Authority Update 5/1/18

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

08/01/2018

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 four 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
   Anti-social Behaviour    Government Policy
   Audit    Health and Safety
   Children's Services    Housing
   Communities    Judicial Review
   Competition    Overview and Scrutiny
   Delivery of Services    Planning Procedure
   Economic Development    Procurement
   Education    Public Health
   Employment    Regulatory Services
   Elections     Standards
   Finance and Rating    Tortious Liability
   Fire and Rescue Authorities  

 Adult Social Services

Richards v Worcestershire CC [2017] EWCA Civ 1998 (CA): R had sustained serious head injuries in a road traffic accident, and received £2m damages which were managed by his deputy. He was compulsorily detained in hospital under s.3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he received various aftercare services which were funded by himself and his deputy. He brought a claim in restitution against his local authority and CCG for the costs of those aftercare services on the grounds that the defendants were liable for the costs under s.117 of the 1983 Act. The Council and the CCG appealed against a refusal to strike out R's claim as an abuse of process. They argued that the exclusivity principle laid down in O'Reilly v Mackman [1983] 2 AC 237 applied, so that R should have brought his claim by judicial review, and also that their alleged non-compliance with s.117 did not entitle R to recover damages for unjust enrichment or restitution.
The court held, dismissing the appeal, that these were matters for decision at trial and were not a proper basis for striking out R's claim. The exclusivity principle applied where a claimant was challenging a public law decision or action and either his claim affected the public generally, or justice required for some other reason that the claimant should proceed by way of judicial review.  The exclusivity principle should be kept in its proper box - it should not become a general barrier to citizens bringing private law claims, in which the breach of a public law duty was one ingredient. Here, R's claim was based upon the allegation that the defendants delivered to him after-care services pursuant to s.117 of the 1983 Act, but failed to make payment for those services as was their duty. This was a private law claim, even though based upon s.117 and it had no wider public impact. Justice did not require for any other reason that R should proceed by way of judicial review. If the exclusivity principle was allowed to block this claim, it would become an instrument of injustice. Reviewing case law, a patient who received inadequate aftercare services could not claim damages for breach of statutory duty; however, R's case was the opposite of that scenario – he claimed that he had received adequate aftercare services, and so the defendants should pay for them. (12 December 2017)

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

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Anti-social Behaviour

Home Office: Anti-social behaviour powers – Statutory guidance for frontline professionals: the Government has updated the statutory guidance on the new powers to tackle anti-social behaviour that were introduced through the Anti-social Behaviour, Crime and Policing Act 2014, in the light of experience since the new powers were introduced. The changes place a greater focus on the impact of anti-social behaviour on victims and on their needs, to ensure that the relevant legal tests are met before the powers are used. The revised guidance underlines the importance of ensuring that the use of the powers are focused on specific behaviour that is anti-social or causing nuisance, and that the issues of local consultation, accountability and transparency are addressed. (24 December 2017)

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

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Audit

PSAA: Report on the results of auditors’ work 2016/17 – Local government bodies: this is the third report on the results of auditors’ work at local government bodies published by PSAA. It summarises the results of auditors’ work at 497 principal bodies and 9,752 small bodies for 2016/17. The report covers the timeliness and quality of financial reporting, auditors’ local value for money work, and the extent to which auditors used their statutory reporting powers. While the latest results show a "solid position" for most councils, with general high standards of financial reporting being maintained "despite the financial and service delivery challenges currently facing local government", the report shows that auditors issued three adverse options and 27 qualifications in relation to authorities’ value for money arrangements. (19 December 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

LGA: Response to the DfE consultation on changes to the statutory guidance 'Working Together to Safeguard Children', new 'child death review' guidance, and new regulations: in October 2017, the DfE issued a consultation on significantly revisions to the statutory guidance on what’s expected of organisations to safeguard and promote the welfare of children, along with associated draft regulations. The LGA has critically examined the proposals. It argues that, while it welcomes the principle of greater flexibility for local areas to design multi-agency arrangements that work best for their local circumstances, this flexibility must be couched within a robust regulatory framework to ensure consistency of quality and effectiveness. It believes that the provisions outlined in the consultation fall some way short of this ambition. (21 December 2017)

DfE: S31 grant determination letter for Children’s Social Care Innovation Programme grant GR1000335: sets out the amount of funding allocated to five local authorities to support their projects relating to innovation and reform in children’s social care. The money is not ring-fenced. (21 December 2017)

