Authority Update 13/4/18

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

16/04/2018

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    Health and Social Care
   Adult Social Services    Housing
   Burial and Cremation    Overview and Scrutiny
   Children's Services    Parish Councils
   Delivery of Services    Planning and Development Control
   Economic Development    Procurement
   Education    Public Health
   Emergency Planning    Regulatory Services
   Emergency Services    Structural Reorganisation
   Finance  

Access to Information

Data Protection (Charges and Information) Regulations 2018 (SI 2018/480): these regulations, which come into force on 25 May 2018, set out the circumstances in which data controllers are required to pay a charge, and provide information, to the Information Commissioner (IC), following the introduction of the General Data Protection Regulation (GDPR) regime. They replace the previous regime under the Data Protection (Notification and Notification Fees) Regulations 2000 (SI 2000/188). The regulations set out the different charge levels for different data controllers, which are based on the income required to enable the Information Commissioner’s Office to adequately deliver on their expanding remit following the implementation of the GDPR. The charge levels have been increased from the current level of fees to reflect the increased responsibilities of data protection supervisory authorities such as the IC under the GDPR. (11 April 2018)

Hartlepool BC v Information Commissioner (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017/0057 (GRC): the Council appealed against the Information Commissioner's Decision Notice regarding the disclosure of information relating to the transfer of ownership in 2003 of Teesside International Airport to a third party, P. The Council had provided some of what it held, in response to an FOI request, but it withheld the remainder on the basis of s.43(2) FOIA 2000 (prejudice to commercial interests). The Commissioner considered that the Council had failed to demonstrate that s.43(2) was engaged and he ordered the Council to disclose the information.
The tribunal held, upholding the Decision Notice, that the causal link between the disputed information and the claimed prejudice had not been proved. Section 43(2) was engaged if disclosure of the information would or would be likely to prejudice the commercial interests of any person. Here, the assertion was that the prejudice would be suffered primarily by P, the non-party majority shareholder of the airport. P had failed to support its assertions with evidence and had not shown how information dating back to 2003 in relation to a specific project in a specific economic climate, would cause prejudice to negotiations regarding another development project 15 years later. The onus was on the party making the assertion that the exemption was engaged. It did not need to show every possible way in which prejudice would or would be likely to arise nor was it necessary to show that the extent of the prejudice would be significant. It was sufficient that “some commercial disadvantage” was likely to be suffered. However, it had to show that disclosing the information would have "a very significant and weighty chance" of causing prejudice that was "real, actual or of substance". Even if the exemption were engaged, there was a clear public interest, in terms of greater public understanding and accountability, in information concerning ownership of the airport and its redevelopment, and in the financial decisions taken by the Council and other local authorities being transparent. (9 April 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

Welsh Government: New requirements to ensure care workers are treated fairly come into force: announces that new requirements to ensure care staff who look after people in their own homes are treated fairly and people receiving care experience the best possible services have come into force in Wales. (2 April 2018)

Welsh Government: Residential care savings limit increases in Wales: announces that the limit on the amount of capital that a person in residential care can retain without having to use this to pay for their care, is increasing from £30,000 to £40,000 from 2 April 2018. This is part of the Welsh Government's commitment to increase this limit to £50,000 during the current Assembly term. The increase is being delivered in a phased approach from starting in April 2017. (9 April 2018)

Revised Codes of Practice on the exercise of social services functions in relation to Parts 4 and 5 and Part 6 of the Social Services and Well-being (Wales) Act 2014 (Appointed Day) (Wales) Order 2018 (SI 2018/469 (W.79)): this Order appoints 2 April 2018 as the day on which three revised Codes of Practice come into force in Wales. The Codes relate to Parts 4, 5, and 6 of the 2014 Act on direct payments and choice of accommodation, charging and financial assessment, and looked after and accommodated children. (26 March 2018)

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

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Burial and Cremation

MoJ: The Cremation (England and Wales) Regulations 2008 – Guidance for cremation authorities and crematorium managers: updated guidance on completion and processing of the statutory forms. (6 April 2018)

