23 October 2017)

LGSCO: Council delays left boy without proper education for 18 months: an Ombudsman investigation about a Sheffield schoolboy left without the right SEN support for 18 months demonstrates to other authorities the severe impact on children and families when EHC plans are not produced on time, or transferred from Statements of SEN promptly and efficiently. (19 October 2017)

DfE: PE and Sports Premium doubles to £320 million: announces that primary schools' funding to improve the quality of their PE and sport provision is being increased from £160m to £320m a year. The Government is also investing £100m through the Healthy Pupils Capital Fund to facilitate improvements to children’s physical and mental health by increasing and improving access to and use of relevant facilities. (24 October 2017)

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

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Emergency Planning

DCLG: The Bellwin Scheme of emergency financial assistance to local authorities – Guidance notes for claims 2017 to 2018: guidance notes setting out the terms under which DCLG will make emergency financial assistance available to local authorities. There is also a spreadsheet giving the individual local authority Bellwin thresholds. (23 October 2017)

LGA: A Councillor's workbook on acting on climate change: this workbook is a learning aid for councillors on the roles, opportunities and drivers for council-led action on the changing climate, both to reduce local carbon emissions and to build resilience to extreme weather. (20 October 2017)

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

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Employment

DCLG: Apprenticeship reforms – Guide for local authorities: this guide sets out what apprenticeships are, how local authorities can use them, and how the apprenticeship levy and the public sector apprenticeship target apply to local authorities. It explains how levy funds are calculated and how local authorities can access apprenticeship funding through an online apprenticeship service which enables them to find and pay for apprenticeship training more easily. It also includes information for the small number of authorities that are not liable to pay the levy but wish to take advantage of the Government’s co-investment offer. (24 October 2017)

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

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Housing

DCLG: Homelessness code of guidance for local authorities: seeks views on a revised draft Homelessness Code of Guidance that provides direction on how local authorities should exercise their homelessness functions and apply the law in practice. It applies to local housing and social services authorities, who are required to have regard to the guidance in exercising their functions in relation to homelessness. The Code has been revised to include reforms under the Homelessness Reduction Act 2017, which places duties on local authorities to intervene at earlier stages to prevent homelessness in their areas. The Act also requires local authorities to provide homelessness assistance to all those affected, not just those who are protected under existing legislation. The consultation closes on 11 December 2017. (16 October 2017)

DCLG: Homelessness Reduction Act – New burdens funding: information on the £72.7m funding being allocated to local authorities to meet the new burdens costs associated with the additional duties contained within the Homelessness Reduction Act 2017 over the course of the Spending Review. The local authority allocations cover 2017/18, 2018/19 and 2019/20. The new burdens assessment explains how DCLG has calculated the overall funding and the methodology note explains how the funding is distributed between local authorities. (16 October 2017)

DCLG: Letter about identifying all residential tower blocks with ACM cladding – Legal clarification: letter from Neil O’Connor, Director, DCLG Building Safety Programme Policy to local authority chief executives regarding the legal powers under which councils can act should enforcement action be required. It provide DCLG’s interpretation of the Housing Act 2004, and the regulations and Housing Health and Safety Rating System made under it. DCLG’s view is that the powers available to local authorities under this regime are available in respect of the external cladding systems of tall residential buildings.
See also the New burdens assessment update: letter from Tamara Finkelstein, Director General, DCLG Building Safety Programme, to local authority chief executives on what does and what does not constitute a new burden when collecting information on private sector buildings. (19 October 2017)

LGA: The impact of homelessness on health: this guide supports local authorities in protecting and improving their population’s health and wellbeing, and reducing health inequalities, by tackling homelessness and its causes. (28 September 2017)

Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2017 (SI 2017/1025 (W.263)): these regulations, which come into force on 1 December 2017, amend s.25Cthe Children Act 1989, s.2 of the Local Government and Housing Act 1989 and ss.76 & 81 of the Children and Families Act 2014 in consequence of changes introduced by the Social Services and Well-being (Wales) Act 2014. (25 October 2017)

Panayiotou v Waltham Forest LBC; Smith v Haringey LBC [2017] EWCA Civ 1624 (CA): this case considered the test for determining whether a person was in priority need of accommodation under s.189(1)(c) of the Housing Act 1996.
P and S applied for accommodation on the grounds that they were vulnerable and in priority need. The Council refused their applications, applying the test in Hotak v Southwark LBC [2015] UKSC 30, in which Lord Neuberger said that "vulnerable" in s.189(1)(c) meant "significantly more vulnerable than ordinarily vulnerable" as a result of being rendered homeless.
The court dismissed P's appeal but allowing S's appeal. In P's case, the reviewing officer had asked herself whether as a result of a characteristic within s.189(1)(c) P would suffer "more harm" than an ordinary person in consequence of being without accommodation. That was the correct legal test. In S's case, the reviewing officer had concluded that S might well be "more vulnerable than ordinarily vulnerable" and so had performed the comparative exercise required by Hotak. He therefore should have concluded that S had priority need. He must have interpreted "significantly" as importing a quantitative threshold or "more harm plus" and so had misapplied the test. S's case would therefore be remitted for redetermination.
Obiter, the court also expressed its opinion on S's argument that the Council was precluded either (a) by the terms of s.149 of the Equality Act 2010 which imposed the Public Sector Equality Duty (PSED), or (b) by the terms of its Constitution, from contracting out the function of conducting homelessness reviews since it was no longer possible to contract out any function which was subject to the PSED because a local authority's PSED was non-delegable. The court stated that when the Council contracted out its homelessness functions to HRL, the exercise of its functions was transferred to HRL and anything done by HRL was treated as having been done by the Council. Moreover, s.149(2) of the Equalities Act 2010 imposed the PSED on HRL, so there was no gap in the application of that duty. The contracting out arrangements did no more than enable HRL to carry out the practical implementation of those statutory obligations. Furthermore, decisions taken by officers under Part VIII of the Housing Act 1996 did not fall within the Constitution's proviso that prohibited delegation of the Council's discretionary decision-making. The contracting out of homelessness review functions was lawful under the Council's Constitution. (19 October 2017)

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

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Procurement

Wales Audit Office: Public procurement in Wales: this report examines whether there is evidence that current procurement arrangements in Wales are helping to deliver value for money in public spending and are fit for the future. It concludes that national governance arrangements for procurement could be strengthened and there is clear scope for improvement in procurement arrangements at a national and local level. Public bodies also face challenges in balancing potentially competing procurement priorities, responding to new policy, legislation and technology, and in the recruitment and retention of key personnel. (17 October 2017)

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

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Public Health

Public Health (Minimum Price for Alcohol) (Wales) Bill: this Bill has been introduced before the Welsh Assembly and is currently at Stage 1. The Bill provides for a minimum price for the sale and supply of alcohol in Wales by certain persons and makes it an offence for alcohol to be sold or supplied below that price. The Health, Social Care and Sport Committee will now consider the Bill. (23 October 2017)

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

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Rating

Welsh Government: Reforming the non-domestic rates appeals system in Wales: seeks views on proposals to reform the system for appealing valuations for non-domestic rating purposes in Wales with the aim of improving the efficiency and effectiveness of the system for government, practitioners and ratepayers. The consultation closes on 9 January 2018. (17 October 2017)

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

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