Authority Update 10/11/17

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

13/11/2017

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    Governance 
   Business Rates    Housing
   Children's Services    Members
   Delivery of Services    Planning Policy
   Education    Police
   Emergency Planning    Procurement
   Finance    Publicity

Adult Social Services

DBEIS: Interim enforcement of the National Minimum Wage in the social care sector – "Sleep-in" shifts: this updated guidance announces that the Government has launched a new compliance scheme for social care providers that may have incorrectly paid workers below legal minimum wage hourly rates for sleep-in shifts. Social care employers will be able to opt into the new Social Care Compliance Scheme, giving them up to a year to identify what they owe to workers, supported by advice from HMRC. Employers who identify arrears at the end of the self-review period will have up to three months to pay workers. There is also guidance for employers. (1 November 2017)

LGA: Adult social care funding – State of the nation 2017: based on an assessment of potential future increases in demand for services, plus the costs of service delivery, the LGA estimates that local government faces a funding gap of £5.8bn by 2020. This paper calls on the Government to develop a balanced approach that does not give one part of the system primacy over the other. It argues for a new approach that moves beyond the BCF and allows local areas to agree long-term plans for integration, with funding for social care going directly to councils. (11 October 2017)

LGA: Making safeguarding personal – For Safeguarding Adults Boards: this guidance sets out essential steps which underline that development of Making Safeguarding Personal (MSP) is not simply about a focus on personalised front line practice but requires a whole system approach across and within organisations. The Board has a coordinating role in this. The guidance supports Boards both in their assurance role and in actively supporting and leading a culture change towards Making Safeguarding Personal.
The publication is part of a suite of resources to support Boards and partners in developing and promoting MSP – see also:
• What might 'good' look like for the police?
• What might 'good' look like for advocacy?
(2 November 2017)

Tinsley (by his Litigation Friend and Property & Affairs Deputy Hugh Jones) v Manchester City Council [2017] EWCA Civ 1704 (CA): T had been compulsorily detained in hospital under s.3 of the Mental Health Act 1983 after he was injured in a road traffic accident that left him with an organic personality disorder. He was awarded damages of £3.5m against the other driver, which included nearly £2.9m for future care. He was discharged from hospital to a mental health nursing home, funded by the Council under s.117 of the 1983 Act. He later left the nursing home, since when the cost of his accommodation and aftercare services had been paid for by T's deputy appointed by the Court of Protection to manage his property and affairs, from the damages received in the personal injury action. The deputy applied for an order that the Council, as relevant local social services authority, comply with its duty to provide aftercare services under s.117. The Council refused, on the basis that T had no need for such provision because he could fund it himself from his personal injury damages. The court ruled that the Council's refusal to provide after care services was unlawful.
The Court of Appeal held, dismissing the Council's appeal, that the Council's argument that its s.117 obligations to provide aftercare services did not require it to provide, or arrange for the provision of, such services if a claimant had funds available for that purpose provided by a tortfeasor, was impossible. Case law made it clear that that charging persons such as T was impermissible. The Council was effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it could not recover by the front. The duty to provide aftercare services was also imposed on CCGs and it was accepted that CCGs could not charge for their services or take patients' means into account when deciding what services to provide. It would be odd if the local authorities could decide not to make provision for aftercare services by reason of any personal injury award but could so decide in relation to "what is essentially a health-related form of care and treatment". It was not immoral or low principled to claim a benefit to which Parliament had made clear T was entitled and there was no suggestion that T did not genuinely believe, at the time of his personal injuries case, that he would access private care rather than state care. Unless there was some specific inhibition on deputies appointed by the Court of Protection arising from the risk of double recovery, there was no reason why T should not claim the benefit to which he might be entitled under s.117.
The court dismissed the Council's double recovery argument that the local authority was not liable under s.117 where an applicant had funds still available from his award. The courts would seek to avoid double recovery by a claimant at the time they assessed damages against a negligent tortfeasor, so if it was clear that a claimant would rely on a local authority's provision of aftercare services, he would not be able to recover the cost of providing such after care services from the tortfeasor. However, it did not follow from this that, if a claimant was awarded damages for his aftercare he was thereafter precluded from making application to the local authority. (1 November 2017)