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

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Children's Services

Ofsted: Memorandum of understanding between Ofsted and DfE in respect of secure children's homes: sets out the working arrangements between Ofsted and DfE to facilitate the discharge of the Secretary of State for Education’s functions and the DfE’s wider responsibilities regarding secure children’s homes so that they offer safe, good quality care to children. (4 April 2018)

Ofsted: Guidance for children’s homes providers – Notifying Ofsted of a serious event: guidance to providers on their duty under reg.40 of the Children’s Homes (England) Regulations 2015, to notify Ofsted about the most serious incidents. It states that the number of notifications has continued to increase and many of the notifications received do not fall into the category of ‘serious’. The guidance sets out Ofsted's expectations in respect of notifications and is intended to help providers reduce the number of notifications that they send to Ofsted. (11 April 2018)

Ofsted: Early years inspection handbook: describes the main activities that inspectors undertake when they conduct inspections of early years providers in England under ss.49 and 50 of the Childcare Act 2006 and the Common Inspection framework. The handbook also sets out the judgements which inspectors will make and on which they will report. (4 April 2018)

DfE: Surveys on childcare and early years in England: seeks user perspectives on two surveys released as official statistics on childcare and early years provision in England. These cover parents’ and their children’s use of childcare and early years provision, and their views and experiences, and also information on the main characteristics of childcare and early years providers in England. The consultation closes on 18 May 2018. (29 March 2018)

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

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Delivery of Services

Better public services green paper and Manifesto: this Green Paper, launched at the Institute for Government, aims to spark debate about the future of public services and how best to make improvements to the benefit of all. It asks how one would plan a modern, internet-enabled state if one had a clear field  without being hampered by vested interests of any kind, and in particular, how to transition successfully from the current state to that future state. It proposes a plan to enable public services to modernise by incorporating the best elements of modern, internet-enabled organisations, and to grow, learn, adapt and evolve these over time. (27 March 2018)

APSE: ECO funding for local authorities – A simple guide to the Government’s ECO scheme: the Energy Companies Obligation is a national initiative that requires major Energy Companies to fund heating and insulation improvements in homes throughout Great Britain. This guide looks at how local authorities can the best use of this support to improve homes, reduce fuel poverty and keep vulnerable resident warm and healthy. It explains how funding is allocated and why some installations are prioritised over others. It also provides case studies of successful local authority schemes where ECO has added value and extended the scope of installations. (11 April 2018)

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

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Economic Development

DDCMS: Search begins for a UK 5G city of the future: seeks expressions of interest from public sector authorities who wish to take a key role in the Urban Connected Communities Project, which forms part of the Industrial Strategy and is the next step in the Government’s 5G Testbed and Trials Programme. The project  will develop a testbed for wireless 5G infrastructure based on a large scale city area in the UK. The closing date for submission of Expressions of Interest Open is 31 May 2018 – see the 5G Urban Connected Communities Project web page for details. (30 March 2018)

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

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Education

DfE: Home education – Call for evidence and revised DfE guidance: the first part of this consultation seeks views on some of the reported difficulties in providing assurance that every home educated child is receiving a good education. It focuses on: the registration of children educated at home; and local authorities' monitoring of home education provision. The second part seeks comments on two draft guidance documents about elective home education, one designed for local authorities and the other for parents. The draft guidance for local authorities aims to help local authorities understand their powers and duties in relation to children who are being educated at home, and how those relate to the obligations of parents. The overall intention is to enable local authorities to operate effectively within the existing legal framework, and use resources effectively and proportionately according to the needs of the children concerned. The closing date for comments on both parts is 2 July 2018. (10 April 2018)

DfE: Out-of-school education settings – Report on the call for evidence conducted November 2015 to January 2016: sets out the Government's response to the consultation on a proposed system for registering and inspecting out of school education settings. It states that, in light of responses received, the Government has decided not to pursue the proposed model for regulating out of school settings; instead, it will develop further the evidence base for a national approach, including future legislation where gaps in existing powers are identified. It has already taken action by establishing a £3m targeted fund which will go to selected areas to support work between local authorities and relevant agencies on how existing legal powers can be most effective in addressing safeguarding and welfare concerns, alongside community engagement and outreach. This work will inform the need for any future regulation. The Government will consult later this year on a voluntary code of practice for out of school settings that will set out what is expected of providers, and will work with local authorities to provide guidance to parents on out of school settings. (10 April 2018)

