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    Government Policy
   Business Rates     Housing
   Children's Services    Parks and Open Spaces
   Community Rights    Planning
   Delivery of Services    Procurement
   Economic Development    Public Health
   Education    Regulatory Services
   Environmental Protection    Standards
   Finance    Structural Reorganisation
   Fire and Rescue Authorities    Transport

Access to Information

Data Protection Act 2018: this Act has received Royal Assent and comes into force on 25 May 2018. The Act aims to modernise data protection laws to ensure they are effective in the years to come. It repeals the Data Protection Act 1998 and updates data protection laws in the UK; it sits alongside the EU General Data Protection Regulation (GDPR) which takes effect on the same date. The Act implements the EU Law Enforcement Directive, as well as extending domestic data protection laws to areas which are not covered by the GDPR. It requires increased transparency and accountability from organisations, and stronger rules to protect against theft and loss of data with serious sanctions and fines for those that deliberately or negligently misuse data. (23 May 2018)

Hammersmith and Fulham LBC v Information Commissioner & Ashe [2018] UKFTT 2017/0198 (FTT GRC): the Council refused A's information requests regarding parking charges, on the grounds that the requests were vexatious under s.14(1) FOIA 2000. The Information Commissioner accepted that preparing 100 emails for disclosure would be a burden, but that A’s request was comparable to the average request received by public authorities; redactions would be straightforward, and the Commissioner rejected the suggestion that A was in any way unreasonably persistent or obsessive. The Commissioner ordered the Council to reconsider the request and issue a fresh response within 35 working days. She noted the considerable delay in the Council concluding their internal review, and warned against this being permitted to happen again. The Council appealed, contending that the Commissioner had applied the wrong test for vexatiousness and had reached the wrong conclusion on the public interest of the requested information.
The tribunal held, dismissing the appeal and upholding the decision notice, that a clear and substantial public interest in the subject matter of the request had been established. The request had serious motive, and had value and serious purpose. The request was not vexatious and the Commissioner had not erred in law. (14 May 2018)

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

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Adult Social Services

LGA: Adult social care – a national or a local service? This is the second think piece in the LGA's series 'Towards a sustainable adult social care and support system'. It contains articles by five experts who each have a distinct and different vantage point from which to observe adult social care but are united around the core idea that responding to the needs of local people requires a response that is local, too. (15 May 2018)

R (Wolverhampton Council) v South Worcestershire CCG & Shropshire CCG [2018] EWHC 1136 (Admin): this case concerned which of the three parties should pay for the care of a patient, VG, who had very considerable care and health needs. The Council had been paying for VG's care but contended that the relevant CCG should meet the costs. The first defendant, SW CCG, argued that they had had no significant involvement in the obtaining of VG's care at all, that that was the work of the Council at the time when the second defendant, Shropshire CCG, was the relevant CCG. They also point out that Shropshire repeatedly acknowledged that the responsibility was theirs. Shropshire said that they could not be the responsible party because to have funded VG's care would have been ultra vires their statutory powers. The court ruled "with some considerable regret" that, as a matter of law, Shropshire had no power to fund VG's care at a residential specialist home that was outside its area, and therefore could not be acting unlawfully in declining so to do. However, the judge considered that the moral "merits" of the case lay with the Council who had endeavoured throughout to do the right thing by VG, and with SW CCG which had had little or no involvement in the making of the arrangements now being considered.
The judge commented that it was most regrettable that this dispute was not resolved without the parties having to come to court. Whilst it was inevitable that on occasions those advising local authorities and CCGs would take different views on the complicated legal structures governing their operation, the NHS and the LGA ought urgently to work together to devise a mechanism by which such disputes can be resolved without resort to expensive legal proceedings. (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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Business Rates

Non-Domestic Rating (Nursery Grounds) Bill: this Bill has been introduced into the Commons and received its First Reading. The Bill amends the Local Government Finance Act 1988 to provide that both agricultural land and buildings at plant nursery grounds are exempt from business rates. A plant nursery is defined as a property where small plants or tress are propagated or sown in their initial stages of growth with a view to selling them to someone else for rearing onto their mature state. The changes do not apply to garden centres which will continue to be rateable. The amendments will apply retrospectively, with effect from 1 April 2015. Any plant nurseries charged business rates from this date will be eligible to apply for a refund.
See also MHCLG's factsheet on the Bill. (23 May 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