ICO: Children and the GDPR guidance: seeks views on draft guidance for UK organisations who are processing children’s personal data under the new General Data Protection Regulation (GDPR), which introduces new, specific legal responsibilities from 25 May 2018. The GDPR contains provisions intended to enhance the protection of children’s personal data and to ensure that children are addressed in plain clear language that they can understand. The proposed guidance sets out the child specific considerations that data processors need to think about when deciding on the lawful basis for processing a child’s personal data. The consultation closes on 28 February 2018.
The DfE has published privacy notice model documents with suggested wording that schools and local authorities may wish to issue to staff, parents and pupils about the collection of data, to comply with the Data Protection Act 1998 and GDPR. (21 December 2017)

Ofsted: Social care commentary – Hidden children: The challenges of safeguarding children who are not attending school: Ofsted's National Director, Social Care, Eleanor Schooling, discusses how to safeguard more effectively some children who are currently home educated.  (21 December 2017)

Ofsted: The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2016/17: the Annual Report looks at schools, early years, further education and skills and children’s social care for the academic year 2016 to 2017. The Chief Inspector, Amanda Spielman says that the life chances of the vast majority of young people in 2017 are the best they ever have been; however, there are still areas of persistent under-performance in the education and care systems where policy-makers, professionals and Ofsted need to direct their support to improve outcomes for children and young people. (13 December 2017)

Welsh Government: Childcare, play and early years workforce plan: sets out the Welsh Government's ambition to develop a highly skilled childcare and play and early years workforce which is recognised as a highly regarded profession and career of choice, and one which society values for its contribution to children’s learning and development. To support childcare providers to grow and operate sustainably, the Welsh Government will prioritise support for the care sector by supporting new and existing business to increase the number of childcare places on offer across Wales. (15 December 2017)

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

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Communities

AgeUK: Jo Cox Commission on Loneliness final report – Combatting loneliness one conversation at a time: the independent, cross-party Commission of MPs and charities looked at what could be done to help lonely people in our community. This report shares the ideas which the Commission has worked on over the past year, and it challenges national government to step forward and lead a renewed push to tackle loneliness. It also highlights how local communities can help. (15 December 2017)

DCLG: Cathedrals and their communities – A report on the diverse roles of cathedrals in modern England: this report applauds England’s 42 Anglican cathedrals for their continued importance as places of worship, their wider community work and their commitment to promoting local economic growth. The report highlights cathedrals as diverse churches that are not only important sacred centres of worship but also places of valued social support and community and interfaith engagement. (29 December 2017)

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

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Competition

CMA: Local authorities and competition: this report draws together case studies from CMA work that offer insight into how local authorities can identify and address competition risks, and secure the benefits of competition for local consumers and taxpayers. (20 December 2017)

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

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Delivery of Services

LGA: Latest Behavioural Insights Programme awards announced: announces funding for five organisations to support their behavioural insight projects in a bid to encourage innovation in local public services. (21 December 2017)

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

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Economic Development

Welsh Government: Regional investment in Wales after Brexit: one of the Welsh Government's priorities for the UK’s future outside of the EU is the importance of continued devolved funding and regional investment of at least the level that Wales currently receives from the EU. This new policy document develops this thinking on the future of regional investment policy in Wales. It calls for every penny of the £370m that Wales currently receives from the EU each year to be replaced by the UK Government and added to the Welsh Government’s annual budget. The paper rejects the idea of a Westminster-controlled UK Prosperity Fund and calls for regional investment decisions to continue to be made in Wales. The deadline for comments on the paper is 23 March 2018. (14 December 2017)

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

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Education

DfE: Keeping children safe in education: seeks views on proposed changes to the statutory guidance that sets out what schools and colleges should do and the legal duties with which they must comply to keep children safe. The proposals reflect the changes being made, in parallel, to the statutory guidance Working Together to Safeguard Children, that are the subject of a separate consultation issued in October 2017. It also includes new departmental non-statutory advice on sexual violence and sexual harassment between children in schools and colleges. The consultation closes on 22 February 2018. (14 December 2017)

DfE: Recruiting a headteacher: this guide for governors and trustees highlights the importance of professional recruitment practice in recruiting and selecting headteachers. It identifies good practice, emphasises the need for fairness and transparency and signposts to all related guidance. It should be read alongside the recruitment toolkit. (14 December 2017)

