Authority Update 27/4/18

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

27/04/2018

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    Employment and Pensions
   Adult Social Services    Finance
   Children's Services    Housing
   Commons and Village Greens    Maladministration
   Delivery of Services    Public Health
   Economic Development    Regulatory Services
   Education    Standards

Access to Information

ICO: Kensington and Chelsea Council fined for identifying owners of unoccupied properties in FOI response: the ICO has fined the Council £120,000 after it unlawfully identified 943 people who owned vacant properties in the borough to journalists who had requested statistical information following the Grenfell Tower fire. (16 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

LGSCO: Ombudsman report reminds councils of care charging duties: the Local Government and Social Care Ombudsman has reminded councils that they cannot charge people for the first six weeks of intermediate care, following an investigation into a complaint about North Somerset Council. A family complained after a family member left hospital following an amputation and the Council claimed that the care the relative received was not intermediate care, but ‘enablement’ and so charged the family. The Ombudsman said that simply referring to intermediate care by another name did not allow the council to charge for it. Intermediate care, where people were receiving support with the intention of returning home, could not be charged in this initial period. The council has agreed to apologise and pay the man £722.40 for the six weeks of intermediate care fees he should not have paid to the care home. It has also agreed to reduce the amount the family rightly owe because of the distress caused by wrongly backdating the full cost of care for the period when he should have received intermediate care. (17 April 2018)

House of Commons Library: Adult social care funding (England): this briefing paper examines the key funding pressures facing adult social care services in England and evidence of the impacts of these pressures on social care and health services. The paper explains the additional short-term, ring-fenced funding that has been committed to adult social care between 2016/17 and 2019/20, and outlines concerns about a social care funding gap and financial uncertainty post-2020. (19 April 2018)

House of Commons Library: Changes to the Personal Independence Payment eligibility criteria: on 19 January 2018 the Government announced that it accepted a High Court ruling that controversial changes made in March 2017 to the criteria for the PIP mobility component for people experiencing psychological distress were unlawful. This Commons Library briefing gives background information to the changes that have now been overturned. It will be updated in due course to take account of subsequent developments. In the meantime, this paper gives information on what the latest announcement means for PIP claimants. (19 April 2018)

Healthwatch: Six things you should expect from social care support: people have told Healthwatch that they want to feel listened to and involved in decisions about their social care. This web page lists six things that people should expect from care services, according to new NICE guidelines. (23 April 2018)

Institute of Public Care: Messages on the future of domiciliary care services: this report by Professor John Bolton and Dr Jane Townson offers their thoughts and key messages on the commissioning, design and delivery of outcome based domiciliary care. The authors consider not only the importance of getting the price right for both the public purse and providers but also what kind of service will be right for the future. It highlights the importance of transparency and good working relationships between commissioners and providers. (20 April 2018)

Welsh LGA: £344m needed for social care by 2021-22: warns that current funding arrangements from Welsh Government will not cover the expected increases in cost and demand facing social care. A joint report by WLGA and ADSS to the National Assembly for Wales’ Finance Committee estimates that next year’s additional pressure of £99m in social services will become £344m by 2021-22, due to unavoidable direct and indirect increasing workforce costs coupled by an ageing population in need of social services. (19 April 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

IPSO: Tower Hamlets LBC v The Times (20480/17): the Independent Press Standards Organisation has upheld a complaint against The Times under Clause 1 (Accuracy) of the Editors Code relating to an article headlined "Judge rules child must leave Muslim foster home" published on 30 August 2017. The article under complaint formed part of the newspaper’s coverage of a child’s fostering arrangement. Articles published on 28 and 29 August reported a number of concerns about the cultural appropriateness of the child’s fostering placements, attributed to a social services supervisor, and friends of the child’s mother. The 30 August article reported that following a family court hearing about the child’s care arrangements the previous day, the child was "removed from her Muslim foster parents yesterday and reunited with her family as a judge urged councils to seek ‘culturally matched placements’ for vulnerable children". The council complained that this created a distorted impression of its position in the legal proceedings and the judge’s ruling, implying wrongly that it had been a passive party to the judge’s decision to "remove" the child from her foster carers, when in fact it had actively sought to place the child with her maternal family – and suggesting misleadingly that the judge’s comment about ”culturally matched placements” was intended as a criticism of the Council. It argued that the 30 August coverage breached Clause 1 as it did not include further information about the case that had come to light through the court hearing.
The IPSO Complaints Committee upheld the complaint. The impression given by the article was that the judge’s decision represented a finding against the Council’s assessment of the child’s needs in organising the foster placements. This was a distortion – it was not what the court had decided, or an implication of what the court had decided. The Committee therefore found that the newspaper had failed to take care not to publish distorted information, in breach of Clause 1. It stated that in circumstances where the newspaper had published an article that contained a significant distortion, and not made any offer to correct this, the appropriate remedy was the publication of an adjudication. It required the newspaper to publish the adjudication in full  on p.6 of the paper or further forward. (25 April 2018)

