Authority Update 24/11/17

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

27/11/2017

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:

    Children's Services    Housing
    Delivery of Services    Libraries and Museums
    Devolution    Members
    Economic Development    Parks and Open Spaces
    Elections    Planning Policy
    Employment    Regulatory and Enforcement Services
    Finance    Social Investment
    Freedom of Information    Standards
    Health and Social Care    Traffic and Transport
    Highways  

Children's Services

NCB: Turning the tide: this joint report from Action for Children, the Children’s Society and the National Children’s Bureau looks at current funding and spend right across children and young people's services, and provides an estimate of how much councils are receiving for children and young people's services and where this is being allocated. The analysis reveals the growing funding pressure on councils in England which threatens the future of children and young people's services. This fall in spending is mirrored by the ongoing reduction in central government funding for councils to allocate to children and young people's services. These downwards trends are having a noticeable impact. The three charities call on the Government to urgently address the funding gap in children and young people's services, and to work with local authorities to ensure additional funds are used to improve early intervention. Future decisions about investment in children and young people's services should take into account local need, and the Government should clarify its plans to reform local government funding. (14 November 2017)

DfE: Children's Social Care Innovation Programme – Final evaluation report: the Children’s Social Care Innovation Programme was set up in 2014 to kick start new approaches to deliver significant and sustained improvement. Wave 1 of the programme saw £110m invested in 57 projects. This report provides an overview of the evaluation findings to date and demonstrates progress against the programme’s aims. It finds that in many cases, projects funded through the Innovation Programme led to fewer children in care and more children being reunited with their birth families. In light of these findings, the DfE has tailored its Wave 2 and 3 evaluations against the most promising practice measures and outcomes emerging from the first 57 projects, identifying seven practice measures and seven outcomes that they want to examine further.
DfE has announced that Cardiff University will work with the social innovation charity Nesta to deliver a new What Works Centre for Children’s Social Care that will develop a strong evidence base around effective interventions and practice systems. (14 November 2017)

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

^back to top

Delivery of Services

Deloitte: The State of the State 2017-18 – Citizens, government and business: this report looks at the UK Government amid the complex challenge of leaving the EU. It finds that inevitably, this early phase of EU exit is taking place under intense media scrutiny and passionate political debate. But while EU exit issues may dominate headlines, the public services face more local challenges as they address rising demand, budget restraint and renewed levels of concern about social inequality. The report is constructed around three distinctive perspectives – the citizen lens, the public sector lens and the business lens. (24 November 2017)

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

^back to top

Devolution

HM Treasury: West Midlands Combined Authority – A second devolution deal to promote growth: sets out the details of the agreed new deal, which includes £6m for a housing delivery taskforce, £5m for a construction skills training scheme and £250m from the Transforming Cities fund to be spent on local intra-city transport priorities. (23 November 2017)

DCLG: Budget delivers devo deal and transport boost for North of Tyne: announces that the Government has agreed a devolution deal with Newcastle, North Tyneside and Northumberland councils. The deal sets out a range of powers and funding which will enable investments in infrastructure, skills, entrepreneurship, innovation and business growth. Once the consultation process is complete and all seven constituent authorities of the existing North East Combined Authority consent to the deal, the new Combined Authority will be established with an elected Mayor.  (24 November 2017)

ResPublica: Devo 2.0 – The case for counties: this report argues that the devolution agenda should be extended beyond the cities by embracing reform of local government in the counties. Existing county council geographies are the essential building blocks and through them, the Government could reform the existing two-tier county / district system, and move to complete reorganisation in the form of single tier unitary councils. This could help to transform the UK’s economy, with closer partnerships between communities, as well as wider towns, cities and metro-areas. It could enable counties to bypass the complexity of existing 'workarounds' between different layers of local government and could make acting to improve outcomes simpler and more effective. Furthermore, it could provide greater autonomy and self-determination for communities at the most local scale, helping them take back control. (20 November 2017)

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

^back to top

Economic Development

HM Treasury: Helping the Cambridge, Milton Keynes and Oxford corridor reach its potential: sets out the Government's overarching vision for the Cambridge – Milton Keynes – Oxford corridor, with an integrated programme of infrastructure, housing, business investment and development, as announced in the Budget. It follows on from the National Infrastructure commission's report Partnering for Prosperity: a new deal for the Cambridge-Milton Keynes-Oxford Arc. (22 November 2017)

TCPA: Garden city standards for the 21st century – Practical guides for creating successful new communities: the TCPA has published two new guides which set out the criteria for how new communities should be located and how they can be financed:
• Guide 1: locating and consenting new garden cities
• Guide 2: Finance and delivery.

