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: 

   Access to Information     Governance
   Adult Social Services     Housing
   Children's Services     Judicial Review 
   Combined Authorities     Local Land Charges
   Communities     Planning
   Education     Ports and Harbours
   Employment     Regulatory Services
   Environmental Protection     Scrutiny and Audit
   Finance     Structural Reorganisation
   Fire and Rescue Authorities  

Access to Information

ICO: The data protection fee – A guide for controllers: guidance on a new charging structure for data controllers that comes into effect on 25 May 2018. It explains why there’s a new funding model and what data controllers will be required to pay. See also the draft Data Protection (Charges and Information) Regulations 2018. (22 February 2018)

Gillingham v Information Commissioner (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017_0152 (GRC): G made an FOI request to the Council for disclosure of all information held about the Council's review of its arrangements with BS, a firm of specialist SEN solicitors, and its use of the firm. The review was instigated after the director of BS issued a number of grossly insensitive tweets, apparently mocking parents who had lost appeals in which he represented local authorities. The Council refused disclosure, relying on three exemptions under the FOIA 2000, namely s.36 (Prejudice to the conduct of public affairs), s.41 (Information provided in confidence) and s.42 (Legal professional privilege). It also relied on s.43(2) (Prejudice to commercial interests) in respect of one document. G complained to the ICO, who found that s.36 was engaged for all the withheld information, while ss.41, 42 and 43 were engaged for some documents. G contended that the engagement of a Qualified Person (QP) in the handling of the BS issue amounted to a breach of natural justice and so her opinion could not be reasonable.
The tribunal held, dismissing G's appeal, that the ICO had correctly upheld the Council's reliance on the exemptions provided by ss.36, 41 and 42 FOIA, but not s.43(2). The QP did not occupy a quasi-judicial role when delivering her opinion, although she had to have regard to arguments on both sides when deciding whether disclosure would be likely to inhibit free and frank advice or discussion on this or later occasions. There was no question of a breach of natural justice in these circumstances. The QP's opinion was clearly a reasoned opinion and the public interest in withholding the requested information outweighed the interest in disclosure. The Leader's announcement merely informed the public of the suspension of BS’s contract, and of the review and denounced the offensive tweets; a fair assessment of what he said did not require disclosure of records of internal discussions. Emails from BS, although not marked "confidential",  contained information that was probably confidential in nature, given the commercial interests involved, and its disclosure could damage BS's interests. The value to the public of disclosure of the BS emails in the context of the information otherwise in the public domain, was very slight. Section 42 was relied on for only one email, from an in-house solicitor to other council officers, and was clearly privileged legal advice. There was no compelling public interest in overriding the strong policy argument for preserving that privilege. Section 43(2) was not engaged as it was doubtful that disclosure would cause any further damage to BS beyond what it had already suffered. (21 February 2018)

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

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Adult Social Services

DHSC: Final Government Response to the Law Commission's review of Deprivation of Liberty Safeguards and Mental Capacity: the Government has published its final response to the Law Commission’s report on DoLS (March 2017). It agrees in principle that the current DoLS system should be replaced with the Commission's proposed Liberty Protection Safeguards model as a matter of pressing urgency. It states that it will engage further with stakeholders particularly on implementation, and will bring forward legislation to implement the model when parliamentary time allows. (14 March 2018)

DHSC: The Adult Social Care Outcomes Framework 2018/19 – Handbook of definitions: updated ASCOF handbook of definitions setting out the technical detail of each measure, with examples to minimise confusion and inconsistency in reporting and interpretation. Proposals that relate to the interface between the Mental Health Act and Mental Capacity Act will be considered as part of the current Mental Health Act review. (9 March 2018)

NICE: People's experience using adult social care services: NICE is seeking comments about the five key areas for quality improvement which have the greatest potential to improve the quality of care in this area. The closing date for comments is 19 March 2018. (5 March 2018)

LGSCO: Councils urged to check their care charging procedures following Ombudsman investigations: the Ombudsman has reminded local authorities of their obligations to families when placing people in care homes, after two North Yorkshire families paid over the odds for relatives’ care because the county council gave them inaccurate information. In both cases, the council told the families they would have to make arrangements to pay additional 'top up fees' directly with the care home rather than with the council, contrary to statutory guidelines. (2 March 2018)