DfE: Children's services omnibus – Wave 3 research report: this report presents the findings from the third wave of the DfE Children’s Services Omnibus Survey. The survey explored senior council leaders’ perceptions on, and activities relating to, a range of policy areas, including: children’s social care; early years and childcare provision in authorities; and services for children and young people with special educational needs and disabilities. (17 May 2018)

DfE: Revised statutory direction to Worcestershire County Council: the Secretary of State has issued a revised direction that requires the Council to work with the Commissioner towards the establishment of a wholly-owned council company for the delivery of children’s social care services in Worcestershire. It replaces the previous direction issued in September 2017. (25 May 2018)

LGSCO: Firm foundations – complaints about council support and advice for special guardians: this report highlights the variety of problems faced by special guardians in seven out of 10 complaints which the Ombudsman upholds about councils on this subject. Common faults include councils not giving the right advice, including about the financial support available, before people become special guardians, leaving them to make uninformed decisions about the long-term implications. The Ombudsman is also seeing problems with councils not getting proper support plans in place, leaving guardians unclear about the support available, and for how long after they become guardians. Other problems the Ombudsman sees include councils incorrectly calculating, changing or cutting special guardianship allowances.
See also the LGO's report into North Tyneside Council, which found that the Council had not been paying special guardians the level of financial support they were entitled to over a number of years. (17 May 2018)

Welsh Government: Analysis of outcomes for children and young people 4 to 5 years after a final Care Order: this study explores the placement of children in care in Wales, how these compare with the outcomes aspired to in their Care Plan and the key success factors associated with positive placements. The findings show that most children and young people in care in Wales are doing well, with over three quarters experiencing a high level of placement stability. (15 May 2018)

R (KI) v Brent LBC [2018] EWHC 1068 (Admin) (Admin Ct): KI applied for judicial review of the Council's refusal to recognise him as a child in need requiring accommodation under s. 20 of the Children Act 1989 and, subsequently, on his attaining the age of 18, to recognise his status as a "former relevant child". The court granted KI's application. Prior to ruling on the case, the judge expressed concerns that the Council had not fully complied with its duty of candour and questioned whether the court had been given an accurate account of the material facts. The Council did not dispute that it had not provided an accurate picture of the material facts and it explained in its written submissions that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty had been complied with. The court considered that the Council had not properly discharged its duty, which was of particular concern given the nature of the claim and KI's vulnerable status. The judge emphasised the importance of the duty of candour in the case of vulnerable children and young people and stated that local authorities charged with these duties should have in place procedures to ensure that that they did not fall into similar errors, which included the lack of access by the legal department to the social services records. The judge found the Council's lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing; there could be no excuse for this poor compliance given previous decisions which emphasised the "very high duty on public authority respondents". The court's overriding concern was to ensure that the interests of children and young persons had been properly protected; the question of inconvenience and costs to the authorities concerned in reporting and accounting for their decisions and actions could not be permitted to take precedence or to provide an excuse for a failure to comply. It was the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority were aware of the duty of candour and complied with it. (10 May 2018)

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

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Community Rights

Banner Homes Ltd v St Albans DC [2018] EWCA Civ 1187 (CA): BH appealed against the Council's decision to list a field that it owned as an "asset of community value" pursuant to s.88 of the Localism Act 2011. The field had been used by the local community for more than 40 years for various peaceful and beneficial recreational activities. BH had not given express permission for the local community to use the field beyond the public footpaths; but it was well-aware of this use and had taken no steps to stop it. After the field was listed, BH asked for an oral review. It then fenced off the field so that the public could only access the footpaths and erected notices stating "private land no unauthorised access". The Tribunal applied the principle of in bonam partem to the construction of s.88 and so construed that trespassory, and therefore unlawful, use of the land was a qualifying use for the purposes of listing the land as an asset of community value. It was agreed that using the field beyond the public footpaths for recreational activities constituted a trespass; the single issue in this appeal was whether such unlawful use could constitute "actual use" for the purpose of listing an asset as an "asset of community value" under s.88. This turned on a short point of statutory construction, namely whether s.88 of the 2011 Act should be construed in accordance with the in bonam partem principle. BH argued that Parliament was not to be taken to have intended unlawful conduct to be rewarded by the grant of a right or benefit, as would occur here if the listing decision were to be maintained.
The court dismissed BH's appeal. It rejected BH's argument that any taint of unlawfulness, no matter how trivial or technical, in the use of the asset in question meant that it could not be listed under the Scheme as an asset of community value. Where public policy was invoked as an aid to statutory construction, the approach was a more open textured one and regard had to be had to the context and to the nexus between the conduct and the particular statutory provision. Whichever canon of statutory construction was adopted, the legislative intention was plainly that "actual use", in this statutory context, meant what it said. The Scheme did not enable the putative wrong doer to acquire private rights. If a nomination was successful, then subject to conditions and for a limited time, a "community interest group" – which may have had nothing to do with the unlawful conduct in question - was merely entitled to ask that it be treated as a potential bidder when an asset of community value was put up for sale. It would be an unfortunate consequence of the 2011 Act if other landowners likewise were to feel constrained to restrict public access to their land but that was no reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act. (23 May 2018)