DfE: Careers guidance and access for education and training providers: updated statutory guidance on the duties under ss.42A1, 42B and 45A of the Education Act 1997 and s.72 of the Education and Skills Act 2008 to provide careers and education guidance. These include a duty on governing bodies to ensure that arrangements are in place to allow a range of education and training providers to access all pupils in years 8-13 to inform them about approved technical education qualifications and apprenticeships, and to publish a policy statement setting out these arrangements. The guidance is for headteachers, school staff and local authorities that maintain pupil referral units. It state that the Government wants to go beyond the statutory duties and introduce a framework around which schools can develop and improve their entire careers programme, in order to promote a shared understanding of what excellent careers provision looks like and a consistent approach to achieving it. The Government expects all schools to use the Gatsby Benchmarks to improve their careers provision. (5 January 2018)

DfE: Unlocking talent, fulfilling potential – A plan for improving social mobility through education: sets out the Government's national plan to support children and young people to reach their full potential, along with local opportunity area plans. It details how the Government will remove obstacles that could stop people from achieving their potential, based on five core ambitions. Four of these span across each life phase - the early years, school, post-16 education, and careers - and the fifth overarching ambition that focuses on delivering better educational and career outcomes more evenly across the whole country. (14 December 2017)

DfE: More help for vulnerable children to attend top boarding schools: announces the launch of the Boarding School Partnerships Information Service that gives more vulnerable children the chance to attend boarding schools. The service will link up local authorities with children’s charities and boarding schools so they can work together to identify more young people on the edge of care who can be put forward for bursaries and scholarships. (24 December 2017)

DfE: Department for Education single departmental plan: sets out the Department's objectives and how it will achieve them. Its overarching ambition is to focus on places and communities across the country that feel they have been ‘left behind’, because they have not yet seen the improvement that other parts of the country have already benefited from. (14 December 2017)

DfE: Insolvency regime for further education and sixth-form colleges: the Technical and Further Education Act 2017 sets out the framework for an insolvency regime which applies aspects of existing insolvency law to FE and sixth-form colleges in England and Wales. It also introduces a special administration regime designed to protect the interests of learners at an insolvent college. This consultation seeks views on the technical detail of the insolvency regime. It sets out proposals for how colleges in or at risk of insolvency will be dealt with in practice. It also outlines plans to further improve monitoring and support available to colleges in financial difficulty. The consultation closes on 12 February 2018. (18 December 2017)

Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (SI 2017/1306): these regulations amend SI 2014/1530 so as to extend the powers of the First-tier  Tribunal (Special Educational Needs and Disability) so that it may make non-binding recommendations in respect of certain types of health and social care needs and provision specified in Education, Health and Care (EHC) plans. These new powers only apply to appeals against certain decisions by a local authority made on or after 3 April 2018 or appeals relating to EHC plans issued or amended after 3 April 2018. (20 December 2017)

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

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Employment

LGA: Modern slavery – A council guide: this guide aims to increase local authorities' awareness of modern slavery and provide clarity on their role in tackling it. (21 December 2017)

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

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Elections

Local Government Elections (Referendum) Bill: this Private Member's Bill has been introduced into the Lords by Lord Balfe and received its 2nd Reading. The Bill contains one operative clause that would compel the Secretary of State to introduce a Bill to provide that local authorities in England must hold a referendum on introducing proportional representation for local government elections if certain conditions are met. These conditions are that there has been a petition to the Government or to the UK Parliament signed by at least 10 per cent of the electors in the local area, requesting a referendum; and that the local government body for that area has passed a resolution that a referendum should be held. (15 December 2017)

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

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Finance and Rating

DCLG: Provisional local government finance settlement – England, 2018 to 2019: the Government has confirmed the local government funding arrangements for 2018 to 2019. The trigger point for a Council Tax referendum has been raised from 2% to 3%; when the additional 3% adult social care "flexibility" is added on, this means that counties and unitaries can raise council tax by up to 5.99% before having to have a referendum. The Communities Secretary has also announced: 

  • 10 new areas have been selected for business rates retention pilots in the 2018 to 2019
  • local authorities will be able to retain 75% of business rates from 2020 to 2021 
  • there will not be any new changes to the New Homes Bonus in the forthcoming year 
  • there will be no referendum limit on the precepts that can be set by combined authority mayors 
  • the flexibility to use capital receipts to help meet the revenue costs of transformation will be extended for a further 3 years to April 2022.