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

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Children's Services

DfE: Review of children in need: the Government has launched a review of support for children that need additional help or protection to help understand what makes a difference to their educational outcomes and what works in practice to improve those outcomes. As part of the review, it has issued a call for evidence on how to improve educational outcomes for such children, including children in care. The closing date for submissions is 1 June 2018. (16 March 2018)

Ofsted: Safeguarding policy: updated policy setting out Ofsted’s approach to safeguarding and promoting the welfare of children and vulnerable adults. It applies to all areas of Ofsted’s work. There is also separate guidance for inspectors that sets out what inspectors should do if they learn during an inspection that a child or learner is being harmed, or is at risk of harm. (8 March 2018)

DfE: New alliance to boost confidence in reporting child abuse: announces the launch of a new campaign to tackle child abuse and neglect, led by a partnership of councils, police chiefs, charities and Government. The campaign urges the public to report suspicions via the dedicated campaign website. (15 March 2018)

DfE: Children’s homes research Phase 3 – The impact of standards on staff: sets out the findings of this phase of the research, which explored the implementation and effects of the Children’s Homes Regulations and quality standards on management, staff operations and children. It looked at their views on qualifications, pay and routes in or out of the residential care sector. (15 March 2018)

DfE: Minister announces £17 million to improve children's services: announces funding of over £15m for eight new Partners in Practice, to expand a peer support programme between local authorities to improve children’s services. In addition, there is £2m funding to improve leadership in children’s social care services, which will be delivered through the LGA. (15 March 2018)

DfE: Section 31 grant determination letter – Manchester Arena bombing funding: the Government has awarded £451,000 to Manchester City Council to cover the cost of extra Children’s Social Care support required in the aftermath of the attack in May 2017. (15 March 2018)

LGSCO: Eight out of 10 EHCP investigations upheld by Ombudsman – Latest figures reveal: the Ombudsman reports that his office is now upholding 80 per cent of complaints it investigates about Education and Health Care Plans (EHCP). All children with existing Statements of SEN should be transferred to the new plans by April 2018; however, the Ombudsman is seeing significant delays in the process. Other problems regularly seen by investigators include failing to involve parents and young people properly in the decision-making process, not gathering sufficient evidence to inform decisions, and a lack of proper forward planning when young people move between key educational stages. (6 March 2018)

DfE: 30 hours delivery support fund – Grants for local authorities: details of revenue and capital funding for 2017 - 2018. The fund will provide support to 147 local authorities for work that will directly benefit 30 hours childcare delivery and will create new 30 hours places for the 2018 summer term. (8 March 2018)

Children and Social Work Act 2017 (Commencement No.3) Regulations 2018 (SI 2018/346 (C.30)): this Order brings certain sections of the 2017 Act into force on 19 March and 1 April 2018. In particular, it brings the new ss.16E(3), 16F(6) and 16G(5) &(6) of the Children Act 2004 (relating to child safeguarding) into force on 19 March 2018 in so far as they give the SoS power to make regulations. It also brings s.1 (corporate parenting principles), s.2 (local offer for care leavers) and s.3 (advice and support) into force on 1 April 2018. (1 March 2018)

Education and Adoption Act 2016 (Commencement No.4) Regulations 2018 (SI 2018/300 (C.27)): these regulations bring the Act into full force by appointing 7 March 2018 as the day when s.15 and s.16(c) of the 2016 Act come into force. Section 15 inserts a new s.3ZA into the Adoption and Children Act 2002 that gives the Secretary of State a new power to direct one or more local authorities in England to make arrangements for any or all of their specified adoption functions to be carried out on their behalf by one of the local authorities named or by another adoption agency. (5 March 2018)

Re DAM (Children) [2018] EWCA Civ 386 (CA): M, the mother of three children aged 12, 9 and 5, appealed against foster care orders relating to the two older children. She contended that the judge was wrong to find that the threshold for intervention had been crossed, that he did not carry out a proper welfare assessment, and that had he done so he could not have concluded that care orders were appropriate. She also submitted that the decision was unjust because of a serious procedural irregularity. The judge granted permission to appeal because the structure of the judgment and the absence of any statement from the local authority (or the Guardian) in response meant that he was unable properly to assess the prospects of the proposed appeal succeeding.
The court held, dismissing the appeal, that the judge's findings of fact amply satisfied the threshold for making public law orders and adequately underpinned the welfare decision. It had not been shown that the judge was wrong to conclude that the mother's parenting fell so far short of what the children needed, and that her approach was so ingrained and unchangeable, that care orders were necessary. However, permission to appeal had been rightly granted. Had the judgment proceeded simply and methodically through the stages of the decision-making process, this might have been avoided. There was no one correct form of judgment and different cases might call for different types of judgment. What was necessary in every case was that the judgment should be adequately reasoned. A judgment that lacked structure or was structured in a confusing way made the judge's reasoning harder to follow and raised the possibility that the process by which the decision was reached was faulty. It should not be necessary for an appeal court to undertake a laborious explanatory exercise of the kind contained in this judgment. (8 March 2018)