DfE: New measures to support children with SEND: reports that 94% of young people with special educational needs or disabilities (SEND) have had their care reviewed prior to the April deadline, as part of the Government’s introduction of new Education, Health and Care (EHC) plans. DfE has announced 14 new special free schools across the country that will create more than 1,100 school places for children with multiple learning needs, including children with autism and mental health needs. The press release also announces an additional £200,000 funding for local authority regional SEND coordinators, and the launch of a national trial to give the SEND Tribunal new powers, enabling parents and young people to appeal decisions on the social care and health parts of their EHC plan alongside their existing rights on the education element. (29 March 2018)

School Information (England) (Amendment) Regulations 2018 (SI 2018/466): these regulations, which come into force on 1 September 2018, amend SI 2008/3093 to impose a new requirement on maintained schools to publish information about their careers programme on their websites. The aim is to make the details of the school’s careers offer more visible to young people, parents, teachers and employers; and parents will be able to use the information as a factor in choosing schools for their children. This will also help to raise standards of careers provision in schools. (4 April 2018)

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

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Emergency Planning

LGA: A councillor’s guide to cyber security: healthy cyber security is key to the efficient and productive running of every council. Whilst the level of threat varies across councils, all possess information or infrastructure of interest to malicious cyber attackers. Councils should consider it a case of ‘when’ not ‘if’ a cyber attack will occur. This guide looks at how councils should continuously review, refresh and reinforce their approach to cyber security. (29 March 2018)

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

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Emergency Services

Home Office: Northamptonshire PCC to take on responsibility of fire and rescue service: announces that the Home Secretary has approved Northamptonshire PPC's proposal to take on responsibility for Northamptonshire Fire and Rescue Service, under the powers in the Policing and Crime Act 2017. (11 April 2018)

Welsh Government: Funding for fire prevention programmes announced: announces £1.5m to support Fire and Rescue Authorities in Wales to increase fire prevention efforts, following the recent fall in incidences of fire and fire casualties. (12 April 2018)

Local Government Lawyer: Claimant nets permission for judicial review of police station closures in London: reports that Paul Koehler, an academic working at SOAS who is a robbery victim, has been granted permission to bring a judicial review challenge over the Mayor’s Office for Police and Crime's plans to close 37 of the 73 police stations across London. The judicial review will be heard in June. (13 April 2018)

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

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Finance

MHCLG: Local government finance – Review of governance and processes: the Secretary of State has announced an independent review of the processes and procedures that underpin the Ministry’s governance of the business rates system. Led by former Director General for Public Services at Her Majesty’s Treasury, Andrew Hudson, the review will examine how the system can operate as smoothly as possible, with the scope for error minimalised. The terms of reference give more detail of the review. (11 April 2018)

CIPFA: New Code improves transparency of transactions in local government finances: announces the publication of a new edition of the Code of Practice on Local Authority Accounting in the United Kingdom 2018/19. The new Code introduces the two new financial reporting standards – IFRS 9 Financial Instruments and IFRS 15 Revenue from Contracts with Customers. These standards work to promote increased transparency of the effect of transactions on local authority finances. (4 April 2018)

NALC: Governance and accountability for smaller authorities in England – A practitioners’ guide to proper practices to be applied in the preparation of statutory annual accounts and governance statements: this guide is issued by the Joint Panel on Accountability and Governance to support the preparation by smaller authorities in England of statutory annual accounting and governance statements found in the Annual Governance and Accountability Return. A ‘smaller authority’ is one where the higher of the authority's gross income for the year and its gross expenditure for the year does not exceed £6.5m. This 2018 edition of the guide applies to Annual Governance and Accountability Returns in respect of financial years commencing on or after 1 April 2018. (21 March 2018)