In addition, the Home Secretary has announced that PCCs can raise precept contributions by up to £12 pa per household.
See also the LGA's On the Day briefing. (19 December 2017)

DCLG: Fair funding review – A review of relative needs and resources: Technical consultation on relative need: the fair funding review will set new baseline funding allocations for local authorities by delivering an up-to-date assessment of their relative needs and resources, using the best available evidence. DCLG is now seeking views on a wide range of options for developing an updated funding formula by looking again at the factors that drive costs for local authorities. The consultation focuses specifically on potential approaches that have been identified to measure the relative needs of local authorities. The closing date for comments is 12 March 2018. (19 December 2017)

DCLG: Business rates in multi-occupied properties – Consultation on reinstating the practice of the Valuation Office Agency prior to the decision of the Supreme Court in Woolway (VO) v Mazars [2015] UKSC 53: seeks views on a draft Non-Domestic Rating (Property in Common Occupation) Bill that would amend s.64 LGFA 1988 so as to reverse the impact of a recent Supreme Court judgment which resulted in businesses that operate in adjoining units or rooms, but are accessed from a common corridor or staircase, receiving separate rate bills for each unit – the so-called "staircase tax". The effect of the changes would be that those businesses who have been directly impacted by the Supreme Court judgment would be able to ask the VOA to recalculate valuations based on previous practice whereby businesses occupying two adjoining floors or two rooms separated by a wall only received a single business rates bill. The rates bill could then be recalculated and backdated. The consultation closes on 23 February 2018. (29 December 2017)

Welsh Government: Final Local Government Revenue and Capital Settlement 2018-19: set out details of the final distribution of public funds to Welsh local authorities. Overall core funding for local government in 2018-19 will increase by 0.2 per cent on a like-for-like basis compared to the current year. The funding includes a further £7m to support the increase to the capital limit for charging for residential care to £40,000 commencing from April 2018, and an additional £1.3m funding for local authorities to use their discretionary powers to provide targeted relief to support local businesses which would benefit most from additional assistance. (19 December 2017)

Welsh Government: Finance Secretary announces new permanent small business rate relief scheme for Wales: a new permanent small business rate relief scheme will be introduced in Wales from 1 April 2018 that will limit the number of properties eligible for small business rate relief to two per business in each local authority, preventing larger businesses and national chains from benefiting from the scheme. This will allow relief to be targeted more effectively to support small and local businesses and release £7m every year to be re-invested to support small businesses. (13 December 2017)

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

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Fire and Rescue Authorities

Home Office: A revised Fire and Rescue National Framework for England: seeks views on a draft revised Fire and Rescue National Framework for England that sets priorities and objectives for English FRAs in connection with the discharge of their functions. The changes are required to embed the fire reform programme and provisions in the Policing and Crime Act 2017. The consultation closes on 14 February 2018. (27 December 2017)

Home Office: Re-engagement of senior fire officers post-retirement – Response to government consultation: sets out the Government's response to the February consultation that sought views on proposed changes to the Fire and Rescue National Framework on the issue of senior fire officers retiring from post and subsequently being re-employed in the same or very similar roles. It states that, in light of the responses received, it has concluded that action should be taken to discourage the practice of FRAs re-engaging senior fire officers post-retirement. For simplicity, this change will be included as part of the full revision of the National Framework which is expected to come into force Spring 2018 (see above). Until the revised Framework comes into force, the Home Office expects FRAs to take this policy position into account if seeking to re-employ any retired fire personnel in the interim. (27 December 2017)

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

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Governance

Buckfastleigh Town Council: Town Council dissolve planning committee: a Devon town council has announced that it has dissolved its "clearly impotent" Planning, Environment & Transport Committee in order not to mislead the public and misdirect any concerns they have. The Council notes that in recent years its carefully considered and well-informed responses to planning applications to the local National Park Authority, district and county councils have been ignored by their planning authorities in reaching decisions and that "since the start of this council in May 2015, none of the responses submitted by the council in response to any major planning proposal in the parish has had an appreciable effect on the outcome". It notes that this has led to local people having a misplaced hope that bringing a case to the Planning Committee will make a difference to their case and to consequent blame when planning decisions go ahead regardless of their concerns. (14 December 2017)

LGA: Councillor workbook – Councillor / officer relations: this workbook for councillors takes a ‘broad principles’ look at councillor / officer relations rather than concentrating on the specifics as would be found in an individual council. It includes exercises for councillors to do with reference to the constitution or operating arrangements of their own council for the protocol on reporting arrangements or response times for responding to issues. The workbook forms an useful overview of members' conduct and the member / officer relationship. (12 December 2017)

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

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Government Policy

DCLG: Department for Communities and Local Government single departmental plan: sets out the Department's objectives and how they will achieve them. Their six objectives are: 

  • Fix the broken housing market 
  • Grow local economies 
  • Build integrated communities 
  • Support effective local government 
  • Ensure an effective response to the Grenfell Tower fire 
  • Support local government, local economies and the housing sector to get ready for EU Exit, so that the department can continue to deliver its policies.