Draft Restriction on the Preparation of Adoption Reports (Amendment) Regulations 2018: these draft regulations, once in force, make consequential amendments to SI 2005/1711 to amend the descriptions of persons prescribed for the purposes of s.94(1) of the Adoption and Children Act 2002 and to update the references to the English and Welsh social work regulators to the Health and Care Professions Council . and Social Care Wales respectively. (16 April 2018)

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

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Commons and Village Greens

R (Lancashire CC) v Secretary of State for Environment, Food and Rural Affairs; R (NHS Property Services Ltd) v Surrey CC [2018] EWCA Civ 721 (CA): the issue in these joined appeals was whether the concept of "statutory incompatibility" defeated an application for the registration of land which was owned by a public body as a town or village green under s.15 of the Commons Act 2006.
The first appeal related to land owned by the council that was adjacent to a school; the second appeal related to land adjacent to a hospital that belonged to a company wholly owned by the Secretary of State for Health. Both sites were registered as village greens under s.15 of the 2006 Act on the basis that a significant number of the inhabitants of the neighbourhood had indulged as of right in lawful sports and pastimes on the land for at least 20 years. The appellants appealed against the registration, arguing that they had each acquired the land for specified statutory purposes (i.e. education and healthcare) and the registration was incompatible with those purposes.
The court held, dismissing the appeals, that on a proper understanding of the concept in the light of the Supreme Court's decision in R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7, there was no "statutory incompatibility" in either of these cases. In each appeal, the court could apply the principles laid down by the Supreme Court without the need for further refinement or enlargement. The principles were the means by which the court resolved a conflict between two statutory regimes, where Parliament itself had not seen fit to do that, so they had to be exercised with care, and only when the need to do so truly arose. They could be applied where there was said to be a conflict between the provisions of the 2006 Act and statutes providing for the functions of public bodies within a given sphere of responsibility; however, there was no blanket exemption from registration under the statutory scheme for land held by public bodies for the purposes of their performance of statutory powers and duties. The circumstances in these cases were very different from those in Newhaven – here, there was no inherent inconsistency between the provisions in the statutory regime under which the land was held and the statutory provisions for registration. The statutory functions on which the Council and NHS Property Services relied, and the statutory purposes underlying them, were general in character and content; in neither case was the land being used for any "defined statutory purposes" with which registration would be incompatible, nor would any statutory purpose relating specifically to this particular land be frustrated. The court would not have come to a different conclusion if the public body owning the land had prevented or challenged the use of the land by the public. Such lack of action might indicate that the public authority landowner had seen nothing inconsistent between the performance of its statutory functions and the recreational use of the land by members of the public within s.15 of the 2006 Act; but that did not affect the exercise of "statutory construction" involved in determining whether a "statutory incompatibility" had truly arisen. (12 April 2018)

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

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Delivery of Services

TUC: What lessons can we learn from Carillion – and what changes do we need to make?: this report looks at the reforms needed to protect public services and improve quality in the wake of Carillion’s collapse three months ago. It identifies the problems that led to Carillion’s collapse and proposes reforms to improve the quality, value and sustainability of public services. The report recommends corporate governance reforms and an improved commissioning process. The TUC proposes a new commissioning model based on public provision of public services, except in cases where it is clearly shown that outsourcing is in the public interest. (16 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

Solar Trade Association: Leading lights – How local authorities are making solar and storage work today: this report demonstrates how councils can lead on solar energy. It includes several ways to boost solar locally that do not require significant officer time or expenditure and makes 10 recommendations to help all councils boost their solar capacity. It includes 26 case studies connected to local authorities which showed solar successes against a backdrop of government cuts to subsidies for solar PV installations since 2015. (20 April 2018)

LGA: Festive cheer – The local impacts of Christmas Markets: this publication presents eight case studies of places where Christmas markets are now a key tourist attraction, and where this has led to increased visitor numbers and economic activity. Whilst anyone who has visited a Christmas market will see the appeal of the variety of stalls on display and the benefits to a local community and place the markets can bring, there is a great deal of planning and hard work required to make the Christmas market a success. The publication highlights key factors which, if implemented well, can lead to a successful Christmas market. (10 April 2018)

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

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Education

DfE: Good estate management for schools – Tools: these tools will help school governing boards to assess their current arrangements and identify where improvements can be made. (25 April 2018)