MHCLG: Council tax levels set by local authorities – England 2018-19: gives details of the level of Council Tax set by local authorities in England for the financial year 2018 to 2019, with associated tables.
The NALC say that these show that local councils in England are set to spend an extra £33m on local services over the next year. Its analysis suggests this additional investment will be spent on safeguarding facilities such as public toilets, youth services, parks, open spaces and libraries. (28 March 2018)

Sanderson v Valuation Tribunal (Unreported, Admin Ct): S appealed against the Valuation Tribunal's decision upholding the local authority's decision that he was responsible for payment of council tax for a property. S was the freehold owner of a property that he had let to an elderly tenant on a long lease. The tenant (who had since died) had had a stroke and S had helped to care for her. The tribunal found that during the relevant period S had lived in the property with the tenant. S argued that he had acted out of charitable motives towards his tenant and that he should not be liable for the council tax arrears of £6,000 that had accrued over a four-year period.
The court held, dismissing the appeal, that the statutory provisions clearly delineated who was responsible for payment of council tax. Under s.6(1) and s.8(1) LGFA 1992, S was jointly and severally liable for the council tax because he lived in the property and owned the freehold. Given the comparatively small amount in dispute, compared to the substantial equity that S had in the property, it was just to provide that the order dismissing the appeal not come into force for 28 days, thereby giving him the opportunity to pay before the local authority might seek to enforce by sale of the property. The judgment is available on Lawtel (subscription required). (12 April 2018)

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

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Governance

MHCLG: Publicity Code – Directions issued: the Secretary of State has issued Directions under s.4A LGA 1986 to Hackney and Waltham Forest LBCs regarding their compliance with the Code of Recommended Practice on Local Authority Publicity. The Directions require the Councils' compliance with the frequency provision of the Code by 1 September 2018 and to ensure that, within 21 days of each authority’s first annual meeting following the local government elections on 3 May 2018, the Councils take the necessary decisions in order that they are in a position to comply from 1 September 2018. (11 April 2018)

Cabinet Office: May 2018 elections – Guidance on conduct: guidance to civil servants in UK government departments, and the staff and members of non-departmental public bodies and other arm’s length bodies on their role and conduct during the forthcoming election campaign. (11 April 2018)

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

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Health and Social Care

DHSC: A consultation on extending legal rights to have for personal health budgets and integrated personal budgets: seeks views on giving more people the right to have personal health budgets and integrated personal budgets. Currently, the only people who have a specific ‘right to have’ a personal health budget, are adults in receipt of NHS continuing healthcare or children receiving continuing care. DHSC has identified a number of other groups who it feels could benefit from having a ‘right to have’ a personal health budget, or where appropriate, an integrated personal budget. The consultation closes on 8 June 2018. (6 April 2018)

Age UK: Why call it care when no one cares?: this campaign report looks at how older people and their families experience the crisis in social care. It summarises the results of a series of listening events that the charity held with older people who are receiving care and their family carers in which they talked about their personal experiences of care, highlighted the problems they faced and what would make life better. They also discussed various funding proposals and what those would mean for them and their families. (28 March 2018)

The King's Fund: Reforming social care is about more than funding: this blog by Simon Bottery, Senior Fellow at the King's Fund, looks at Jeremy Hunt’s recent speech that set out the Health Secretary's principles for social care reform, and considers how the forthcoming Green Paper can now combine them in a coherent, comprehensive plan. (5 April 2018)
See also Stuart Marchant's article Will Jeremy Hunt's principles for social care reform be a game changer for the sector? for a discussion of the seven principles.