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

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Business Rates

DCLG: Business Rates Information Letter (7/2017) – Better billing and digitalisation measures: confirms that the Government no longer intends to introduce a mandatory statutory requirement for e-billing by April 2018. Nevertheless, the Government remains committed to modernising the billing process and encourages those billing authorities which currently don’t offer electronic billing to continue to develop this capability. It will continue to work with local billing authorities and other stakeholders to standardise and simplify business rate bills, and will develop guidance and a model bill. (6 November 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

DfE: Care of unaccompanied migrant children and child victims of modern slavery – Statutory guidance for local authorities: guidance for local authorities and staff running local multi-agency safeguarding arrangements, setting out the steps they should take to plan for the provision of support for looked-after children who are unaccompanied migrant children, and who may be victims, or potential victims, of modern slavery. This is statutory guidance issued under s.7 of the Local Authority Social Services Act 1970 and so must be complied with by local authorities when exercising these functions, unless there are exceptional reasons which justify a departure.
See also the Government's Safeguarding strategy - unaccompanied asylum seeking and refugee children, which sets out the additional actions that the Government will take to safeguard and promote the welfare of such children, in recognition of the increasing numbers and specific needs of unaccompanied children in the UK, unaccompanied children arriving through a legal pathway and unaccompanied children arriving clandestinely. (1 November 2017)
The LGA has published a briefing on Local authority support for child refugees.

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

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Delivery of Services

LGA: House of Commons debate on devolution and district councils: this briefing  prepared for Commons debate on 15 November, considers how district councils are experiencing a range of demographic and economic challenges and must deliver services in a context where all councils face a £5.8bn funding gap by 2020. (10 November 2017)

Reform: Vive la devolution – Devolved public-services commissioning: the think tank argues that commissioning of over £100bn of key public services spend, including the NHS, offender management and employment support, should be devolved to around 38 "super councils". International examples show that this model can deliver better outcomes at a lower cost to taxpayers. (1 November 2017)

Zurich Municipal: Why are we here? The 2017 Senior managers’ risk report: this is ZM's fifth annual commentary on changing attitudes about the role of the public sector in an era of austerity and commercialisation. It finds that some councils are now one step beyond austerity. While many are still cutting services to manage new funding realities, others are instead looking at employing new business models, investing in growth and basing their financial futures on new commercial activity. There is growing discussion, and in some cases alarm, among council managers about how ethical and commercial priorities fit together within the climate of entrepreneurialism and growing public sector commercialisation. The report makes plain that most local authorities are between cultures as they consider "jumping out of the frying pan (of austerity) and into the fire (of commercialisation)". (2 November 2017)

DCLG: £18 million extra funding for council services: announces the second allocations from the £100m Controlling Migration Fund to help alleviate pressures on local services such as housing, education and health services resulting from recent migration. The Fund is available over the four years from 2016-17 to 2019-20. (9 November 2017)

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

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Education

DfE: Good intentions, good enough?: report of an independent review by Dame Christine Lenehan and Mark Geraghty that looked at the experiences and outcomes of children in residential special schools and colleges. The report sets out how children and young people with special educational needs and disability (SEND) are currently supported in residential special schools and colleges, and makes recommendations to support children, young people and their families to improve their experiences and outcomes. These include that the DfE creates a national leadership board for children and young people with high needs, reporting to the Minister for Children and Families. (6 November 2017)

DfE: Statutory visits to children with special educational needs and disabilities or health conditions in long-term residential settings – Statutory guidance for local authorities, health bodies and health or educational establishments: this guidance explains responsibilities for safeguarding children and young people with SEND and health conditions placed for consecutive periods of three months or more in residential schools, hospitals and other residential establishments. Responsible local authorities are required to visit these children regularly, maintain contact, and intervene as appropriate when there are significant changes in their circumstances. Reports of such visits must consider whether or not the local authority should provide any services to support the continuing active involvement of the child or young person’s family in their life and what other steps it should take under the Children Act 1989 to safeguard and promote the child or young person’s welfare. The guidance is issued under s.7 of the Local Authority Social Services Act 1970 and local authorities are required to act in accordance with this guidance unless exceptional reasons justify a variation. (6 November 2017)