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

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Employment and Pensions

MHCLG: Local Government Pension Scheme – Amendments to scheme regulations: sets out the Government's response to the May 2016 proposals to amend the Local Government Pension Scheme Regulations 2013 (SI 2013/2356), and the Local Government Pension Scheme (Transitional Provisions, Savings and Amendment) Regulations 2014 (SI 2014/525) so as to implement policies on Fair Deal for staff pensions and freedom and choice in pensions. It states that in view of the range and diversity of issues highlighted in the consultation responses, the Government considers that introducing the draft regulations would not be in the best interests of LGPS administering authorities, members or employers. However, it remains committed to introducing Fair Deal into the LGPS and intend to commence a consultation on new proposals for achieving Fair Deal in the LGPS by the end of the year. It is taking forward a number of  its other proposed changes. (19 April 2018)

Abrahall v Nottingham City Council [2018] EWCA Civ 796 (CA): this case concerned a claim by three groups of employees of the Council for unlawful deduction of wages under Part II of the Employment Rights Act 1996, after the Council decided not to award incremental pay increases to its employees and to implement a two year pay freeze. The employees argued that they had a contractual entitlement to such increases. The Council denied that there was any contractual right to pay progression and contended that the employees must be taken to have agreed to a variation of their contracts of employment that "there would be no right to incremental pay rises", by continuing to work without protest after the announcement of the pay freeze.
The court held that the employees in all three groups enjoyed, at the point of the implementation of the freeze, a contractual right to pay progression, and so that the withholding of the applicable increments was a breach of contract. The employees' conduct in continuing to work did not show that they had accepted the contractual pay-cut. The unions had continued to protest strongly beyond the date of the implementation of the freeze and the employees' continuing to work could be not taken as an unequivocal acceptance of a variation which might have been the subject of industrial action. A decision not to take industrial action was not the same as a decision to accept a variation and one could not conclude from either the unions' failure to take further steps thereafter or the employees' failure to voice any explicit protest, that their position changed. All of the employees were entitled to arrears of pay equivalent to what they would have earned if pay progression had been operated in each of the years in which it was frozen. (19 April 2018)

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

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Finance

HC Housing, Communities and Local Government Committee: Business rates retention: this report concludes that cash for councils from the further retention of business rates should be in addition to and not replace existing sources of revenue, in recognition of cost pressures faced by local authorities. The Committee also calls on the Government to clearly set out the timescale for implementation and the outcome of the Fair Funding Review, warning that uncertainty has resulted in councils making 'pessimistic assumptions' about their budgets which 'could unnecessarily impact on service levels'. The report says the Government's proposed 75% business rate retention in 2020-21 will generate around an extra £6bn for local government, although it is the intention of Ministers that this additional revenue will replace existing grants to local government. As well as calling for the income to be in addition to current revenue, the Committee suggests that the Government must ensure that any new responsibilities placed on councils from further business rate retention are linked to stimulating and promoting economic growth. The Committee also calls for the Government to consider giving groups of local authorities more comprehensive fiscal powers and for greater recognition of the links between local government funding and social care funding while preparing the social care Green Paper. (24 April 2018)

Welsh Government: Tackling avoidance of non-domestic rates in Wales: discusses the range of ideas which could help to tackle avoidance of non-domestic rates. It considers how to balance the needs of local authorities and businesses but also work closely with other agencies and the UK Government to bring about improvements. Any changes to the current arrangements will be carried out in line with the Welsh Government’s Tax Principles of: raising revenue as fairly as possible; clarity, stability and simplicity; collaboration and involvement; and contributing to the Well Being of Future Generations Act goal of creating a more equal Wales. The consultation closes on 27 June 2018. (4 April 2018)

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

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Housing

HC Housing, Communities and Local Government Committee: Private rented sector: this report finds that the most vulnerable tenants need greater legal protections from retaliatory evictions, rent increases and harassment so they are fully empowered to pursue complaints about repairs and maintenance in their homes. It calls for more robust penalties to deal with the very worst landlords and for the Government to give local authorities the power to confiscate properties from those committing the most egregious offences and whose business model relies on the exploitation of vulnerable tenants. (19 April 2018)

MHCLG: Barratt Developments agree to pay fire safety costs: the Housing Secretary has reported that Barratt Developments has said it will pay for fire safety related costs in the Citiscape development in Croydon. The company will cover future and backdated costs relating to employing a fire warden and the removal and replacement of unsafe cladding from this building. Although Barratt is not the current freeholder or managing agent, it has agreed to cover these costs as the original developer of the building. (20 April 2018)

