Authority Update 2/2/18

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

02/02/2018

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 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     Highways
    Children's Services     Housing
    Council Tax     Infrastructure and PFI
    Development Control     Public Health
    Economic Development     Regulatory Services
    Education     Standards
    Governance     Transport
    Health and Social Care  

Adult Social Services

DHSC: charging for care and support LAC(DHSC)(2018)1: this Local Authority Circular advises local authorities of the social care charging arrangements for 2018 to 2019: (30 January 2018)

LGSCO: Council wrongly decides elderly woman had spent her money to avoid paying care fees: the Local Government and Social Care Ombudsman has recommended that a council reassess an elderly woman’s finances and repay her any money she should have been entitled to had it made the correct decision about her status when it first assessed her. The council had assessed the woman and said it was appropriate for her to stay in her care home, and agreed to pay the full care costs. However, when it carried out a review of the woman’s finances, it decided she had deliberately reduced her money - 'deprivation of assets'. It  then terminated the contract with the care home and stopped making payments. The Ombudsman found that the council did not complete a full financial assessment and instead decided all the money the woman had gifted had been capital. The council did not provide any evidence to show how it considered the gifts were made with the intention of avoiding care charges. The woman had paid the full amount of her care for nine years and more than 70 per cent of her money had been spent on care home fees. The Ombudsman also recommended that the council apologise to the woman’s daughter for its failures, and pay her £250 to recognise the distress caused. (1 February 2018)

LGSCO: Clarity for councils about way Ombudsman will investigate financial assessment complaints: the Local Government and Social Care Ombudsman has confirmed that councils cannot take personal injury awards into account when carrying out financial assessments for social care packages, following the High Court's decision in R (ZYN) v Walsall MBC [2014] EWHC 1918 (Admin). This follows an investigation into Wokingham BC, where the LGSCO upheld a complaint that the Council had failed to assess Ms K’s daughter’s finances properly by failing to disregard the daughter’s personal injury payment. (24 January 2018)

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

^back to top

Children's Services

DfE: Statutory directions to children's services authorities: the Secretary of State has issued revised Directions to Kirklees MBC, Barnet LBC and Croydon LBC, requiring each council to continue to take steps to improve its children’s social care services. These include working with the DfE-appointed Children’s Services Commissioner or Advisers.
The Secretary of State has also lifted the Directions to Somerset CC and to Cumbria CC after new inspections resulted in the overall ratings improving from Inadequate to Requires Improvement. (25 January 2018)

LGA: Delivering children's centre services: these case studies illustrate how children's centres allow families to access the help they need to handle those early challenges, help to tackle inequalities, and give children a healthy start. They highlight how councils are still finding ways to make a huge impact on people’s lives despite budget cuts and increasing demand. (24 January 2018)

DfE: Opportunity areas – S31 grant determination and letters: the opportunity areas programme aims to improve the social mobility outcomes of children and young people in 12 deprived areas of the country. These letters set out the details of the funding payments in the year 2017 to 2018. They include supporting guidance outlining how local authorities are intended to use the funding. (26 January 2018)

T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC B1 (Fam Ct): the local authority applied for a final care order in respect of a 13-year-old boy, T, who had been diagnosed with autistic spectrum disorder and severe learning disability. He displayed extremely challenging behaviour and resided in a specialist residential unit under an interim care order. It was agreed that the circumstances in which T lived amounted to a deprivation of his liberty. The issues were: whether T was "beyond parental control" for the purposes of s.31(2)(b)(ii) of the Children Act 1989; whether a care order should be made; where T should reside; and whether, as recommended by a psychiatrist at X, Risperidone (an anti-psychotic) and Melatonin (a sleep aid) should be administered to T.
The court ruled that the local authority did need authorisation from the court to administer these medications, as this involved an interference with T's mother's art.8 rights. The court held that it was lawful for the local authority to deprive T of his liberty at the unit but the court limited that authorisation to a period of six months. (5 January 2018)

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

^back to top

Council Tax

MHCLG: The Government response to an Independent Review of Local Council Tax Support Schemes: response to the recommendations of Eric Ollerenshaw's independent review into local Council Tax Support (LCTS) schemes that was published in April 2016. The review found that local government had effectively implemented the LCTS schemes but there remained some barriers which prevented schemes from fully meeting Government policy objectives. The report made a number of recommendations to correct these and the response comments on each one. It includes acceptance of the review's recommendation to remove the annual 31 January deadline for the agreement of schemes – this has now been changed to 11 March. (25 January 2018)