(14 December 2017)

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

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Health and Safety

Whirlpool UK Appliances Ltd v R [2017] EWCA Crim 2186 (CA): WUKA appealed against a sentence of a £700,000 fine after it pleaded guilty to an offence contrary to s.3(1) of the Health and Safety at Work Act 1974. The case resulted from the death of a contractor, D, at one of WUKA's factories. D had been working on the fire and heat detector systems from a mobile elevated working platform which he had manoeuvred into position between hanging baskets on the overhead conveyor system. The overhead conveyor system was set in motion by a WUKA employee who was working elsewhere on the conveyor, causing the working platform to topple and D to fall. WUKA was a "very large organisation" for the purposes of the Guideline. The court considered three issues: (1) the impact of a death on the approach to the ranges set out in the Definitive Guideline on Corporate Manslaughter, Health and Safety and Food and Safety Hygiene Offences ("the Guideline"); (2) how one identifies and then treats a "very large organisation" for the purposes of the Guideline; and (3) the impact of relatively poor profitability in the context of an organisation with a substantial turnover.
The court held, allowing the appeal, that the sentence imposed by the judge was manifestly excessive. The circumstances of this case were unusual in flowing from an offence of low culpability and low likelihood of harm. Having regard to the underlying culpability, risk of harm, actual harm and turnover, a starting point of £450,000 at Step Three was sufficient to have a real economic impact which would bring home to the management and shareholders the need to comply with health and safety legislation but was also proportionate to WUKA's overall means. This was an organisation with an impeccable safety record which had done everything possible to make good the deficiencies exposed by these events. The court then reduced the fine by a third to reflect the guilty plea. It quashed the fine of £700,000 and substituted one of £300,000. (20 December 2017)

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

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Housing

LGSCO: Still no place like home? Councils’ continuing use of unsuitable bed and breakfast accommodation for families: this report shows that homelessness is increasingly affecting families from areas and professions who previously might never have expected to face problems finding somewhere to live. In 2016-17, one in three complaints received about homelessness services delivered by English authorities came from outside of London. Many of the complaints were from people who might never have anticipated being made homeless, but who had been forced to call on their local council’s help by the increasing unaffordability of private tenancies. The Ombudsman continues to see too many cases where councils are acting unlawfully by placing homeless households in bed and breakfast accommodation for lengthy periods of time, with families increasingly having to stay in conditions where damp or infestation is a problem, often affecting their physical and mental health. The report includes best practice guidance and offers councillors and scrutiny chairs a number of questions they can ask of their own authorities to ensure they challenge the number of families left in unsuitable accommodation for too long. (15 December 2017)

DCLG: Houses in Multiple Occupation and residential property licensing reforms – Government response: sets out the Government’s response to the October 2016 consultation on extending the mandatory licensing of houses in multiple occupation (HMOs) so that most HMOs, occupied by five or more people from two or more separate households, are subject to mandatory licensing. The proposals mean that councils will be able to take further action to crack down on unscrupulous landlords renting sub-standard and overcrowded homes. In addition, certain criminal offences will automatically ban someone from being a landlord so that someone convicted of offences such as burglary and stalking could be added to the database of rogue landlords and be barred from renting properties. This document states in light of responses to the consultation, the Government will lay the necessary secondary legislation in Parliament and, subject to Parliamentary approval, bring the changes into force in 2018. (28 December 2017)

Secure Tenancies (Victims of Domestic Abuse) Bill: this Bill has been introduced into the Lords and received its 1st Reading. It contains measures to ensure that lifetime tenants of social homes who need to leave or have left their home to escape domestic abuse are granted a further lifetime tenancy in their new home where they are being re-housed by a local authority.
DCLG has published an impact assessment that provides a summary of the costs and benefits of the Bill. DCLG expects that any potential disadvantages for local authority landlords will be outweighed by the positive benefits for victims of domestic abuse and their dependants who may otherwise feel constrained to remain with the perpetrator for fear that they might lose their security of tenure. Any potential cost implications are likely to be very small, given the limited number of lettings affected, and would be expected to be outweighed by the positive benefits for victims of domestic abuse and their dependants. (19 December 2017)

NHS Confederation: Innovation in housing, care and support: this briefing, produced in partnership with Mental Health Network members, contains four case studies on innovative support and care services delivered through collaborations between housing and healthcare providers. (15 December 2017)