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

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Combined Authorities

Draft Combined Authorities (Borrowing) Regulations 2018: these draft regulations, once in force, extend the borrowing powers of the six mayoral combined authorities that have each agreed debt caps with HM Treasury, so that they can borrow in respect of all their existing functions, not just transport functions as at present. As each CA has a bespoke set of powers, the functions for which they can borrow vary. The Explanatory Memorandum sets out which are the relevant functions for each mayoral CA. (12 March 2018)

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

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MHCLG: Integrated Communities Strategy green paper: seeks views on the Government’s vision and long-term plan of action to tackle the root causes of poor integration and create a stronger, more united Britain. The proposals aim to boost English language skills, increase opportunities for more women to enter the workplace, and promote British values and meaningful discussion between young people. The Government has announced that it will work with five Integration Areas to develop local integration plans that take tailored actions to address the challenges specific to their place. The consultation closes on 5 June 2018. (14 March 2018)

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

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DfE: School exclusions review – Call for evidence: seeks views on the exclusion of pupils for a fixed period or permanently for disciplinary reasons, to inform an externally led review of exclusions, led by former Children’s Minister Edward Timpson. The review look at how the use and levels of exclusions vary from school to school, focusing on those children who are more likely to be excluded. The closing date for submissions is 6 May 2018.
It has also launched a £4m Alternative Provision Innovation Fund for projects that support children back into mainstream or special schools, as well as encouraging parental and carer involvement in the education of their child. The investment will also fund schemes that support young people as they move from alternative provision in to training or further education at post-16. The closing date for applications is 22 April 2018. (16 March 2018

DfE: Creating opportunity for all – Our vision for alternative provision: this roadmap sets out how the Government will transform alternative provision to make sure these education settings provide high-quality teaching and an education that meets the individual needs of all children, regardless of their circumstances. (16 March 2018)

C and C v The Governing Body of a School (SEN) (Equality Act) [2018] UKUT 61 (AAC): Mr & Mrs C were the parents of a disabled child, L, in respect of whom Mr & Mrs C made claims of discrimination against L's school under the Equality Act 2010. The tribunal noted that Mr & Mrs C had pursued two Equality Act 2010 claims and one statutory appeal against the contents of L’s statement of SEN in the last two to three years, which had led to at least five determinations by the First-tier Tribunal (FtT), four appeals to the Upper Tribunal and one application to the Court of Appeal for permission to appeal against a decision of the Upper Tribunal. Their claim centred on the school's use of PIVATS, a system used to monitor pupils whose performance was outside national expectations.
The tribunal ruled, dismissing their appeal, that the FtT's decision did not involve a material error of law. There were no facts on which the FtT could have decided that the school’s use of PIVATS contravened a provision of the Equality Act 2010, nor was it even arguable that there were such facts. On the "reasonable adjustments" claim, there was no evidence on which the FtT could properly have found that the school’s use of PIVATS put disabled pupils generally at a substantial disadvantage. The judge asked the parents to reflect on whether it was helpful to expend so much effort on challenging L’s school’s attempts to educate her. While the Equality Act 2010 was a vitally important piece of legislation for disabled pupils, it was not some kind of special complaints procedure for parents who were dissatisfied with their child’s education and to treat it as such was to misuse the hard-won rights conferred by the 2010 Act. Equality Act 2010 duties were not contravened simply because a parent was dissatisfied with the education provided to a child with special educational needs, and it was a misuse of the Act to use it as a vehicle to ventilate unfocused grievances about a child’s education. Mr & Mrs C’s conduct of this ultimately unsuccessful litigation had rarely taken the form of focused arguments; if they had put as much effort into seeking to cooperate with the school as they put into challenging it, L's education would have been enhanced. (15 February 2018)