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

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Delivery of Services

HC Business, Energy and Industrial Strategy and Work and Pensions Committees: Carillion: the Committees have published their joint final report of their inquiry into the spectacular collapse of Carillion. They conclude that Government has "lacked the decisiveness or bravery" to address the failures in corporate regulation that allowed Carillion to become a "giant and unsustainable corporate time bomb". The report is highly critical of the company's directors, its external auditors and financial advisers, and also the regulatory bodies. (16 May 2018)

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

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Economic Development

MHCLG: Coastal Revival Fund – An invitation to apply for funding: inviting bids from local communities, charities and councils to receive up to £50,000 funding from the £1m Coastal Revival Fund for projects to restore coastal landmarks which have fallen into disrepair. The fund provides grants to at-risk coastal heritage sites to fund repairs and restoration, or to support large scale projects to see them through to completion. The closing date for bids to be submitted is 5 July 2018. (17 May 2018)

LGA: Revitalising town centres – A handbook for council leadership: this handbook gives guidance on how to approach the revitalisation of town and city centres by delivering long-term impacts and using broad principles that can be tailored to meet local needs. It is intended to provide a high level overview to guide councils in taking a strategic and evidence-based approach. The handbook contains suggestions of further reading, helpful resources and examples of good practice that can be accessed through a more extensive and detailed online toolkit. (14 May 2018)

MHCLG: Government confirms responsibilities of new Borderlands Champion: announces that John Stevenson MP will be the Borderlands Deal Champion. His role will be to help drive forward the Deal and encourage collaboration between local authorities, LEPs and local businesses in Carlisle, Cumbria and Northumberland. In addition, he will liaise with the Secretary of State for Scotland regarding the South of Scotland. (25 May 2018)

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

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DfE: Keeping children safe in education: revised statutory guidance to schools and colleges on their legal duties to safeguard and promote the welfare of children and young people under the age of 18. It includes additional advice to help school and college staff deal with allegations of child-on-child sexual violence and sexual harassment. The changes include how to report or act on safeguarding concerns, outlining that staff should take immediate action and speak to the designated safeguard lead if they have a concern about a child’s wellbeing. The new guidance applies from 3 September 2018. (17 May 2018)

DfE: Sexual violence and sexual harassment between children in schools and colleges: revised departmental advice on how to minimise the risk of sexual violence and sexual harassment occurring and what to do when it does occur, or is alleged to have occurred. (17 May 2018)

DfE: Charging for school activities: updated guidance for schools and local authorities on their policies on charging and remission for school activities and school visits under ss.449 - 462 of the Education Act 1996. (15 May 2018)

DfE: New standards to support pupils to reach their potential: announces new pre-key stage standards for schools with pupils working below the national curriculum, to support children from disadvantaged backgrounds and those with special educational needs and disabilities to transition onto the national curriculum. (24 May 2018)

DfE: Golden Hello guidance for local authorities, 1 April 2018 to 30 September 2019: the Golden Hello is a financial incentive for teachers of priority subjects in a maintained secondary school, a maintained or non-maintained special school. This revised guidance outlines the eligibility criteria for the incentive and explains how the DfE will reimburse local education authorities for the scheme from 1 April 2018 to 30 September 2019. Note that the scheme has now closed for all trainees starting their initial teacher training in the academic year 2011/12 or later. The DfE has now announced that any remaining eligible teachers must submit any outstanding Golden Hello claims to academies or local education authorities on or before 30 September 2019. (16 May 2018)