Cabinet Office: Government awards councils new funding to transform local communities: announces that 56 council-led partnerships will receive £8.7m funding to improve public services, stimulate economic growth and free up land for thousands of new homes. This new funding has been allocated from the One Public Estate (OPE) programme, a partnership between the Cabinet Office and the LGA. (11 December 2017)

BBC: Grenfell firm to pass responsibility for homes to council: reports that Kensington & Chelsea Tenant Management Organisation (TMO) has said it will "temporarily" hand back control to Kensington & Chelsea RLBC while it while it consults on the future management of its housing stock. (27 December 2017)

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

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Judicial Review

Cherwell DC v Oxfordshire CCG; Keep the Horton General (Interested Party) [2017] EWHC 3349 (Admin) (Admin Ct): the High Court has dismissed the Council's application for judicial review of the CCG's decision to downgrade inpatient services at a hospital in its area. The decision followed a consultation on proposals that included closing the obstetric unit and discontinuing emergency gynaecological services. The council contended that the consultation was unfair and so unlawful. The court dismissed all the Council's arguments. No one reading the document could have been in the slightest doubt as to the scope and impact of the proposals. Any flaws in the consultation were not sufficiently serious to justify a finding that the consultation was unfair. (21 December 2017)

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

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Overview and Scrutiny

HC Communities and Local Government Committee: Effectiveness of local authority overview and scrutiny committees: this inquiry was set up in light of concerns by councils that have reverted to the committee system about the limited effectiveness of scrutiny. The Committee focused on factors such as the ability of committees to hold decision-makers to account, the impact of party politics on scrutiny, resourcing of committees and the ability of council scrutiny committees to have oversight of services delivered by external organisations. It found that that scrutiny is often not held in high enough esteem, leading to a lack of constructive challenge to improve services for residents, and that scrutiny in mayoral combined authorities is hindered by limited resources. It concludes that the Government must encourage a culture change at local authorities to ensure that overview and scrutiny is truly independent of the executive and can properly contribute to improving services for taxpayers. The Committee recommends measures to strengthen the independence of overview and scrutiny committees and for increased scrutiny of combined authorities, Local Economic Partnerships and arm’s length bodies. It argues that when agreeing further devolution deals and creating executive mayors, the Government must make it clear that scrutiny is a fundamental part of any deal and must be adequately resourced and supported. (15 December 2017)

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

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Planning Procedure

DCLG: Basements developments and the planning system call for evidence – Summary of responses: in November 2017 DCLG issued a call for evidence on where basement developments have taken place, how they are currently dealt with through the planning system; and whether the planning process could further mitigate any adverse impacts of such developments. This summary of responses highlights a number of concerns about the impact of basement developments in certain areas that the Call for Evidence has raised. The consultation has also provided examples of existing and emerging good practice by local authorities in using the existing tools available to them in the planning system to mitigate these local impacts, both before development has started and once it is underway, such as the introduction of local plan policies and Article 4 directions to control basement development. It suggests that local planning authorities whose areas are affected by basement developments may wish to consider similar approaches. (19 December 2017)

Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2017 (SI 2017/1244): these regulations, which come into force on 6 April 2018, amend SI 2012/767 in consequence of changes introduced by the Neighbourhood Planning Act 2017. They prescribe the time period for review of certain local development documents and make consequential amendments to the 2012 Regulations as a result of changes introduced by ss.9 and 10 of the 2017 Act. They also amend the 2012 Regulations to remove the requirement for development plan documents submitted to the Secretary of State under s.20 of the Planning and Compulsory Purchase Act 2004 to be submitted both in paper form and electronically. (13 December 2017)

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

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Procurement

CCS: Procurement Policy Note 04/17 New threshold levels 2018: this PPN sets out the new threshold levels to apply for the purposes of the Public Contracts Regulations, from 1 January 2018. For a short summary of the main thresholds, see our Alert: EU procurement thresholds for the public sector. (22 December 2017)

CCS: Procurement Policy Note 03/17 Changes to data protection pegislation & General Data Protection Regulation: this PPN explains how government buyers should bring existing and future commercial arrangements concerning data processing into line with new Data Protection Legislation.
We have published a brief summary of this PPN. (19 December 2017)

CCS: Procurement Policy Note 02/17 Promoting greater transparency: this PPN provides updated guidance on transparency and the publication of tender and contract documents. It applies to applies to Central Government, Agencies, Non Departmental Public Bodies, wider public sector, local authorities and NHS bodies. (13 December 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 England: Approach to surveillance: this guide focuses on the need for high quality evidence from PHE's surveillance systems to ensure that it has the right information available at the right time to inform public health decisions and actions. It sets out how strategies can be developed for surveillance of both infectious and non-communicable diseases. (13 December 2017)