R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) (Admin Ct): the court dismissed W's application for a declaration that enforcement of liability for unpaid council tax by way of imprisonment was systemically unfair and unlawful because magistrates frequently failed to apply the clear and well-established law relating to applications to commit. W accepted that the council tax enforcement scheme set out in the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012 (SI 2012/2885) was fair and lawful but contended that magistrates ignored a clear and well-established element of that scheme, namely the requirement that the length of any suspended committal order was fair and proportionate. The court ruled that the risk of unfairness did not arise out of the systemic procedures themselves, but rather in the ordinary course of individual decision-making in that magistrates simply failed to comply with the requirements of the scheme. W had failed to prove that there was anything inherent in the system of enforcement of council tax liability that meant that the system (or any part of it) was unlawful as giving rise to an unacceptable risk of procedural unfairness. (17 January 2018)

Council Tax and Non-Domestic Rating (Demand Notices) (England) (Amendment) Regulations 2018 (SI 2018/92): these regulations, which come into force on 28 February 2018 amend 2003/2613 so as to update the explanatory notes which must be published on an authority’s website in relation to non-domestic rating demand notices. (24 January 2018)

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

^back to top

Development Control

LGA: Call for crackdown on 'trojan' telephone boxes amid 900 per cent rise in some areas: the LGA is calling for the Government to scrap the permitted development right which enables companies to install telephone boxes without planning permission. Councils say that telephone boxes are being increasingly used as advertising boards, rather than for their original purpose of being a place to make a phone call, and are becoming an “eyesore” to residents. (27 January 2018)

MHCLG: Improving the use of planning conditions: seeks views on draft Town and Country Planning (Pre-commencement Conditions) Regulations 2018 that would create an exemption to the requirement in the Neighbourhood Planning Act 2017 that local planning authorities obtain the written agreement of an applicant before imposing a pre-commencement condition on a grant of planning permission. The consultation closes on 27 February 2018. (30 January 2018)

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

^back to top

Economic Development

Centre for London: Next-door Neighbours – Collaborative working across the London boundary: this report explores the need for greater collaboration across London and the Wider South East to tackle shared challenges. It looks at how the economies and populations of London, the South East and East of England  are highly integrated and interdependent. It argues that the City and local government in London and beyond must collaborate if they are to plan successfully for growth and maintain the economic success they all share in, whilst also protecting their own distinct identities. (24 January 2018)

DfE: New project to boost diversity in apprenticeships: announces that five English cities have pledged to work with the Government to drive up apprenticeships among underrepresented groups and ensure they are accessible to individuals from all backgrounds. The Mayors in each city will lead co-ordinated activity with local partners and the National Apprenticeship Service to help break down barriers and support black, Asian and minority ethnic individuals to apply for apprenticeships. (1 February 2018)

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

^back to top

Education

DfE: Schools causing concern – Guidance for local authorities and Regional Schools Commissioners on how to work with schools to support improvements to educational performance, and on using their intervention powers: statutory guidance issued under s.72 of the Education and Inspections Act 2006 on local authorities' and regional schools commissioners' responsibilities relating to schools and PRUs causing concern. It sets out the factors that local authorities and RSCs will consider, and the process they will follow in order to decide the right approach to supporting a school to improve. (25 January 2018)

DfE: Education Minister unveils new support for schools: announces a new service offering advice to schools on how to get the best value for money when buying support from businesses. The new scheme, which is being trialled initially in the North West and South West, will provide free advice and guidance to schools looking to procure services from local or national businesses, such as catering, cleaning or technology support. (1 February 2018)

DfE: Golden Hello – Proposed end date for claims: seeks views on a proposal to confirm an end date of 31 August 2019 for eligible teachers to make Golden Hello claims to academies or LEAs in England. The introduction of the proposed end date would mean that only those teachers who started eligible postgraduate Initial Teacher Training courses between 1 August 2000 and 31 July 2011, and who complete their NQT induction year prior to the proposed end date of 31 August 2019, would be eligible to claim. The DfE's analysis of historical claims suggests that the vast majority of eligible teachers have already successfully claimed the relevant payment, and those that may still be eligible would have reasonable opportunity to ensure eligibility and submit their claim before the proposed end date. The consultation closes on 8 March 2018. (25 January 2018)

School Holidays (Meals and Activities) Bill:  this Private Member's Bill has been introduced into the Commons by Frank Field MP and receive its 2nd Reading. The Bill would require local authorities to facilitate the delivery of programmes that provide free meals and activities for children during school holidays. (19 January 2018)