DfE: National Citizen Service – Guidance for schools and colleges: this non-statutory guidance gives suggestions about how best to use the National Citizen Service (NCS) in a school or college to help develop the skills and confidence of students. It includes seven actions for schools and colleges to take to help students get involved in the NCS. (8 November 2017)

DfE: Residential accommodation for 16-18 year olds – National minimum standards: seeks views on  updated national minimum standards for residential accommodation in FE colleges, sixth form colleges, designated institutions and 16-19 academies. These standards are published by the Secretary of State under s.87C of the Children Act 1989 and are relevant to the duty to safeguard and promote the well-being of children accommodated at these types of institutions. Ofsted inspects against these standards and providers can use them to assess their own services, to train staff, and as a guide for parents and students. The consultation closes on 26 January 2018. (7 November 2017)

DfE: The Flexible Learning Fund – Guidance on submitting proposals: the Government has launched the Flexible Learning Fund that will provide grant support to projects which develop methods of delivering learning that are flexible and easy to access for adults who are in work, or returning to work, with either low or intermediate level skills. This non-statutory guidance helps providers of adult learning, employers and other organisations to understand how to complete a project proposal. The Fund will award up to £10m with a maximum of £1m for a single proposal. The deadline for submitting proposals is 31 January 2018. (31 October 2017)

DfE: Increasing flexible working opportunities in schools: this policy paper sets out how the Government is working with the education sector to help schools adopt flexible working arrangements that benefit teachers and children alike. (30 October 2017)

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

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Emergency Planning

DfT: Guidance to local authorities – Mitigating security vulnerabilities outside railway, bus and coach stations: the DfT regulates and provides guidance on counter terrorism security regimes across the transport sector to protect people and infrastructure. Local authorities have a key part to play by ensuring that the public environment they manage adjacent to stations does not provide an attractive alternative terrorist target. This guidance aims to help local authorities contribute to the safety and security of people using or nearby stations, through appropriate management of the adjacent public areas. (9 October 2017)

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

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Finance

HM Treasury: Shale Wealth Fund – Response to the consultation: sets out the Government's plans in light of responses to the August 2016 consultation on the delivery method and priorities of the Shale Wealth Fund. It sets out a clear framework for how local communities will directly benefit from a share of the tax revenues from shale development. This includes the principle that local communities will decide how money is spent, and the next steps for developing the details of how that process will operate. (11 November 2017)

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

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Governance

Independent Grenfell Recovery Taskforce: The Taskforce initial report: this report looks into the recovery process of Kensington and Chelsea RLBC following the Grenfell Tower fire. It finds that the Council under its new leadership recognises the challenges it faces and is committed to delivering a comprehensive recovery programme, so they do not see any practical advantage for a further intervention at this time. The report contains a number of initial recommendations based on the overall premise that the Council should continue with its work under its new leadership. It identifies four key areas in which the Council need to step up: pace, innovation, skills, and culture change with greater empathy and emotional intelligence. (31 October 2017)

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

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Housing

LGA: Response to the DCLG consultation ‘Planning for the right homes in the right places’: the Government’s September 2017 consultation includes a proposal for a standard approach to assessing local housing need. The LGA stresses in its response that any model needs to be responsive to local housing need and allow councils to reflect the complexities of different housing markets. It is concerned that the proposed model in its current form does not effectively do this, and it has called for it to be optional. This will allow local planning authorities, who are best placed to understand their local housing markets, to use it if it is appropriate for their area. (9 November 2017)