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

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Housing

Regulator of Social Housing: Regulating the Standards: outlines the RSH’s operational approach to assessing providers’ compliance with the economic and consumer standards. It describes the contact that social housing providers can expect to have with the regulator and the way that the RSH seeks assurance from them to inform its regulatory judgements. The document also outlines the information it requires to regulate effectively and proportionately, as well as explaining other aspects of the regulator’s role such as the maintenance of the statutory register of providers.
The RSH has also published a new Value for Money Standard and associated Code of Practice. This is one of the three economic standards that apply to all registered providers except for local authorities because the regulator has no power to set economic standards for local authorities. (10 April 2018)

MHCLG: Civil penalties under the Housing and Planning Act 2016: the 2016 Act gives local authorities powers to impose a civil penalty of up to £30,000 as an alternative to prosecution for a range of offences under the Housing Act 2004, and where a landlord or property agent has breached a banning order under the Housing and Planning Act 2016. This statutory guidance helps local authorities use their powers to impose a civil penalty as an alternative to prosecution for certain housing offences. It has been updated to reflect that a civil penalty can now also be imposed for breach of a banning order. (6 April 2018)

MHCLG: Database of rogue landlords and property agents under the Housing and Planning Act 2016: statutory guidance for local housing authorities on their new powers and obligations to make entries in the new database rogue landlords and property agents. A local housing authority must make an entry on the database where a landlord or property agent has received a banning order; they also have a discretion to make entries where a landlord or property agent has been convicted of a banning order offence or has received two or more civil penalties within a 12 month period. (6 April 2018)

MHCLG: Banning order offences under the Housing and Planning Act 2016: guidance for local housing authorities on how to use their new powers to ban landlords and property agents from renting out property where they have been convicted of a banning order offence. It encourages a joined up approach to enforcement action in the private rented sector. (6 April 2018)

MHCLG: Funding for supported housing – Response to two consultations: sets out the Government's interim response to the October 2017 consultations on proposed new models for funding housing costs of supported housing - one relating to sheltered and extra care and the other relating to short-term supported accommodation. This paper gives a short summary of the responses received. It states that the Government is currently considering these views and will publish a full formal response, including more details of the policy, in the summer. (3 April 2018)

MHCLG: New government initiative to reduce rough sleeping: announces a cross-government plan of  action to reduce significantly the number of people sleeping rough, as the Homelessness Reduction Act 2017 comes into force. The measures include: a new Rough Sleeping Team to drive reductions in rough sleeping; a targeted £30m fund for 2018 to 2019 for local authorities with high levels of rough sleeping; and £100,000 funding to support frontline Rough Sleeping workers. (30 March 2018)

LGSCO: Homeless family left to live in hotel rooms for three years by Bristol City Council, Ombudsman finds: the Ombudsman has criticised a council for the way it handled a family’s attempts to register a housing application, for failing to take a homelessness application, and for trying to charge them the full cost for storing their belongings while they were living in hotel accommodation. He found that the family, including children with disabilities, shared a single hotel room for more than three years because the Council did not treat their housing and homelessness applications properly. A number of council departments were aware of the family’s problems, including Children’s Services, but nothing was done about their housing situation until the Ombudsman got involved. He also criticised the Council’s use of a ‘pre-application checker’ for its online housing application, which prevented people from registering if they met certain criteria. This was unlawful, and prevented people using their right to apply for a review of their housing application decision. The Council had since housed the family and agreed to wipe off the whole contribution the father agreed to make for storage costs, in recognition of the trouble and distress its actions caused when it stopped paying for storage. The Ombudsman recommended that the Council should also pay the father £8,400 for the delay and a further £600 for the time, trouble, frustration and distress it had caused. (12 April 2018)

HM Land Registry: Transfers of public housing estates (PG47): updated practice guide on the transfer and registration of publicly-owned housing estates and on the preserved right to buy. It is aimed at conveyancers, local authorities, social landlords and other bodies acquiring public housing estates and their legal advisers. (6 April 2018)