DfE: Searching, screening and confiscation: advice for headteachers, school staff and governing bodies explaining schools' powers to screen and search pupils, and to confiscate items they find. (18 January 2018)

CB v Birmingham City Council (SEN) (Special educational needs - other) [2018] UKUT 13 (AAC): the Upper Tribunal dismissed the claimant's (CB's) appeal against the First Tier Tribunal's ruling that upheld the Council's decision not to make an Education Health and Care Plan (EHC plan) for CB’s 10 year old daughter D. CB had argued that D’s special educational needs (SEN) could only be met within a maintained mainstream school with additional resources being provided and therefore an EHC plan was necessary. The UT held that the tribunal had not erred in law in finding that an EHC Plan was not necessary. The UT discussed the meaning of "necessary"  in s.37 of the Children and Families Act 2014 and considered case law on the meaning of that word under the Education Act 1996. (11 January 2018)

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

^back to top

Governance

MHCLG: Local Enterprise Partnership governance and transparency – Best practice guidance: Mary Ney's 2017 review looked at how LEPs could fully implement existing requirements for appropriate governance and transparency. The Government has accepted the review recommendations in full and is taking a number of steps to implement them. This Best Practice Guidance contains examples of good practice and specific standards and guidance on the following corporate governance issues: codes of conduct; publication of meeting and agendas; confidential reporting procedures for third parties and the public; whistleblowing policies; and registers of interests. LEPs must promptly implement the  guidance on necessary standards and policies; they should also review the examples provided in this document and ensure their local policies and procedures reflect this best practice. (24 January 2018)

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

^back to top

Health and Social Care

LGCSO: Funded Nursing Care payments: guidance for care providers to help them provide clearer cost information in their contracts for service users. It follows from a rise in complaints to the Ombudsman from self-funders about FNCs. The Ombudsman is sharing the learning from these cases to help care providers respond to complaints about FNCs, and to understand the approach it will take to any complaints in this area. (1 February 2018)

LGA: Meeting the health and wellbeing needs of young carers: the Children and Families Act 2014 and the Care Act 2014 place a legal duty on local authorities to identify young carers and carry out both a needs assessment and a transition assessment to consider the impact on the child and whole family. These case studies from the LGA highlight the good work being done by councils to minimise the impact of young carers' responsibilities. (25 January 2018)

House of Commons Library: Social care – The forthcoming Green Paper on older people (England): this briefing paper provides background information on the forthcoming Green Paper for social care for older people. It outlines the key confirmed contents of the Green Paper and discusses how the Green Paper will work alongside a separate parallel programme on the social care needs of working age adults. (26 January 2018)

King's Fund: Reimagining community services – Making the most of our assets: this report looks at the current organisation of community health services and considers how the health and social care system needs to change to meet the needs of populations now and in the future. It covers services commissioned by
local authorities as well as the NHS, and also related services delivered by the third sector, the private sector, carers and families. It finds that the most promising possibilities in the short term are through sustainability and transformation partnerships and accountable care systems, where plans have already been developed to strengthen community services and improve population health. More work is needed to ensure that all STPs offer a credible basis for improving care for their populations and strengthening services in the community, drawing on the design principles set out in this report. (23 January 2018)

HC Communities and Local Government Committee: Joint inquiry launched on long-term funding of adult social care: announces that the CLG and Health Committees have launched a joint inquiry on the long-term funding and provision of adult social care to feed in to the Government's forthcoming Green Paper. The inquiry seeks to identify funding reforms that will command broad consensus to allow progress in ensuring the long-term sustainability of both the health and care systems. The Committees are inviting written submissions on: How to fund social care sustainably for the long term (beyond 2020), bearing in mind in particular the interdependence of the health and social care systems; and The mechanism for reaching political and public consensus on a solution. The deadline for submissions is 7 March 2018. (24 January 2018)

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

^back to top

Highways

LGA: Government's national roads receiving 52 times more funding than councils' local roads: calls for the Government to tackle the current disparity in the maintenance funding it provides for national and local roads, so that councils can tackle the £12bn repair bill to bring local roads up to scratch. The LGA's new analysis reveals that the Government plans to spend £1.1m per mile to maintain its strategic road network between 2015 and 2020, compared with just £21,000 per mile to councils for the local roads they maintain over the same period. They are asking the Government to deliver a radical new strategy to provide a fully-funded plan for the growing number of vehicles on the nation’s roads. This should include reinvesting 2p per litre of existing fuel duty into local road maintenance, which would generate £1bn a year for councils to spend on improving roads and filling potholes. (25 January 2018)