DfE: Estimating the number of additional free school meal pupils under Universal Credit: this technical note explains the methodology and analysis behind the DfE’s estimates of the number of pupils eligible for free school meals under the new system. (16 May 2018)

DfE: Delayed school admissions for summer born pupils: guidance on how school admission authorities must operate to provide school admissions for summer-born children. (17 May 2018)

County Councils Network: Councils warn that yearly overspends on special education are ‘unsustainable’: raises concerns about councils' overspend on their high-needs block, resulting from high demand, that has led to councils requesting to move money from the generic schools grant towards meeting their legal obligations to provide services for children with special education needs. The CCN highlights that this is neither a ‘desirable’ nor ‘sustainable’ position to be in and have written to the Education Secretary Damian Hinds, calling for an urgent meeting. (14 May 2018)

DfE: Schools to get expert advice from leading business advisers: DfE has also announced that schools will be able to get bespoke business support from leading business advisers on how to maximise their resources and budgets. This is part of a new pilot run by DfE with the Institute of School Business Leadership. Following the visit, each school is expected to develop a plan which will set out how it intends to improve. (17 May 2018)

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

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Environmental Protection

DEFRA: Air quality – Draft Clean Air Strategy 2018: seeks views on the Government's new Clean Air Strategy that outlines its proposed actions to reduce air pollution and its effects. The goal is to halve the number of people living in locations where concentrations of particulate matter are above the WHO guideline limit of 10 µg/m3 by 2025. The Government will, at the "earliest opportunity", introduce new clean air legislation that will replace the existing patchwork with a single coherent legislative framework for local authorities to tackle air quality and bring the law up to date with the evolution of structures at sub-national level so that accountability for air quality sits in the right place. The plans include updating the Local Air Quality Management framework (LAQM) to give local authorities new legal powers to take decisive action in the most polluted areas, whilst minimising minimise bureaucracy and reporting burdens. It will update outmoded legislation on 'dark smoke' from chimneys and underused provisions on Smoke Control Areas to bring them into the 21st century with more flexible, proportionate enforcement powers. Finally, it will create a new statutory framework for Clean Air Zones (CAZ) to simplify current overlapping frameworks of CAZ, AQMA and Smoke Control Areas to create a single approach covering all sources of air pollution. The Government will also publish guidance for local authorities later this year, explaining how cumulative impacts of nitrogen deposition on natural habitats should be mitigated and assessed through the planning system. The consultation closes on 14 August 2018.
DEFRA has also published a policy paper Air quality: explaining air pollution – at a glance that sets out what air pollution is, where it comes from, and what can be done to reduce it.
PHE has published an air pollution tool to help local authorities estimate the burden of air pollution on the health care system.  (22 May 2018)

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

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Transport Levying Bodies (Amendment) Regulations 2018 (SI 2018/641): these regulations, which come into on 1 October 2018, amend reg.3 of the Transport Levying Bodies Regulations 1992 (SI 19992/2789) so as to include Cambridgeshire and Peterborough Combined Authority in the list of authorities to which those Regulations apply. This enables the Combined Authority to issue a levy in order to meet the costs of carrying out its transport functions. This transport levy will be funded by Cambridgeshire CC and Peterborough City Council. (23 May 2018)

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

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Fire and Rescue Authorities

Home Office: Government announces new standards for fire and rescue services: announces the creation of a Fire Standards Board to oversee professional standards across the fire and rescue sector. The Board will look at issues such as: independent leadership and development; the identification and mitigation of risks; and fire prevention and the approach to protecting the public from other emergencies. It will also be responsible for agreeing priorities in response to the recently published Hackitt review, the Grenfell Tower inquiry, and other emerging issues facing fire and rescue services. (22 May 2018)