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

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Overview and Scrutiny

DEFRA: Post implementation review of the Flood Risk Management Overview and Scrutiny Committee (England) Regulations 2011: the 2011 Regulations were introduced under the Local Government Act 2000 to prescribe the processes that Risk Management Authorities (RMAs) must follow to comply with requests for information from Overview and Scrutiny Committees (OSCs) on flood management. The regulations are subject to a sunset clause scheduled to take effect on 6 April 2018; after this date the regulations will cease to have legal effect. This paper evaluates the effectiveness and impact of the regulations and makes a recommendation as to whether the regulations should be replaced or renewed beyond the coming into effect of the sunset clause. It finds that the regulations are not being relied upon and have contributed little to achieving the objectives of the enabling primary legislation. The formal procedures for requesting information and compliance with timeframes in the regulations are not being used - OSCs are working with RMAs and making requests for information from them in relation to their flood management activities both formally and informally according to the established working relationship. DEFRA therefore considers that in light of their apparent lack of use, the sunset clause should be allowed to take effect and no replacement regulations should be laid. The loss of a timeframe for RMA compliance with information requests and a confidentiality safeguard will be unlikely to have an impact as to date they have not been used. The loss of a requirement to make requests in writing will have a very low impact as requests are currently made according to the norms of the working relationship in question. (11 April 2018)

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

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Parish Councils

LGA: A councillor's workbook on working with town and parish councils: this workbook is a distance learning aid for local councillors. It is intended to provide them with insight and assistance with the key skills which will help them to be most effective in their role when working with town and parish councils as well as town and parish councillors. (3 April 2018)

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

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Planning and Development Control

MHCLG: Powers for dealing with unauthorised development and encampments: seeks views on the effectiveness of local authorities' and the police's powers for dealing with unauthorised development and encampments. It includes discussion of: court processes; trespass; planning enforcement; the provision of authorised sites; and the impacts on the travelling community. The consultation closes on 15 June 2018. (5 April 2018)

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

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Procurement

CCS: Procurement Policy Note 01/18: Supply chain visibility: this PPN sets out new measures to increase the visibility of subcontracting opportunities in Government supply chains and to provide greater visibility of supply chain spend. The measures include a reporting template. All Central Government Departments, their Executive Agencies and Non Departmental Public Bodies must apply the provisions of this PPN in new procurements from 1 May 2018. (10 April 2018) 

CCS: Prompt payment by Government suppliers: seeks views from suppliers to government, their representatives, public bodies and those involved in public procurement on proposals to exclude suppliers from major government procurements if they cannot demonstrate a fair, effective and responsible approach to payment in their supply chain management. The closing date for comments is 5 June 2018. (10 April 2018)

DDCMS: The Public Services (Social Value) Act 2012 – Introductory guide: the Office for Civil Society, with support from the Crown Commercial Service, has written an introductory guide to the Social Value Act for commissioners and policy makers. It gives a plain English explanation of the Act and advises on how to include social value in specifications for services. This guidance is aimed at those in commissioning, policy-making or operational roles who need to procure a service on behalf of bodies defined as contracting authorities under the Public Contracts Regulations 2015. (5 April 2018)

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

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Public Health

LGA: Tackling tuberculosis – Local government's public health role: address questions that councillors and officers may have on tuberculosis (TB), its burden in the UK and what action they and local government can take to tackle TB. (23 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

MHCLG: Powers for dealing with unauthorised development and encampments: seeks views on the range of powers available for dealing with unauthorised development and encampments and on any barriers to the provision of authorised sites. It covers police and local authority powers, court processes, government guidance, the provision of legal sites, and the impact on settled and nomadic communities. The consultation closes on 15 June 2018. (5 April 2018)

DEFRA: Government crackdown on litter louts: reports that the maximum on-the-spot fine for littering and graffiti has increased from £80 to £150; in addition, local authorities can use these littering penalties against vehicle owners if it can be proved litter was thrown from their car. The new penalties are introduced by the Environmental Offences (Fixed Penalties) (England) Regulations 2017 (SI 2017/1050) and the Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018 (SI 2018/171). (1 April 2018)

DEFRA: Reducing litter; Proportionate enforcement: seeks views on proposals to modify the Code of Practice on Litter and Refuse to incorporate guidance on the proportionate and effective use of fixed penalties (civil and criminal) against littering and related offences. The guidance is also relevant for other environmental fixed penalty powers such as for abandoned vehicles, fly-tipping, parking, and offences related to domestic waste bins. The consultation closes on 8 June 2018. (10 April 2018)
There is also updated guidance on Fixed penalty notices: issuing and enforcement by councils that sets out how councils and other authorities issue fixed penalty notices (FPNs) for environmental offences, the fine limits and how the money can be spent. (1 April 2018)