Hackney LBC: City fringe ultra low emission streets: the Council is seeking to create two time-restricted pedestrian and cycle zones in Shoreditch that will permit access to ultra low emission vehicles (ULEV), cyclists and permit holders only during specified during the peak commuter periods. The consultation closes on 14 February 2018. (17 January 2018)
https://consultation.hackney.gov.uk/streetscene/city-fringe-ultra-low-emission-streets-1/

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

^back to top

Housing

Abolition of the Right to Buy and Associated Rights (Wales) Act 2018: this Welsh Assembly Act has received Royal Assent. It provides for the Right to Buy and Right to Acquire to end for ‘new homes’ on 24 March 2018. A ‘new home’ is one which has not been let as social housing for the six months before that date. For existing social housing stock, final abolition will take place on 26 January 2019. The Welsh Government says that the aim of the legislation is to give social landlords more confidence to invest in new housing, by removing the risk of these homes being sold after only a few years.
See also the Act's Commencement and Saving Provisions Order 2018 (SI 2018/100 (W.24) (C.12)) which appoints 26 January 2019 for the coming into force of ss.6 & 7 of the Act which abolish the right to buy and the right to acquire, and remove the power to make grants in respect of discounts on disposals otherwise than in pursuance of the right to acquire. It also contains savings provisions which ensure that the legislation in force on 25 January 2019 will continue to apply to sales made under the right to buy and the right to acquire, so that that existing duties, e.g. to repay discount upon resale within five years, will continue to apply. (24 January 2018)

HC Treasury Committee: Autumn Budget 2017: this report examines how the Autumn Budget addressed two persistent concerns about the UK economy: low productivity growth and insufficient housing supply. On housing, it finds that the decision in the Budget to raise the Housing Revenue Account borrowing cap by £1bn was a positive step. However, local authorities are limited in how much they can build through the cap on borrowing within local authority HRAs. In the Autumn Budget 2017, the Government raised the borrowing cap for councils in areas of high affordability by £1b to help achieve its target of 300,000 new homes per year. Private housebuilders have consistently provided 150,000 units per year, so the target is unlikely to be met without a significant increase in supply by local authorities. To achieve this, the HRA borrowing cap should be removed. At the very least, the Treasury should define the allocation criteria for the additional £1bn more clearly. (22 January 2018)

CIH: More than 150,000 homes for social rent lost in just five years, new analysis reveals: analysis of figures from MHCLG and Homes England show that 103,642 local authority homes and 46,972 housing association homes for social rent were lost between 2012 and 2017. Most of the losses were down to homes being converted to 'affordable rent' or being sold through the right to buy scheme, while some were demolished. The CIH is calling for Government to take an urgent look at shifting funding from the private market towards genuinely affordable housing. In addition, it argues that local authorities should be able to keep 100% of the money they receive from Right to Buy sales to help them build more homes to replace those sold. (31 January 2018)

MHCLG: £866 million investment to help unlock potential 200,000 new homes: announces that 133 council-led projects across the country have been awarded funding from the Housing infrastructure Fund to support local work that will make housing developments viable and get much-needed homes built more quickly. (1 February 2018)

MHCLG: Housing funding boost to make more homes accessible for elderly and disabled people across England: announces an additional £42m funding for the Disabled Facilities Grant to enable local housing authorities to make a range of adaptations to a disabled or elderly person’s home. (24 January 2018)

MHCLG: Letter to residents following the Grenfell Tower fire: updates residents on the action being taken by the Government in response to the tragedy, and details of available support and assistance. It focuses on the recommendations of Dame Judith Hackitt's review. (25 January 2018)

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

^back to top

Infrastructure and PFI

House of Commons Library: The collapse of Carillion: this research briefing looks at the causes and consequences of Carillion's collapse. It includes a section on public sector contracts. The Library will be updating it to cover more topics. (23 January 2018)

Smith Institute: Out of contract – Time to move on from the 'love in' with outsourcing and PFI: the policy think tank the Smith Institute has published a report which urges the Government to end its 'love in' with outsourcing work to private firms amid claims of 'deep flaws' in many deals. The report says outsourcing contracts were poor value for money, carried huge social costs and often benefited overseas shareholders of multinational companies. In the wake of the collapse of construction giant Carillion, public delivery of services should be the 'norm'. It calls for a comprehensive examination and audit of all outsources and PFI deals. (23 January 2018)