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

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Re Buick (Judicial Review) [2018] NIQB 43 (NI QBD): B applied for judicial review of the Department for Infrastructure's decision to grant planning permission for a major waste disposal incinerator. The application had been decided by the Permanent Secretary of the Department in the absence of a Minister with responsibility for the Department following the collapse of power sharing in Northern Ireland. The key question for the court was whether the decision could lawfully be taken by a Senior Civil Servant given the political impasse.
The court held, granting the application, that the Department had decision making functions conferred upon it but it could not be entirely detached from the Minister who headed it up, and the Minister remained in overall charge. The provisions of the Departments (Northern Ireland) Order 1999 were clear and the language was expressed in mandatory terms by the word "shall". The Department was asking the court to read Art.4(1) of the 1999 Order to mean that "direction and control" only applied when a Minister was in place but that  argument offended the ordinary and natural meaning of the provision; nor was it in keeping with the legislative context namely the Northern Ireland Act 1998 which formed the basis for government in Northern Ireland and which provided for ministerial oversight. Parliament could not have intended that such decision making would continue in Northern Ireland in the absence of Ministers without the protection of democratic accountability. The Department's interpretation would mean that civil servants in Northern Ireland could effectively take major policy decisions such as this one for an indefinite period. This was not a purdah situation where there was a short gap; rather there was a protracted vacuum in existence pending the restoration of executive and legislative institutions or direct rule. Article 4(3) of the 1999 Order provided legal authority to the Minister and  was clearly utilised in this case as the Minister had embarked upon the decision making process. It was unfortunate that the entire programme for government was on hold whilst the current impasse continued but the exigencies of the current situation were not an adequate justification for the course that had been taken. The commendable motivation and aims could not override the proper construction of the statutory regime.
The Permanent Secretary had no doubt acted in good faith but decisions had to be taken in a lawful manner otherwise the whole structure of government was undermined. This was clearly a decision which the Minister intended to take and should have taken pursuant to Art.4(3) of the 1999 Order. The court would not interpret the 1999 Order in a wide and open ended manner. (14 May 2018)

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

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Government Policy

Ministry of Housing, Communities and Local Government single departmental plan: MHCLG has published an updated Departmental Plan setting out its seven objectives and how it will achieve them. (23 May 2018)

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

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MHCLG: Government announces it will fully fund unsafe cladding removal in social housing: announces that the Government will pay local authorities and housing associations their reasonable costs of removing and replacing unsafe cladding from buildings which they own, in the wake of the Grenfell Tower tragedy. The Government will also continue to provide financial flexibilities to councils for other essential fire safety measures. and is directing local authorities to take cladding-related issues into account when carrying out reviews of housing conditions in their areas. (16 May 2018)

MHCLG: Building Safety Programme – Secretary of State direction to local housing authorities: to support the identification of high-rise buildings with potentially unsafe cladding, the Secretary of State has made a direction under s3(3) of the Housing Act 2004 to all local housing authorities in England. The direction instructs all local housing authorities to pay particular regard to cladding related issues when reviewing housing in their areas. They must also identify and notify MHCLG of all high-rise residential buildings over 18m in their area with a view to identifying any action they should take in accordance with their duties under the Act. (17 May 2018)

LGA: Housing Advisers Programme 2018/19 – Prospectus: invites bids from English local authorities for funding from the Housing Advisers Programme towards the provision of an independent adviser to offer bespoke expert support to local authorities undertaking a specific housing project. The local authority will lead on the project, with the adviser providing expert support. The programme will fund adviser support for up to £14,000 to each council, calculated on the basis of 20 days at a set day rate of £700. It will also consider supporting a smaller number of larger projects, by funding adviser support for up to £28,000 for these projects, calculated on the basis of 40 days. Projects must be completed by March 2019. The closing date for bids is 26 June 2018. (15 May 2018)

Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 (SI 2018/616): these regulations, which come into force on 1 October 2018, amend Sch.4 to the Housing Act 2004 to insert two new two new conditions which local housing authorities must include when granting new or renewal HMO licences from commencement. The new conditions relate to the size of rooms available as sleeping accommodation and their maximum occupancy, and compliance with local housing authority household waste storage and disposal schemes. (23 May 2018)