(17 November 2017)

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

^back to top

Elections

Draft Combined Authorities (Mayoral Elections) (Amendment) Order 2017: this Order, once in force, amends SI 2017/67 so as to make changes to the rules governing the conduct of Combined Authority mayoral elections. In particular, it modifies ss.10 and 11 of the Representation of the People Act 2000 to enable pilot electoral integrity schemes to be held at Combined Authority elections. It also amends the definitions of "elector" and "local government elector" for the purposes of the subscription of candidates’ nomination papers at a Combined Authority mayoral election to address an issue that has arisen with these provisions, and includes new versions of the form of the nomination paper for use by candidates at a Combined Authority mayoral election as a consequence of these changes. (20 November 2017)

Draft Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2017: this Order, once in force, amends SI 2007/1024 so as to make changes to the rules governing the conduct of local mayoral elections. In particular, it modifies ss.10 and 11 of the Representation of the People Act 2000 to enable pilot electoral integrity schemes to be held at local mayoral elections. (20 November 2017)

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

^back to top

Employment

Uber BV v Aslam (Working Time Regulations) [2017] UKEAT 0056/17/1011 (EAT): Uber appealed against an employment tribunal's finding that its taxi drivers were workers rather than self-employed contractors, for the purposes of s.230(3)(b) of the Employment Rights Act 1996, reg.36(1) of the Working Time Regulations 1998 and s.54(3) of the National Minimum Wage Act 1998.
The EAT held, dismissing the appeal, that the tribunal had been entitled to reject the label of agency and the characterisation of the relationship in the written documentation – simply because the parties had used the language of self-employment did not mean that the contract did not fall within s.230(3)(b). It had been entitled to find that the reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that indicated they were not working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. Its findings were neither inconsistent nor perverse. There were obligations upon Uber drivers that they should accept trips offered by Uber and that they should not cancel trips once accepted (there being potential penalties for doing so). The drivers were required not only to be in the relevant territory, with the app switched on, but also to be "able and willing to accept assignments" - that was consistent with Uber's own description of a driver's obligation when "on-duty". The same analysis might not apply where drivers, in between accepting trips for Uber, might hold themselves out as available to other PHV operators; so it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for Uber. (10 November 2017)

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

^back to top

Finance

HM Treasury: Autumn Budget 2017: the Chancellor has presented his first Autumn Budget. Points of interest for local authorities: 

  • The Government will introduce a new Public Value Framework tool to measure how effectively public spending delivers results that improve people’s lives, following the report of the Barber review Delivering better outcomes for citizens: practical steps for unlocking public value 
  • Further devolution deals for the West Midlands, Liverpool and Tees Valley and ongoing devolution discussions for North of Tyne authorities, plus work on North Wales and Mid Wales Growth Deals, and Belfast City Deal (see above
  • No mention of any more money for social care 
  • Switch from RPI to CPI for business rates indexation, and 3-yearly business rate revaluations following the next revaluation – see the Business Rates Information letter 8/2017 
  • HRA borrowing caps to be lifted for councils in areas of high affordability pressure. Local authorities will be invited to bid for increases in their caps from 2019 20, up to a total of £1bn by the end of 2021-22 
  • Consultation on a new policy whereby local authorities will be expected to permission land outside their plan on the condition that a high proportion of the homes are offered for discounted sale for first time buyers, or for affordable rent 
  • Consultation on increasing housing density on urban areas 
  • Five new garden towns, plus housing deal with Oxfordshire 
  • 100% council tax premium on empty properties 
  • Government will lend local authorities up to £1bn at a new discounted interest rate of gilts + 60 basis points accessible for three years to support infrastructure projects that are high value for money – see response to consultation on Local Infrastructure Rate 
  • Integrated programme of infrastructure, housing, business investment and development for the Cambridge – Milton Keynes – Oxford corridor (see above
  • £1.7bn new Transforming Cities Fund to improve connectivity and support jobs across England’s city regions (see below
  • An additional £45m in 2017-18 for the Pothole Fund 
  • A £220m Clean Air Fund to help local authorities to implement additional measures tailored to their area which minimise the potential impact of local air quality plan

See also the LGA's On the day briefing. (22 November 2017)

DCLG: Consultation on the proposed changes to the prudential framework of capital finance: seeks views on proposals to update the prudential framework in light of significant changes to the economic and regulatory landscape over the past seven years that have led the sector to consider different and more innovative types of investment activity. The documents include draft revised statutory guidance on Local Government Investments and on Minimum Revenue Provision. The consultation closes on 22 December 2017. (10 November 2017)