LGA: Making obesity everybody’s business – A whole systems approach to obesity: this briefing, written in partnership with PHE and ADPH, focuses on the Whole Systems Obesity programme, which will provide local authorities with a different approach to tackling obesity. The programme is exploring the evidence and local practice to develop guidance and tools to help councils set up a whole systems approach to obesity in their local area. This involves the whole local system of stakeholders, recognising that it is a problem that goes far beyond public health. (13 December 2017)

DH: Public health grants to local authorities 2018 to 2019: sets out the public health allocations to local authorities for improving local population health in 2018/19 and the conditions for using the money. Local authorities will receive £3.215bn public health grant for their public health duties for all ages in this financial year; it also includes a list of indicative public health allocations for the year 2019 to 2020. The local authorities in Greater Manchester piloting the business rates retention will not receive grant from the government and are therefore not governed by the grant conditions. (21 December 2017)

R (Black) v Secretary of State for Justice [2017] UKSC 81 (Sup Ct): the issue in this case was whether the Crown is bound by the smoking ban contained in Chapter 1 of Part 1 of the Health Act 2006. B was detained in a state-run prison. He suffered from a number of health problems which were exacerbated by tobacco smoke. He asserted that the smoking ban was not being enforced properly in common parts of the prison, but the Secretary of State refused his request for the National Health Service Smoke-free Compliance Line to be put on the prison phone system, to enable prisoners to report breaches of the smoking ban to the local authorities charged with enforcing it. B successfully applied for judicial review of that decision, but the Court of Appeal reversed that decision, finding that the Act did not bind the Crown. There was no dispute that a smoking ban was in place in the prison, but the issue was whether the prison was bound by Chapter 1 of Part 1 of the Health Act 2006 so that the ban was backed up by criminal sanctions and other enforcement measures.
The court held, dismissing B's appeal, that there was a presumption that Acts of Parliament only bind the Crown by express words or necessary implication. There were powerful indicators in the language of the Act itself that the Crown was not to be bound by the smoking ban: first and foremost, it did not expressly say so, which would have been easy enough so to do; and secondly, in Acts with comparable structures and enforcement powers, there were provisions dealing expressly with exactly how and to what extent the Act was to apply to the Crown. (19 December 2017)

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

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Regulatory Services

DCLG: Independent Review of Building Regulations and Fire Safety – Interim report: Dame Judith Hackitt is leading a review of the building and fire safety regulatory system that focuses on high-rise residential buildings. Its purpose is to make recommendations that will ensure the regulatory system is sufficiently robust for the future and to provide further assurance to residents that the complete system is working to ensure the buildings they live in are safe and remain so. This interim report finds that the regulatory system for safely designing, constructing and managing buildings is not fit for purpose. The current system is highly complex and there is confusion about the roles and responsibilities at each stage, while in many areas there is a lack of competence and accreditation. Dame Judith calls for the construction industry, building owners, regulators and government to come together to identify how to overcome these shortcomings together. The final report is expected to be submitted in Spring 2018. (18 December 2017)

DEFRA: Noise nuisances – How councils deal with complaints: updated guidance on local authorities' duty to  look into complaints about noise that could be a ‘statutory nuisance’ under the Environmental Protection Act 1990. The section on 'Noise at night: warning notices' has been revised to make clear that local authorities can investigate complaints of statutory nuisance produced at any time of day or night. (21 December 2017)

Brentwood BC: Planning company fined for wilfully obstructing council officers: reports that Colchester Magistrates' Court has fined a planning company and its principal director a total of £6,202 for aiding, abetting, counselling or procuring another to wilfully obstruct officers in the course of their work. The company's employee was also fined £2,114, while its client was found guilty of wilfully obstructing an officer and was fined £500 with a £50 victim surcharge and £135 costs. The magistrates were satisfied that at all times the council officers were properly acting in the exercise of a lawful right of entry, and they found that the planning company's employee was not a credible witness, as his version of events was wholly at odds with the clear evidence of the local authority officers. (8 December 2017)

Short and Holiday-Let Accommodation (Notification of Local Authorities) Bill: this Private Member's Bill has been introduced into the Commons by Karen Buck MP and received its 1st Reading. The Bill would require householders to notify local authorities of an intention to register accommodation for short or holiday lets. It aims to deal with problems caused by the rapid growth, especially in London, of the nightly let sector, such as noise, rubbish, security fears, antisocial behaviour, breaches of leasehold in blocks of flats and the undermining of insurance. It also aims to manage the wider impact, including the loss of much-needed residential accommodation. (13 December 2017)