R (McDonagh) v Enfield LBC [2018] EWHC 1287 (Admin) (Admin Ct): McD, an Irish national who had left Ireland to escape an abusive marriage, claimed damages under Art.8 ECHR for the Council's alleged breaches of its statutory duty under Part VII of the Housing Act 1996 to determine her application for housing assistance and provide interim accommodation for herself and her three children. The Council conceded that they had been in breach of statutory duty under s.188(1) from 31 July 2017 when they expressly acknowledged acceptance of a homelessness application but no interim accommodation was secured after that date up to when the duty ceased in February 2018.
The court held that there was little doubt that the Council did have reason to believe that McD might be homeless, and so the s.188(1) interim duty applied, under which Council had a duty to secure that accommodation was available for McD pending a decision as to the duty owed to her under the later provisions of Part VII. The duty was not qualified and could not be deferred. The Council did not take all reasonable steps to meet its s.188(1) statutory duty to secure the availability of suitable accommodation. However, breaches of statutory duty under Part VII of the Housing Act 1996 did not, by themselves, constitute a contravention of Art.8 ECHR. Having considered all the circumstances of the present case, the court ruled that the Council had not acted incompatibly with Art.8 and McD was not entitled to damages under the Human Rights Act. (24 May 2018)

Turner v Enfield LBC (Unreported, QBD): T appealed against a possession order relating to the three-bedroomed council house that she lived in with her son. Her mother had succeeded to the tenancy on the death of her husband, but when the mother died T had no succession rights. The Council served notice to quit and then commenced possession proceedings. It offered her a ground floor flat as alternative accommodation, but T refused this offer as both she and her son had many medical issues.
The court held, dismissing T's appeal, that the possession order necessary and proportionate. There had been no defect in the judge's approach and the comment that there were advantages to an elderly lady moving to a ground floor flat did not overlook the fact that T did not want to move. The judge was also correct to hold that the local authority's interest prevailed and that it had all been done within the framework of Art.8 ECHR. Medical issues coupled with long residence would not defeat a local authority's claim where there was no succession. It was for the Council to decide according to policy how to allocate its housing stock and it had been entitled to say that the house could be allocated to someone with a greater need for it.  (25 May 2018)
The judgment is available on Lawtel (subscription required).

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

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Parks and Open Spaces

Fields in Trust: Revaluing parks and green spaces – Measuring their economic and wellbeing value to individuals: this research provides a robust economic valuation of parks and green spaces in the UK as well as valuing improvements in health and wellbeing associated with their frequent use. This is the first research study on parks and green spaces to use HM Treasury-approved welfare weighting methodology, allowing for more informed evidence-based policy decisions. It demonstrates that parks and green spaces across the UK provide people with over £34bn of health and wellbeing benefits. It calculates that parks provide a total economic value to each person in the UK of just over £30 per year, along with NHS savings of at least £111m per year; it also found that the individual figure of the value of parks and green spaces is £974 per person. (7 May 2018)

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

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MHCLG: Shale exploration – Support for mineral planning authorities: Invitation to bid: invites bids from mineral planning authorities for funding to help them with the processing and consideration of shale planning applications. The Government recognises shale represents a new area for mineral planning authorities and that it will present complex and challenging issues for them in their processing of shale planning applications. This prospectus sets out how mineral planning authorities can bid for funding to improve their capacity and capability to deal with shale planning applications. Bids must be made within 28 days of defined trigger points in the planning application process, up to 2 February 2020. (17 May 2018)

R (McCarthy and Stone Retirement Lifestyles Ltd) v Greater London Authority [2018] EWHC 1202 (Admin) (Admin Ct): the claimants, who were developers of specialist housing for the elderly, applied for judicial review of the Mayor of London's Supplementary Planning Guidance (SPG) that concerned how affordable housing developments or contributions in lieu should be negotiated on the grant of planning permission for housing developments. The SPG allowed a fast track route for developments that met or exceeded a 35% affordable housing provision. The claimants argued that their specialist developments were  less able to compete with general house builders in site acquisition, and could never meet the 35% threshold so that they would always have to go through the expensive viability-tested route procedure. They claimed that the SPG was unlawful as it contained policy, which could only be produced in the spatial strategy, i.e. the development plan.
The court held, allowing the application in part, that though it was for the court to decide whether a document constituted a policy which must or must not be in the spatial strategy, s.334 of the Greater London Authority Act 1999 still left considerable room for the court to respect the plan-maker's judgement on what was to receive the weight of the development plan, or was too detailed for a spatial strategy, where that was the basis for the decision. The basis upon which a ruling was made, which turned on the appropriateness of the level of detail for inclusion in a development plan, or the desirability of that level having the force of s.38(6) behind it, had to respect the legitimacy of differing plan-maker's judgements about where that line should be drawn, and had to recognise the potential role of the inspector, in setting appropriate levels of detail for a statutory development plan. So even if the SPG were policy when issued, its production was not unlawful on that account. Nor did conflict with development plan policy of itself make a non-statutory document unlawful. The 35% threshold was not unlawful – the Mayor was entitled to seek to introduce incentives for developers to increase very substantially the offer of affordable housing, so as to avoid that time and expense, and he was entitled to deal with delayed starts and longer time scale developments by way of re-appraisals. However, the SPG was inconsistent with the London Plan in this respect and to that extent was not lawful.  However, the status of SPG mattered little now that the draft London Plan had been published and consulted upon, and the issue about the status and consistency of the SPG was not one of continuing importance.  (23 May 2018)