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

^back to top

Public Health

PHE: Healthy High Streets – Good place making in an urban setting: this review provides a rapid assessment of evidence relating to pedestrian friendly, healthy high streets in urban settings, with specific reference to design interventions and street furniture. The review illustrates how, across a broad range of local stakeholders, a greater understanding of how place and people interact could help realise the potential of our high streets, and contribute to health and economic gains of our local communities. (17 January 2018)

LGA: The standards for employers of public health teams in England: the LGA has published a set of standards to help ensure that the public health workforce is fit to practise. The Employer Standards are relevant to employers and workers with a role in the commissioning or delivery of public health functions. They set out clear expectations of good employers who want to enable all their staff, employed in the delivery of public health functions, to work effectively. (25 January 2018)

DHSC: Local authority public health prescribed activity – Call for evidence: seeks information about experience, case studies or research on the prescribing in regulations of local authority public health activity. It states that the Government remains committed to the primary legislative framework for public health which was established in 2012, and the existing regulations remain in force. However, the Government recognises that it is timely to take stock of the regulations to ensure the system is working as it should be and is fit for the future. The closing date for submissions is 17 April 2018. (23 January 2018)  

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

^back to top

Regulatory Services

Home Office: Guidance for licensing authorities to prevent illegal working in the taxi and private hire car sector: updated guidance for licensing authorities on how to check the immigration status of people who apply for a taxi or private hire licence. New provisions in the Immigration Act 2016 mean that driver and operator licences must not be issued to people who are illegally present in the UK, who are not permitted to work, or who are permitted to work but are subject to a condition that prohibits them from holding such a licence. Licensing authorities must discharge this duty by requiring the applicant to submit one of a number of prescribed documents which show that the applicant has permission to be in the UK and undertake work as an operator or a private hire or taxi driver. (22 January 2018)

House of Commons Library: Parking policy in England: this research briefing summarises parking policy in England. It includes a section on civil parking enforcement on public highways, which gives a useful overview of local authority enforcement. It covers such topics as: legislation and guidance; the 10 minute grace period; right to challenge parking policies; parking appeals; and what parking revenue can be spent on. (22 January 2018)

HSE: Lewisham council fined after failing to control risk: reports that Southwark Crown Court has fined Lewisham LBC £150,000 with £65,000 costs after the Council pleaded guilty to breaching s.3(1) of the Health and Safety at Work, etc Act 1974. The prosecution arose after an incident at a council service centre when a visitor fell into a vehicle inspection pit and struck her head while work was being undertaken at the site. The Council had failed to heed their own independent health and safety consultant’s findings from two sets of risk assessments that recommended guarding around or over the open pits. (11 January 2018)

HSE: Bridgend County Borough Council to face prosecution following death of school pupil: reports that the Council is to be prosecuted following the death of a 15 year old pupil who was involved in a collision with a minibus on the school grounds. He suffered multiple injuries and was pronounced dead at the scene. The council will be charged with breaching s.3(1) of the Health and Safety at Work, etc Act 1974. (15 January 2018)

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

^back to top

Standards

CSPL: Local government ethical standards – Stakeholder consultation: the Committee on Standards in Public Life has announced a review of local government ethical standards that will assess whether the existing structures, processes and practices are conducive to high standards of conduct in local government and make any recommendations for how they can be improved. It will also note any evidence of intimidation of councillors, and make recommendations for any measures that could be put in place to prevent and address such intimidation. The review will consider all levels of local government in England, including town and parish councils, principal authorities, combined authorities and the GLA (including the Mayor of London). The closing date for submissions is 18 May 2018. (29 January 2018)

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

^back to top

Transport

Draft Enhanced Partnership Plans and Schemes (Objections) Regulations 2018: the Bus Services Act 2017 inserted new ss.138A to 138S into the Transport Act 2000 to enable local transport authorities to work with operators to provide better local bus services for passengers through enhanced partnership plans and schemes. A key aim of these provisions is to ensure that the arrangements are mutually acceptable to the parties to a scheme and to balance the right of local transport authorities to bring forward proposals for enhanced partnership plans and schemes against the right for operators to object to what is being proposed. An enhanced partnership plan or scheme can only progress if at certain stages a sufficient number of operators of qualifying local services do not object. These draft regulations, which are scheduled to come into force on 6 April 2018, specify how the objections mechanism works. (17 January 2018)

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

^back to top

Related Insights

Waste Watch - March 2018

by Nadeem Arshad

Brief details of recent legal and policy developments in England and Wales relevant to those interested in municipal waste...

Waste Watch - February 2018

by Nadeem Arshad

Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in...

Keep up to date With Bevan Brittan

What interests you?

About you?

You can view our privacy policy here