Hounslow LBC v Aslim [2018] EWHC 733 (Admin) (Admin Ct): the Council appealed against the magistrates' court's decision to acquit A of two charges under s.14(2) of the London Local Authorities Act 1991 regarding breach of the Council's special treatment licence for his body-piercing shop. The council contended that A had failed to obtain written consent from a parent or guardian to carrying out body piercing on a child aged 14 and had failed to keep complete and proper records for all treatments provided. The child had told A that she was 16 and had produced a photo card indicating that she was aged over 16. She had also arranged for a friend to pretend to be her father in a telephone conversation with A to confirm to the latter that she was aged over 16. The magistrates ruled that A had taken all reasonable steps to ensure that the child was 16 or over, and acquitted him.
The court held, allowing the Council's appeal, that there was nothing in s.14(2) to indicate that a licence holder's reasonably held belief that he was complying with the terms of the licence might afford a defence. Whether or not A took all reasonable steps to ensure that the client was aged over 16 was irrelevant to whether or not he was guilty of the offence under s.14(2). On the issue of age, it was sufficient for the prosecution to prove that the client was in fact aged under 16. The judge also allowed the appeal on the second offence, and remitted the case to the magistrates' court with a direction to convict the respondent on both offences. (21 March 2018)

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

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Structural Reorganisation

Draft Dorset (Structural Changes) (Modification of the Local Government and Public Involvement in Health Act 2007) Regulations 2018 and draft Bournemouth, Dorset and Poole (Structural Changes) Order 2018: these draft instruments provide for the creation of a single tier of local government for Dorset, Bournemouth and Poole with effect from 1 April 2019. The Regulations, made under s.15 of the Cities and Local Government Devolution Act 2016, provide that Part 1 of the 2007 Act is to be varied in its application to the Dorset councils so that those councils can make proposals for structural change in their area to the Secretary of State without an invitation having been received and allowing the Secretary of State to implement those proposals by order under s.7 of the 2007 Act. The Regulations expire at the end of March 2020. The Order implements the proposal made under the 2007 Act that there should be two new unitary authorities for the area of Dorset: Dorset Council covering the existing districts of East Dorset, North Dorset, Purbeck, West Dorset, and the borough of Weymouth and Portland; and Bournemouth, Christchurch and Poole Council, covering the county and borough of Bournemouth, the borough of Christchurch, and the county and borough of Poole. These instruments deal with the essential elements of the new single tier local government structures: the abolition of the existing local government areas and the winding up and dissolution of the existing county, district and unitary councils, the creation of new local government areas and new councils for those areas, and the making of arrangements for preparation for transition to single tier local government. (4 April 2018)

Draft Somerset West and Taunton (Modification of Boundary Change Enactments) Regulations 2018 and draft Somerset West and Taunton (Local Government Changes) Order 2018: these draft instruments provide for the abolition of West Somerset DC and Taunton DC, and the creation of a new Somerset West and Taunton DC which covers the same contiguous geographic area, from 1 April 2019. The Regulations, made under s.15 of the Cities and Local Government Devolution Act 2016, provide that Part 1 of the 2007 Act is to be varied in its application to West Somerset and Taunton Deane so that those councils can make proposals for boundary change in their area to the Secretary of State rather than to the Local Government Boundary Commission and allow the Secretary of State to implement those proposals by order under s.10 of the 2007 Act. The Regulations expire at the end of March 2020. The draft Order implements the proposal made under the 2007 Act that there should be a new non-metropolitan district council for Somerset West and Taunton, including the establishment of a shadow authority before Somerset West and Taunton Council takes on full responsibility for local government matters on 1 April 2019. The Secretary of State intends to exercise his powers under s.14 of the 2007 Act to provide for transferring functions, property, rights and liabilities to the new council, as well as transitional provisions relating to financial matters. (4 April 2018)

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

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