HMRC: VAT – Refunds to combined authorities, fire and rescue authorities: details of the proposed changes to s.33 VATA 1994, announced in the Autumn 2017 Budget, that will enable combined authorities, fire and rescue authorities which are a PCC function, the London Fire Commissioner, the Scottish Fire and Rescue Service, and the Scottish Police Authority to recover the VAT incurred on purchases made to support their non-business activities. (22 November 2017)

NAO: Financial sustainability of local authorities 2018: announces that the NAO is to publish a further report on the impacts that major funding changes are having on the financial sustainability of local authorities. The new study will reassess conditions in the sector and the implications for local authority services; it will also review DCLG's stewardship role in relation to the local government finance system. The NAO has issued a call for evidence for this study. (24 November 2017)

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

^back to top

Freedom of Information

Cabinet Office: Consultation on revised Freedom of Information Code of Practice: seeks views on a draft revised FOI Code of Practice that provides best practice guidance to public authorities on how to fulfil their functions under Part I of the FOI Act 2000. it has been revised and updated in light of the Independent Commission on Freedom of Information’s report. The closing date for comments is 2 February 2018. (15 November 2017)

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

^back to top

Health and Social Care

LGSCO: Review of adult social care complaints 2016/17: this latest annual report from the Ombudsman shows that in 2016/17 they upheld 63% of adult social care investigations last year. Councils and care providers acted on more than 1,300 recommendations to put things right where the LGSCO had identified failings – an 11% increase on the previous year. In all but one case, councils and care providers acted positively to implement the recommendations. This report highlights how an individual complaint can result in improving care services for others. These cases demonstrate the power that one person speaking up can have in changing services for the better for everyone. (17 November 2017)

Mayor of London: London health and social care devolution – Memorandum of understanding: the Mayor of London, Secretary of State for Health Jeremy Hunt, London Councils and NHS, Public Health and wider health and care leaders have signed a landmark agreement which gives the Mayor, London Councils and health leaders more control over health and care in the capital, leading to more joined-up services for Londoners. There will be a London Estates Board that will bring together London and national partners to support the release of capital from surplus NHS estate and land to be reinvested in the city’s health and care system. This new way of working will speed up decision-making and ensure improvements happen much faster than the current five to 10-year average time to develop NHS estates.
See also: Health and care Devolution: What it means for London that summarises the devolution deal. (16 November 2017)

Independent Age: Saving social care – A fair funding settlement for the future: this report examines four options for the future of social care funding: means testing the Winter Fuel Payment, scrapping the triple lock on the State Pension, increasing National Insurance contributions (NICs0 and an increase in inheritance tax. It estimates that a rise in NICs by 1 per cent would immediately raise up to £5bn towards social care funding. When compared with other options for filling the funding gap, it tested as the most progressive and politically achievable option. (13 November 2017)

Cabinet Office: Government to set out proposals to reform care and support: the First Secretary and Minister for the Cabinet Office Damian Green has announced that the Government will publish a green paper on care and support for older people by Summer 2018. The paper will set out plans for how government proposes to improve care and support for older people and tackle the challenge of an ageing population. (16 November 2017)

LGSCO: Woman charged for hours of care she did not receive: the Ombudsman has criticised a council for failing to tell a woman about her care provider’s minimum charging policy, after she was charged for homecare despite workers falsifying records. The Ombudsman recommended that the council apologise to the woman for failing to consider reviewing her care and support plan and for failing to properly investigate her allegations of the short visits. It should also calculate how many hours of care the woman was not provided and adjust her payment accordingly. (22 November 2017)

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

^back to top

Highways

Office of the Chief Coroner: Regulation 28 report to prevent future deaths – Roger Hamer: this report from the Assistant Coroner for Greater Manchester North follows from an inquest into the death of a cyclist. The inquest jury found that a pothole in the carriageway had probably been the cause of his fatal fall from his bicycle. The report raises concerns over the local authority's proposal to change its highways management procedures regarding defects in the carriageway, under which a defect with a depth  of 40mm or greater was redefined as the "investigation level" rather than the "intervention level". The coroner considers that if 40mm were specified as the minimum threshold for investigation then defects which measured less than 40mm might not be investigated and defects of 40mm or above might not be repaired. Although highway inspectors had a discretion under both the current and new procedures to repair defects which did not meet the intervention or investigation criteria, the jury noted inconsistencies in the application of the current procedure and so the coroner considers that the authority's new procedure would increase the risk of future deaths, in particular to cyclists. (7 November 2017)