DCLG: Funding Supported Housing – Policy statement and consultation: outlines the Government’s proposals for a flexible funding approach for the supported housing sector, to come in to effect from April 2020. It has also launched two consultations on the details of the models, one on housing costs for sheltered and extra care accommodation, and one on housing costs for short-term supported accommodation. The closing date for both consultations is 23 January 2018. (31 October 2017)

DCLG: Improving access to social housing for victims of domestic abuse: seeks views on proposed new statutory guidance to local authorities to assist victims of domestic abuse in refuges to access social housing. The guidance makes it clear that local authorities should treat victims of domestic abuse, currently in safe accommodation such as a refuge, as a priority for social housing. It also makes clear that those victims who have fled to refuges in other parts of the country should not be disadvantaged in accessing social housing. The consultation closes on 5 January 2018. (30 October 2017)

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

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Members

LGA: Councillor workbooks: the LGA has produced three more workbooks that are intended to provide councillors with insight and assistance with the key skills which will help them to be most effective in their role. These cover:
• Community leadership
• Facilitation and conflict resolution
• Handling casework.
(7 November 2017)

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

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Planning Policy

R (Harvey) v Mendip DC [2017] EWCA Civ 1784 (CA): H applied for judicial review of the Council's decision to grant outline permission for development of a paddock in H's village to build "up to 6 affordable homes and 1 open market dwelling house". H claimed that the grant of permission breached Development Policy 12 (Rural Exception Sites) (DP12) in the Council's Local Plan which stated that affordable housing was permitted where it met "a clearly identified need for affordable housing as identified in the latest Local Housing Needs Assessment specific to that settlement" and the need could not "reasonably be met in any other way on a site where housing would be permitted under normal policies". The relevant needs assessment for the village, produced in 2013, identified a need for five affordable homes. H contended that DP12 was  a precise statement of policy and that its meaning was clear: that a development to provide affordable homes in the village would only comply with it if it met the clearly identified need set out in the 2013 assessment of five affordable homes. The Council argued that policy DP12 should be read as incorporating an element of flexibility in its application, and that the grant of outline permission for six affordable homes was only in excess of the figure of five in the 2013 assessment by a narrow margin of one and so was well within the scope of the planning judgment allowed to the Council under the policy. The judge agreed with this argument.
The court held, allowing H's appeal, that the judge had erred on this point. On an objective interpretation of policy DP12 in its proper context, it only permitted the grant of planning permission for up to five affordable houses, that being the clearly identified need as set out in the 2013 assessment. H had presented objections to the development at the Planning Board's meeting in a way which covered the point made in this appeal, so the Planning Board had proceeded to grant planning permission when it was fully on notice of the argument that the proposed development was not properly justified by local need for affordable housing. Even if H had said nothing at that stage, it was incumbent on the Planning Board to act properly in the public interest and to apply the planning policies in the Local Plan correctly. (7 November 2017)

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

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Police

DH: Guidance for the implementation of changes to police powers and places of safety provisions in the Mental Health Act 1983: non-statutory guidance on putting into practice changes to the provisions on police powers and places of safety, in the Mental Health Act 1983. The changes relate to police powers to act in respect of people experiencing a mental health crisis. The intention is to ensure their care and safety. (31 October 2017)

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

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Procurement

LGA: Encouraging innovation in local government procurement: report from the LGA's National Advisory Group (NAG) for local government procurement, which established a working group last year to make recommendations on the policies and practices that local government could follow to encourage innovative procurement. In particular, it examined the impact of the changes launched in the 2015 PCR. The report makes a number of recommendations and follow up actions for the NAG and for councils, especially in the areas of best practice and information sharing. It notes the lack of quantitative data on the deployment of innovation in public procurement, and suggests that this be followed up urgently. (1 September 2017)

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

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Publicity

DCLG: Communities Secretary takes action on council publications: announces that the Communities Secretary has issued Directions to Hackney and Waltham Forest LBCs requiring them to comply with the Publicity Code by stopping publishing their newspapers so frequently. The councils must take the necessary decisions within 14 days of the Directions being issued, in order that they are in a position to comply from 6 February 2018. (6 November 2017)

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

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