Rittson-Thomas v Oxfordshire CC [2018] EWHC 455 (Ch) (ChD): this case concerned the exercise of the power of sale in s.14 of the School Sites Act 1841. It looked at two rival approaches to interpretation: (1) that land ceased to be used as the site for a school the moment the school was closed; or (2) that the power of sale existed to enable a school to be moved from one location to another, and that the intention behind s.14 would be frustrated if, in order to avoid the reverter of the land to the grantor, it was necessary for the school to remain in use at the original site until the new site was ready for it to move into. The claimants argued that the old school's site ceased to be used for one or more of the purposes listed in the 1841 Act when the school ceased to operate from that site, so that a reverter automatically occurred at that time, under s.2 of the 1841 Act. Therefore, as a result of the Reverter of Sites Act 1987, the Council held a substantial part of the subsequent proceeds of sale on trust for the claimants as the original grantor's descendants. The Council contended that no reverter occurred where there was a composite scheme, plan or transaction whereby the school was to be relocated to new premises, and the funding of a new school on an alternative parcel of land adjoining the old site was to be provided (in part) by using the entire net proceeds of sale of some or all of the land comprised in the old site.
The court held that, following the dicta of Lord Walker in Fraser v Canterbury Diocesan Board of Finance (No 2) [2006] 1 AC 377, the court should take a broad and practical approach to the question whether a school had ceased to be used for the purposes mentioned in s.2 of the 1841 Act. Properly interpreted, s.14 did not require the trust property to be sold first and the money realised from the sale only then to be applied towards the cost of purchase or improvement of other suitable new land or buildings. There were good reasons for reading s.14 less restrictively, so that it did not mean that a sale or exchange of school land or buildings always had to be carried out before or at the same time as the school was moved to new premises. The 1987 Act envisaged that the statutory power of sale or exchange had to be exercised before the statutory reverter occurred, and that reverter was an automatic and irrevocable event which could not be undone by a subsequent exercise of the statutory power of sale or exchange. However, the statutory power of sale or exchange could lawfully be exercised in the manner that the Council sought to exercise it in this case; and, in such circumstances, s.6 of the 1987 Act had the effect of preventing the trust that would otherwise arise under s.1 from arising. (9 March 2018)

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

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LGA: Great people for growing places – A consultation on the strategy for the local government workforce: sets out the LGA's draft vision and priorities for the workforce that it suggests the sector will be engaging with over the next five to ten years. It also provides some ideas on how to achieve that vision. The LGA welcomes comments on the on the priorities that it has identified. (13 March 2018)

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

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Environmental Protection

TfL: New local funding to accelerate transition to zero emission vehicles and tackle air pollution‎: announces £766,000 of new funding for three London boroughs to help accelerate the switch to zero emission vehicles to tackle London's toxic air pollution, as part of the Neighbourhoods of the Future programme. (2 March 2018)

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

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HM Treasury: Spring Statement 2018: the Chancellor has delivered his first Spring Statement that gives an update on the overall health of the economy and the OBR forecasts, gives an update on progress made since Autumn Budget 2017 and invites people and businesses to give views on changes the Government is considering. Major tax or spending changes will now be made once a year at the Budget in the Autumn. Key points: 

  • No extra money now for public sector: "If, in the autumn, the public finances continue to reflect the improvements that today's report hints at, then ... I would have capacity to enable further increases in public spending and investment in the years ahead, while continuing to drive value for money to ensure that not a single penny of precious taxpayers' money is wasted." 
  • The next business rate revaluation, currently due in 2022, will be brought forward to 2021. This will mean businesses can benefit from the change to three-year revaluations earlier, with the first taking place in 2024 – see below in this section. 
  • Government is working with 44 areas on their bids into the £4.1bn Housing Infrastructure Fund to help build the homes that the country needs – see below, under Housing
  • London will receive £1.67bn to start building a further 27,000 affordable homes by the end of 2021-22 
  • Transport: £1.7bn was announced at Autumn Budget 2017 for improving transport in English cities. Half of this was given to mayoral Combined Authorities. The Government is now inviting bids from cities across England for the remaining £840m. 
  • Allocates the first wave of Challenge Fund funding, providing over £95m to help roll out full-fibre to 13 areas across the UK. 
  • The Government has issued a call for evidence on using the tax system or charges to address single-use plastic waste. 
  • Published an update on the progress of the Letwin Review into build out of planning permissions into homes.