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

^back to top

Housing

HM Treasury: Building the homes the country needs – Autumn Budget 2017 brief: sets out the background to housing in the UK and details of the Government’s comprehensive package of new reforms to increase housing supply that was announced in the Autumn 2017 Budget. The package includes over £15 billion of additional financial support for house building over the next five years, and planning reforms to ensure more land is available for housing. (22 November 2017)

University of Bristol: Closing the gaps – Health and safety at home: this research report, commissioned by Shelter, discusses the range of legal gaps that appear to have affected or impacted on the tragedy at Grenfell Tower in June 2017. It finds that the law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent on tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with experiences of poor conditions, while tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. It recommends that a new Housing (Health and Safety in the Home) Act should consolidate and update existing law, with a particular emphasis on the responsibility of local authorities to enforce health and safety standards. The law should require that all guidance relating to health and safety in the home is updated every three years, while occupiers should have clearer routes to hold landlords and managers to account for fire safety regulations. (14 November 2017)

Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017 (SI 2017/1102): these regulations, which come into force on 16 November 2017, 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. This reduces local authorities' influence over private registered providers of social housing. The regulations will override any contrary terms within a contract that has been between the private registered provider and the local authority in respect of board appointments, voting on the board and membership of the private registered provider by the local authority. The restrictions do not apply to a private registered provider which is also an arm's length management organisation. (15 November 2017)

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

^back to top

Libraries and Museums

DDCMS: The Mendoza Review – An independent review of museums in England: Neil Mendoza carried out his review in response to the Culture White Paper in 2016. He looked at what the national infrastructure for museums is and what it could and should be; the museums sponsored directly by government; and the challenges and opportunities for all of England’s museums. This report sets out the Review's findings and outlines key recommendations for how government can support the museums sector in England.
The Government's response states that it accepts the report’s recommendations and will begin work to prioritise and make them a reality. In particular, it supports the recommendation for a partnership framework for how Arts Council England and the Heritage Lottery Fund support the rest of the sector, especially outside London, to ensure that national museum activity is joined-up, forward-looking, and supportive of collective priorities.
DDCMS has also published a Strategic review of DCMS-sponsored museums that examines 15 museums and the British Library which are directly funded by DDCMS, looking at their functions, forms, effectiveness, efficiency and accountability. (14 November 2017)

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

^back to top

Members

LGA: Councillor workbooks: the LGA has produced two 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: 

(15 November 2017)

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

^back to top

Parks and Open Spaces

R (Friends of Finsbury Park) v Haringey LBC [2017] EWCA Civ 1831 (CA): FPP appealed against the refusal of its application for judicial review of the Council's decision to hire out part of a park for a music festival. The festival required 27% of the park to be closed to the public for 16 days. The council granted a licence for the festival, purportedly exercising its powers under s.145 LGA 1972 (Provision of entertainments). FPP contended that the Council had no power to authorise such an event but the High Court held that s.145 gave the Council the necessary power to permit the festival to take place in the park. FPP appealed, arguing that s.145 did not authorise a local authority to exclude the public, or any member of it, from any part of open space.
The court held, dismissing the appeal, that as a matter of ordinary language, "enclosing" an area of land necessarily connoted putting some form of barrier round the whole of that area with a view to preventing access to and/or egress from it. Looking at the wording in its full context, Parliament intended s.145 to give a power to the relevant local authority to exclude members of the public, e.g. those who did not have a ticket and had not paid, from that part. The power in s.145 to enclose part of the park for events was entirely distinct and separate from the power in Sch.1 art.7 to Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967, such that the Council could, in any particular circumstances, exercise either power it chose. (16 November 2017)

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

^back to top

Planning Policy

DCLG: Local Plan intervention – Secretary of State letter to 15 local authorities: local planning authorities are required to publish a Local Development Scheme which sets out when the authority expects to reach key milestones in the plan-making process, and the timetable for producing documents to maintain an up to date plan. The Secretary of State has written to 15 local authorities that are showing particular cause for concern, having missed deadlines and failed to make progress in producing a Local Plan. These 15 local authorities have now been served notice that the Government has begun the formal process of intervention as set out in the Housing White Paper. (16 November 2017)

DCLG: Shale exploration – Support for mineral planning authorities: Invitation to bid: invites bids from mineral planning authorities for funding, at defined trigger points in the planning application process, to help them with the processing and consideration of shale planning applications. The Government recognises shale represents a new area for mineral planning authorities and that it will present complex and challenging issues for them in their processing of shale planning applications. This prospectus sets out how mineral planning authorities can bid for funding to improve their capacity and capability to deal with shale planning applications. Bids must be made within 28 days from one of the specified trigger points, with a final closing date of 23 February 2018. (17 November 2017)