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

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Standards

Committee on Standards in Public Life: Intimidation in public life – A review: the independent Committee has made a package of recommendations to address the threats and intimidation experienced by Parliamentary candidates and others. It finds that a significant proportion of candidates at the 2017 General Election experienced harassment, abuse and intimidation, with persistent, vile and shocking abuse, threatened violence including sexual violence, and damage to property. The widespread use of social media platforms was the most significant factor driving this behaviour. The Committee proposes that the Government should bring forward legislative changes on social media companies’ liability for illegal content online, and an electoral offence of intimidating Parliamentary candidates and party campaigners. Political parties must also put in place measures for more effective joint working to combat intimidation in advance of the next General Election. (13 December 2017)

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

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Tortious Liability

Cook v Swansea City Council [2017] EWCA Civ 2142 (CA): C, aged 78, claimed damages in negligence and/or breach of duty under the Occupiers' Liability Act 1957 for injuries sustained when he slipped and fell on ice in a pay and display car park owned and operated by the Council. The judge found that the Council operated a reactive system of gritting in its unmanned car parks, whereby it only gritted them when a member of the public reported a dangerous area. He identified the two key questions before him as being: whether a reactive system was sufficient to discharge the burden imposed by s.2 of the 1957 Act; and if not, whether C had proved that it was more likely than not that a system which required reporting by cashiers and wardens would have prevented his accident. He ruled that a reactive system was the only proportionate and reasonable way of dealing with the problem of ice in car parks, save on those rare occasions of heavy snow fall which were exceptional  and called for different decisions. He dismissed C's claim, holding that by adopting a reactive system the Council had discharged the common law duty to take such care as in all the circumstances of the case was reasonable, to see that C would be reasonably safe in using the car park. He accepted that the Council could have issued instructions to cashiers and wardens, but such instructions would have been part of a reactive system and there was no evidence that such instructions would have prevented C's accident. C appealed, contending that the judge: had erred in failing to make a clear and explicit finding of breach of duty under s.2(2); had erred in law in his approach to the question of causation; and had failed to accord sufficient weight or to consider adequately evidence before him establishing causation.
The court held, dismissing C's appeal, that it was reasonably plain from the judgment itself and its context that the judge was finding that there was no breach of duty. As to whether he was wrong so to find, C did not challenge that conclusion by reference to the evidence but only by reference to the judge's as to the reporting system which "could" have been in place. Those findings as to what "could" have been done on a "prima facie" basis could not properly found, still less require, a finding of breach of duty. Looking at the balancing exercise set out by Lord Hoffman in Tomlinson v Congleton BC [2004] UKHL 47, there were compelling reasons for upholding the judge's decision that there was no breach of duty, an assessment that he was in any event best placed to make as the trial judge. The court rejected C's argument that there was an evidential burden on the Council to establish that the accident would have occurred in any event, distinguishing Ward v Tesco Stores Ltd [1976] 1 WLR 810. (19 December 2017)

CN v Poole BC [2017] EWCA Civ 2185 (CA): CN suffered from severe physical and learning difficulties, and was a child "in need" within s.17 of the Children Act 1989. He brought a claim in negligence against the Council, claiming that it had breached its duty of care to children by failing to protect him and his family from persistent harassment and abuse by neighbours. CN argued that the Council's failure to remove him from their accommodation breached: its duty under s.17 to safeguard and promote the welfare of children within their area who were in need; the power under s.20 of the 1989 Act to provide accommodation for a child, if the local authority considered such provisions "would safeguard and promote the child's welfare"; and the obligation under s.47 of the 1989 Act to inquire as to whether action should be taken, if the local authority had reasonable cause to suspect that a child was suffering, or was likely to suffer, significant harm. The claim was struck out at first instance but reinstated on appeal.
The court held, dismissing the claim, that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act 1989. The Council when exercising its functions under the 1989 Act was not responsible for housing CN in proximity to those who behaved in an anti-social fashion. The claim was not based on the Council's functions as a housing authority - that would be bound to fail as there was no prospect of common law liability from such a route. This case illustrated perfectly why it was unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the arm's length housing provider and the police) were at least as involved and arguably more centrally involved in the relevant problem. It would not be just for there to be liability to a claim for damages through alleged omission on the part of social workers here, when those responsible for housing had no potential liability. On the pleaded facts, the case did not fulfil any of the established exceptions in common law to the general rule that a defendant was not liable for the wrongdoing of a third party. (21 December 2017)

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

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