(13 March 2018)

MHCLG: Business rates – Delivering more frequent revaluations: Summary of responses: sets out the Government's response to the March 2016 consultation on the challenges and approaches to deliver more frequent business rates revaluations. It announces that the Government will bring forward the next revaluation by one year to 2021, four years after the last revaluation. After this, three-year revaluations will take effect in 2024. Revaluations will continue to be carried out by the Valuation Office Agency and the Government has decided not to introduce self-assessment at this stage. The Government will delay implementation of the new business rate digital system, which will link local authority business rate systems to HMRC digital tax accounts, until after 2024 in order to prioritise the delivery of the next revaluation one year earlier than planned, and the move to three-year revaluations. The Government will aim to implement this new system at the earliest opportunity after the start of the three-year revaluation cycle from 2024. (13 March 2018)

NAO: Financial sustainability of local authorities 2018: this report reviews developments in the local government sector and examines whether MHCLG, along with other departments with responsibility for local services, understands the impact of funding reductions on the financial and service sustainability of local authorities. It finds that there has been a 49.1% real-terms reduction in government funding for local authorities over the period 2010-11 to 2017-18, with a 32.6% real-terms reduction in local authority spending on non-social care services, 2010-11 to 2016-17. It concludes that the sector has done well to manage substantial funding reductions since 2010-11, but financial pressure has increased markedly since its last study. The scope for local discretion in service provision is eroding even as local authorities strive to generate alternative income streams. The current pattern of growing overspends on services and dwindling reserves exhibited by an increasing number of authorities is not sustainable over the medium term, and the financial future for many authorities is less certain than in 2014. Within central government, there is no single central understanding of service delivery as a whole or of the interactions between service areas. To date, the current spending review period has been characterised by one-off and short-term funding fixes which poses a risk of slowly centralising decision-making. This increasingly crisis-driven approach to managing local authority finances also risks value for money. Departments need to build a consensus about the role and significance of local government as a whole in the context of the current funding climate, rather than engaging with authorities solely to deliver their individual service responsibilities. (8 March 2018)

LGA: Supporting councils to improve revenue collection with behavioural insights: "behavioural insights" is based on the idea that interventions aimed at encouraging people to make better choices for themselves and society will be more successful if they are based on an improved understanding of how people actually behave. This publication gathers the learning from projects to develop a set of practical recommendations to assist local authorities with increasing their revenue collection. (15 March 2018)

Welsh Government: Business rates support for high streets extended: the Welsh Finance Secretary Mark Drakeford has announced an extra £5m to extend the high street rates relief scheme in 2018-19. The Welsh Government-funded scheme will provide small and medium-sized high street businesses across Wales with a reduction of up to £750 from their non-domestic rates bills. (15 March 2018)
Welsh Government: Almost £7.6m to revitalise town centres across Wales: announces further Town Centre Loans to help revitalise high streets up and down Wales. (15 March 2018)
Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2018 (SI 2018/325 (W.61)): these regulations, which come into force in Wales on 31 March 2018, amend SI 2003/3239 that provides the regulatory regime for accounting practices to be followed by a local authority in Wales. These 2018 Regulations relax the current constraints around loan capital transactions, specific share capital transactions and bonds, thus placing local authorities in Wales on an equivalent footing to their counterparts in England. (9 March 2018)