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

^back to top

Regulatory and Enforcement Services

Home Office: Regulation of Investigatory Powers Act 2000 – Draft codes of practice: seeks views on revised codes that set out the processes and safeguards governing the use of investigatory powers by public authorities. They give detail on how the relevant powers should be used, including examples of best practice. Once issued, the codes will have statutory force and individuals exercising functions to which the codes relate must have regard to them. They are admissible in evidence in criminal and civil proceedings and may be taken into account by any court, tribunal or supervisory authority when determining a question arising in connection with those functions. The consultation closes on 28 December 2017. (16 November 2017)

Gambling Commission: Strategy 2018 - 2021: sets out the Commission’s focus and commitment in five priority areas: protecting the interests of consumers; preventing harm to consumers and the public; raising standards in the gambling market; optimising returns to good causes from lotteries; and improving the way the Commission regulates. (14 November 2017)

Money Advice Trust: Stop the knock 2017 – Mapping local authority debt collection practices in England and Wales: new research by the charity that runs National Debtline finds that local authorities increased their use of bailiffs by 14 per cent overall between 2014/15 and 2016/17, despite government guidance stating that bailiff action should only ever be used as a last resort. Bailiff use increased for all major types of debt between 2014/15 and 2016/17, with the number of council tax debts passed to bailiffs up 10 per cent, parking referrals up 27 per cent and referrals for Housing Benefit overpayments up 20 per cent. However, an increasing number of councils are working hard to improve their debt collection practices and 38 per cent actually reduced their reliance on bailiffs in that time.  The trust has published six steps that all local authorities should take to improve the way they collect debts, and is writing to the Minister for Local Government, Marcus Jones MP, to ask for his support in encouraging councils to improve. (14 November 2017)

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

^back to top

Social Investment

DCLG: London homelessness social impact bond – Qualitative evaluation report: the London Homelessness Social Impact Bond programme, launched in November 2012, aimed to use new finance and ways of working to improve the outcomes for 830 rough sleepers whose complex needs were not being met. This final qualitative evaluation report provides an overview of, and learning from, the programme, including material and analysis from previous reports. There is also an impact evaluation report which presents the results of the assessment of the impact of the intervention on rough sleeping, reconnections and entry into long-term accommodation, and learning summaries that draw out a number of key lessons. (14 November 2017)

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

^back to top

Standards

Committee on Standards in Public Life: Standards in local government: speech by Dr Jane Martin CBE at the NALC's Annual Conference on the Committee's role and how it approaches its work. She also gives details of the Committee's upcoming review into local government standards, which will be based around a consultation that will be launched in early 2018. (15 November 2017)

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

^back to top

Traffic and Transport

RAC Foundation: English council parking profits up ten per cent: new analysis of the official returns that councils make annually to DCLG shows that in 2016-17, English local authorities had a total income from on- and off-street parking activities of £1.582bn – up 6% year on year. This comprised both parking charges and penalty income. At the same time, the councils spent £763m on running their parking operations, up 2% year on year, giving a £819m surplus available to be spent on transport locally. (27 November 2017)

DfT: Record boost to R&D and new transport fund to help build economy fit for the future: announces a new £1.7bn Transforming Cities Fund that will improve transport links and promote local growth within city regions by addressing weaknesses in city transport systems in order to raise productivity and spread prosperity. The Budget report states that half will be allocated via competition for transport projects in cities and the other half will be allocated on a per capita basis to the six Mayoral Combined Authorities – £74m for Cambridgeshire and Peterborough, £243m for Greater Manchester, £134m for Liverpool City Region, £80m for West of England, £250m for West Midlands and £59m for Tees Valley. (20 November 2017)

Draft Sub-national Transport Body (Transport for the North) Regulations 2017: these regulations, which are scheduled to come into force on 1 April 2018, establish Transport for the North (TfN) as a Sub-national Transport Body and set out the functions it will exercise in relation to a transport strategy and delivery in the North of England. TfN will be the first Sub-national Transport Body to be established under Part 5A of the Local Transport Act 2008. (21 November 2017)

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

^back to top 

Related Insights

Don't ignore your legal obligations to publish on Contracts Finder

by Catherine Maddox

Updated PAS 91 – selection questionnaire for works contracts

by Emily Heard

Bevan Brittan Achieves New Management Standard for the Provision of...

by Peter Rogers

Keep up to date With Bevan Brittan

What interests you?

About you?