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

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Maladministration

HC Public Administration and Constitutional Affairs Committee: PHSO Scrutiny 2016-17: this report scrutinises the work of the Parliamentary and Health Service Ombudsman (PHSO) in 2016-17. Although it covers the NHS complaints system, the committee also concludes that the Government needs to take action to investigate cases of historic injustice properly and modernise the legislation for all of England's Ombudsman services. It finds that many of the challenges the PHSO faces are made harder by the Government’s slow progress on reforms to the complaints system. The Committee calls on the Government to accelerate the draft Public Service Ombudsman Bill that modernises the Ombudsman services by setting up a joint committee to conduct the pre-legislative scrutiny of the draft Bill as soon as possible. In its response to this report, the Government should provide the PHSO and LGSCO with a date by which it intends to have the new legislation in place, to allow them to plan with some confidence. (24 April 2018)

LGSCO: Corporate strategy 2018 to 2021: details the work the Ombudsman will be doing over the next three years to become an ‘exemplary Ombudsman service’, working on the already strong foundations laid in the preceding years. It will focus on how it can add value through its recommendations for wider service improvements and sharing learning from its investigations. (18 April 2018)

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

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Public Health

DHSC: New support to help children living with alcohol-dependent parents: the Health Secretary has announced package of measures, backed by £6m joint funding from DHSC and DWP, to help an estimated 200,000 children in England living with alcohol-dependent parents. The funding includes: a £4.5m innovation fund for local authorities to develop plans that improve outcomes for children of alcohol-dependent parents; and £1m to fund national capacity building by non-governmental organisations. Local authorities will be invited to bid for funding by coming up with innovative solutions based on local need, with priority given to areas where more children are affected. Public Health England will be responsible for working with the funded areas to monitor progress. (23 April 2018)

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

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Regulatory Services

Summers v Richmond upon Thames LBC [2018] EWHC 782 (Admin) (Admin Ct): S applied under s.66 of the Anti-social Behaviour, Crime and Policing Act 2014 for statutory review of a Public Spaces Protection Order (PSPO) made by the Council. The PSPO related to dog control within the Council's open spaces and highways, and set out various prohibitions and requirements designed to regulate the behaviour of dog-walkers in Richmond, such as picking up dog faeces, keeping dogs on leads in certain areas, and exclusions from play areas. S sought an order quashing provisions within the PSPO relating to the maximum number of dogs permitted to be walked by one person and elaborating on what was meant by keeping a dog under "proper control", contending that these were unlawful and ultra vires. She also challenged parts of the wording of exemptions set out in the PSPO relating to assistance dogs, as being unfairly discriminatory.
The court held that the level of scrutiny to be applied to a statutory review of a PSPO under s.66 was the standard level of Wednesbury review, namely: "Could a decision maker acting reasonably have reached this decision?" The court was satisfied that in setting a four-dog limit, subject to a system of licences to be reviewed in a year's time, the Council had acted reasonably in deciding that this was a prohibition which it was reasonable to impose in accordance with s.59(5) of the 2014 Act. The Council's decision to include a definition of proper control as part of the requirement was reasonable and in accordance with the provisions of s.59(5). However, the court did find that two parts of the definition of "proper control" in the PSPO were "objectionable" – the restrictions against dogs causing an "annoyance to any other person or animal", or dogs causing "damage to any Council structure, equipment, tree, plant, turf or other Council property" were not problems that justified a requirement specifically to address it, over and above the requirement that a dog be kept under proper control (as defined).
The court also dismissed the challenge regarding the exemptions, ruling that it did not have jurisdiction to investigate a claim for breach of s.29 of the Equality Act 2010. While S had standing, in principle, to seek statutory review in the High Court of a PSPO on whatever grounds might fall within s.66(2), the court did not have jurisdiction to investigate a breach of s.29. Nor had any proper case been made for any breach of the s.149 public sector equality duty.  (12 April 2018)

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

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Standards

Local Government Lawyer: Judge hears case over councillor behaviour, employee grievances and codes of conduct: reports that Cllr Elizabeth Harvey has applied for judicial review of Ledbury Town Council's decision to impose sanctions for breach of its Code of Conduct after Herefordshire CC had found no breach by her or another councillor. The issue before the court was whether it was lawful for parish councils to use local grievance procedures to investigate and determine complaints and to ultimately impose measures against councillors, or whether a councillor’s conduct must always and only be considered according to the terms of the Localism Act 2011. The Town Council decided that Cllr Harvey should not sit on any committees, sub-committees, panels or working groups or represent the council on any outside body, and that all communications between her and its clerk and deputy clerk should go through the mayor. It also imposed sanctions on a fellow councillor. It claimed that it had powers to determine complaints about councillors through their grievance procedure instead of through the Code of Conduct procedure set out in the Localism Act 2011. Judgment has been reserved. (18 April 2018)

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

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