Hillingdon LBC v Secretary of State for Communities & Local Government; McCarthy & Stone Retirement Lifestyles Ltd (Interested Party) (Unreported) (Admin Ct): the Council applied for judicial review of the Planning Inspectorate's decision to accept an appeal by McC against the imposition of surcharges under the Community Infrastructure Levy Regulations 2010 (SI 2010/948). McC had obtained planning permission for a sheltered housing development that was a chargeable development under the 2010 Regulations. McC commenced the development without giving any notice of commencement or notice of assumption of liability, as required. When the development had been completed two years later, the Council served a demand notice which McC paid on a without prejudice basis. In September 2016 the Council emailed a further demand notice to McC, made up of levy, surcharges for failure to give notice of assumption of liability and notice of commencement and for late payment, and interest. McC requested a refund of overpaid levy and the Council replied by letter in June 2017 stating that it had imposed surcharges in the September demand notice and itemising those surcharges. McC appealed to the Planning Inspectorate against the surcharges imposed. The Planning Inspectorate initially rejected the appeal as not made within 28 days of the September 2016 demand, but subsequently accepted that the appeal was in time as until the June 2017 letter McC had not been clearly made aware of the imposition of the surcharges. McC argued that the September 2016 email was not a valid demand because it failed to specify the amount of the surcharges and the recipient's rights of appeal as required by the 2010 Regulations.
The court held, refusing the application, that the email demand was not a valid notice. Under reg.69(2)(a), a demand notice had to be issued on the prescribed form or one with substantially the same effect. This had to include information on the amount of levy payable "including surcharges", an express statement that surcharges were being imposed, with details, and a rights of appeal section. It was not clear from the evidence that McC had received a hard copy of the notice which did include details of the surcharges. Given that the email did not state that surcharges had been imposed and say what they were and made no reference to rights of appeal, a reasonable recipient of the email would have been entitled to wonder whether it was a formal demand notice. The parties could either proceed with the appeal on the basis that any defect in the notice was waived or the local authority could give a compliant notice. (15 March 2018)
The judgment is available from Lawtel (subscription required)

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

LGA: Fire Vision 2024: sets out a vision to take the fire and rescue service forward and deliver a service for the 21st century. It states that to meet new risks, adapt to social change, improve effectiveness and efficiency, and to grasp the opportunities offered by technological advances, the fire service will need to be flexible. There is already a statutory duty to collaborate with police and ambulance services where it improves efficiency and effectiveness. FRAs will need to work in effective partnerships with a wide range of organisations, driving new initiatives to join up services and collaborate and will need to ensure that they are at the forefront of operational and technological advances. It highlights how a more diverse workforce is  essential if the fire and rescue service is to succeed in broadening its role and its partnerships to become a response, prevention and protection service for the 21st century. It sets a challenging new target to increase the rate of female firefighter recruitment to 30 per cent nationally by 2024/5, while individual fire services should reflect the ethnic diversity of the community they serve in both frontline staff and staff as a whole, with these proportions mirrored in senior positions.
Alongside the report, the LGA has published a number of case studies that showcase FRAs' recruitment initiatives which promote diversity and inclusion: An inclusive fire service: Recruitment and inclusion.  (15 March 2018)

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

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MHCLG: Northamptonshire County Council best value inspection: this report sets out the detailed findings of Max Caller's inspection, including his conclusions, the evidence and methodology used, and proposals for the future. He finds that "following the Ofsted inspection report published in August 2013 which resulted in an ‘inadequate’ judgment and the subsequent Statutory Direction, NCC lost tight budgetary control and appeared to abandon strong and effective budget setting scrutiny. Instead of taking steps to regain control, the Council was persuaded to adopt a ‘Next Generation’ model structure as the solution. There was not then and has never been any hard edged business plan or justification to support these proposals. … The Council still appears to struggle to take the necessary decisions at both member and officer level to control and restrain expenditure to remain within budget constraints. … Taken together [the concerns] demonstrate the failure to comply with the best value duty." He recommends that there is a new start for the residents of Northamptonshire which can best be achieved by the creation of two new Unitary Councils. "In the meantime the Secretary of State should give serious consideration to whether Commissioners should take over the running of all services save planning currently provided by Northamptonshire County Council and on what basis." (15 March 2018)

HC Public Accounts Committee: Governance and departmental oversight of the Greater Cambridge Greater Peterborough Local Enterprise Partnership: this report follows on from the Committee's 2016 report on the governance of Local Enterprise Partnerships (LEPs). The Committee notes that despite MHCLG accepting its recommendations for improvement, the Greater Cambridge Greater Peterborough LEP provides the latest example of MHCLG devolving powers and funding to LEPs in a manner characterised by both complexity and confusion. It states that MHCLG needs to get its act together and assure taxpayers that it is monitoring how LEPs spend taxpayers’ money and how it evaluates results. It notes that although there was no misuse of public funds in this instance, this was due more to luck than effective oversight given that there appear to have been no effective mechanisms in place for identifying conflicts of interest in GCGP LEP. It is not at all convinced that the issues uncovered in GCGP LEP might not be found elsewhere in other LEPs. MHCLG needs to implement quickly the recommendations of Mary Ney’s review of LEP governance and transparency, ensure that all LEPs and their boards are aware of the Nolan Principles for the standards of conduct expected in public life and ensure that they live up to these principles in practice. (16 March 2018)

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

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MHCLG: Fixing our broken housing market – Government response to the Housing White Paper consultation: sets out the Government's proposed action following the February 2017 consultation on changes to planning policy and legislation in relation to planning for housing, sustainable development and the environment. The Housing White Paper set out proposals for tackling the housing shortage, including better, more realistic plan-making, and new ideas to enable local authorities to ensure that their plans are implemented and that the necessary infrastructure will be in place to support new homes.
See also Government response to the Planning for the right homes in the right places consultation that announces: 

  • a standard method for calculating local authorities’ housing need; 
  • a statement of common ground to improve how local authorities work together to meet housing and other needs across boundaries; 
  • making the use of viability assessments simpler, quicker and more transparent; and 
  • increased planning application fees in areas where local authorities are delivering the homes their communities need.

The Government has also launched two new consultations on: 

Both consultations close on 10 May 2018. (5 March 2018)

MHCLG: More support to boost house building momentum: details of measures announced by the Chancellor in the Spring Statement. These include confirmation of an £1.67bn funding package for London to build affordable homes, and a West Midlands Housing Package with £100m to back the West Midlands CA Mayor's ambitious plan to deliver 215,000 homes by 2030 to 2031, with local plans updated to deliver this by 2019 and a significant increase in the release of land for new homes. (13 March 2018)

MHCLG: Crackdown on private landlords renting overcrowded and dangerous homes: announces new measures to improve overcrowded and dangerous living conditions of private tenants in shared homes. From October, councils will be able to set minimum bedroom size standards and also introduce limits on how many people can live in each bedroom of a licenced multiple occupancy home. Councils will be able to use national minimum standards or apply even tougher requirements in order to address specific local needs. They will also be able to impose fines of up to £30,000 for those landlords who do not comply. (15 March 2018)

Rother DC v Freeman-Roach [2018] EWCA Civ 368 (CA): the Council appealed against the county court's ruling quashing its decision that FR did not have a priority need for accommodation because he was not a person who was vulnerable as a result of mental illness or physical disability within the meaning of s.189(1)(c) of the Housing Act 1996, and quashed its refusal to provide FR with interim accommodation pending his appeal. The Council's medical adviser found that FR's medical issues did not render him significantly more vulnerable than an ordinary person, and the Council decided that he was not in priority need. The county court judge ruled that the review decision did not establish that the correct comparator had been applied in coming to a view as to vulnerability so the decision making process was flawed as it failed to evidence a correct approach, and this was an error of law.
The court held, allowing the Council's appeal, that on an appeal against a review decision, the council was not required to establish that the review officer applied the correct test; rather it was for the applicant to show that the decision letter contained an error of law. Here, there was no apparent error of law - when the review decision was read as a whole there was no basis for concluding that the reviewing officer had applied the wrong comparator. The review decision could not be faulted because it failed to define 'vulnerable' or 'significantly' or failed to list the attributes of the ordinary person if made homeless. The reasons expressed in the review decision were sufficient for FR to understand why the Council had decided that he was not in priority need and to be assured that the reviewing officer had applied the correct test in coming to that decision. There was no basis for quashing the review. Nor was there any error of law in the interim accommodation decision – the Council had applied the correct test and had taken into account all relevant factors. (6 March 2018)

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

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Judicial Review

Daniel Johns Manchester Ltd v Manchester City Council [2018] EWHC 464 (Admin) (Admin Ct): DJM, a property firm, applied for judicial review of the Council's "continued refusal" to "consider its offers" to purchase the freehold of a commercial property. The case raised issues as to the amenability of the decision to challenge on public law grounds when the decision in question rescinded a previous resolution authorising the sale by private treaty of the freehold of the property to DJM and the Council had previously indicated its willingness to sell the freehold to the previous owner of the long leasehold interest in the property but only on terms which were expressly marked "without prejudice and subject to contract". DJM's primary complaint was that the refusal to sell was rendered unlawful because it was motivated by the Council's disapproval of DJM's intention to develop the property in accordance with a planning permission which the Council had previously granted in its capacity as local planning authority.
The court held that, applying the approach set out in Trafford v Blackpool BC [2014] EWHC 85 (Admin), the decision was not unlawful on public law grounds. The Council's previous grant of planning permission, in its capacity as local planning authority, was not sufficiently connected with its subsequent decision, in its capacity as a private landowner, to refuse to proceed further with a proposal to sell the freehold to DJM and so did not impose the full range of public law obligations upon the Council. There was plainly no question of fraud, corruption or bad faith, nor could the Council's decision be categorised as the knowing pursuit of an improper purpose. The Council was motivated by a perfectly legitimate and genuine desire to seek to persuade DJM to enter into constructive discussions about alternative proposals as to the development of the site. The Council was not refusing to transfer the freehold out of a vindictive desire to punish DJM for refusing to entertain any alternative proposal. The Council had perfectly lawful and legitimate reasons for acting as it did. (12 March 2018)

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

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Local Land Charges

HM Land Registry: Migration begins on HM Land Registry’s national Local Land Charges Register: the Infrastructure Act 2015 provides for the transfer of responsibility for Local Land Charges (LLC) registers from English local authorities to HM Land Registry. HM Land Registry has now announced that it has started the process of transferring LLC records to the new centralised digital register, working with 26 authorities in the first phase. The new national LLC register will launch later this year and will benefit up to 125,000 homebuyers in 2018/19. HMLR has also published guidance on the Local Land Charges Programme with information about the consultation on the draft Local Land Charges Rules and about local authorities’ preparation for the migration of their data.
The Government response to the consultation states that the draft Local Land Charges Rules 2018 will be laid before Parliament shortly. (1 March 2018)

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

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Housing and Planning (Local Decision-Making) Bill 2017-19: this Private Member's Bill has been introduced into the Commons and received its 1st Reading. The Bill would remove the Secretary of State's powers in relation to the location of and planning permission for new housing developments, and give local authorities powers to establish requirements on such developments in their area, including requirements on the proportion of affordable and social housing. (13 March 2018)

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

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Ports and Harbours

DfT: Ports good governance guidance: updated guidance setting out principles of openness, accountability and fitness for purpose in managing harbours in the broad public interest. It covers corporate governance, stakeholder engagement, provision of information, safety and a number of other topics. (5 March 2018)

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

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Regulatory Services

Investigatory Powers (Codes of Practice) Regulations 2018 (SI 2018/355): these regulations bring five Codes of Practice regarding functions carried out under the Investigatory Powers Act 2016 into force on 9 March 2018. The Codes set out the processes and safeguards governing the use of investigatory powers by public authorities including the police and security and intelligence agencies. They give detail on how the relevant powers should be used, including examples of best practice. (8 March 2018)

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

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Scrutiny and Audit

MHCLG: Government Response to the Communities and Local Government Committee First Report of Session 2017-19 on the effectiveness of local authority overview and scrutiny committees: sets out the Government's response to the Select Committee’s December 2017 report that made a number of recommendations as to the local government overview and scrutiny system. The Government accepts most, but not all, of these recommendations. The response says that "The Government firmly believes that every council is best-placed to decide which scrutiny arrangements suit its individual circumstances, and so is committed to ensuring that they have the flexibility they need to put those arrangements in place." It states that it will issue new guidance later this year that will update the current guidance which was issued in 2006. (5 March 2018)

MHCLG: Assessing the impact of changes to the local audit regime – Coping and baselining study: RAND Europe was commissioned by DCLG to undertake the baselining and scoping work for a possible future evaluation of the impact of reform of local audit in England under the Local Audit and Accountability Act 2014. This report provides methodological advice on how to measure the impact of reforms to the local audit regime. It provides a set of baseline metrics and analysis from which a subsequent evaluation might measure impact. (15 March 2018)

Local Health Scrutiny Bill 2017-19: this Private Member's Bill has been introduced into the Commons by Gareth Snell MP and received its 1st Reading. The Bill makes provision about health scrutiny by local authorities, including scrutiny of clinical commissioning groups' decisions. (7 March 2018)

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

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Structural Reorganisation

NLGN: Culture shock – Creating a changemaking culture in local government: this essay is the second in NLGN’s Changemaking series. It draws on cutting edge academic research and practical case studies to answer questions about the culture of local government and chart a new way forward for the whole sector. It argues that transforming the culture of an organisation is much more likely to secure improvements in performance than shifts in governance regimes and institutional forms. (10 March 2018)

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

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