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

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CCS: Procurement Policy Note PPN 02/18 Changes to data protection legislation & General Data Protection Regulation: this PPN contains enhanced guidance and clarifications on a number of key areas regarding GDPR compliance, with updated standard generic clauses. It replaces PPN 03/17. The note applies to all Central Government Departments, their Executive Agencies and Non Departmental Public Bodies. Other public bodies will also be subject to the new Data Protection Legislation and may wish to apply the approaches set out in this note. (18 May 2018)

Procurement Byte on Supply Chain (3 of 3): The Reporting on Payment Practices and Performance Regulations 2017: we have published the third article in our series on Supply Chain. This considers the requirements of recent regulations aimed at ensuring the transparency of large companies in their payment practices and performance. This legislation has not been particularly well publicised but has the potential to impact on public procurement in light of the general developments in supply chain transparency discussed in our first two Bytes and in the context of the recent news around Carillion. (17 May 2018)

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

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Public Health

NICE: Promoting health and preventing premature mortality in black, Asian and other minority ethnic groups (QS167): this quality standard draws attention to some of the specific areas of inequality for people from black, Asian and other minority ethnic groups, such as increased health risks, poor access to and experience of services, and worse health outcomes. It aims to support public authorities in considering their equality duty when designing, planning and delivering services. Any actions taken to achieve the statements should be tailored to the ethnic profile of the local population, and particular consideration should be given to disadvantaged or excluded groups and ethnic groups with poor outcomes. (16 May 2018)

Mayor of London: Draft London Food Strategy: seeks views on a new draft Food Strategy that sets out the Mayor's plans for every Londoner to have access to healthy, affordable and good food, regardless of where they live or their income. It outlines the Mayor's ambitious vision for good food in the capital, with six priority action areas. The consultation closes on 5 July 2018. (10 May 2018)

PHE: Problem parental drug and alcohol use – A toolkit for local authorities: this toolkit has been developed for commissioners of alcohol and drug services and will also be useful to commissioners of children and family services. It helps commissioners to understand the extent of problem parental alcohol and drug use in their area and how this can impact on children aged between 0 and 18 in the same household.
PHE is also inviting local authorities to bid for a share of £4.5m joint funding, aimed at improving the support services for children of dependent drinkers and alcohol dependent parents. The closing date for applications is 17 July 2018. (22 May 2018)

Welsh Government: Hospital grounds, school grounds and playgrounds to be smoke-free in Wales by summer 2019: announces that the Welsh Government is to introduce changes to the smoke-free legislation under the Public Health (Wales) Act 2017. The changes will make it illegal to smoke in hospital grounds, school grounds and playgrounds, with legal backing for fines to be issued to smokers breaking the rules. (25 May 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: Independent Review of Building Regulations and Fire Safety – Final report: the Independent Review of Building Regulations and Fire Safety, by Dame Judith Hackitt, examined building and fire safety regulations and related compliance and enforcement, with a focus on high rise residential buildings. This final report concludes that significant systemic reform is needed spanning every aspect of the life of a high-rise building – from design to construction to ownership and on-going management. Regulations and guidance are misunderstood, and oversight and enforcement are inadequate. A new regulatory framework for higher-risk residential buildings is required to improve building safety and ensure that residents are safe. The recommendations set out a new regulatory system which will improve standards for both new and existing buildings. At the heart of the new system will be a requirement for the construction industry to take responsibility for the delivery of safe buildings, rather than looking to others to tell them what is or is not acceptable.
The Government has accepted the report's recommendations, and has stated that it will lead fundamental reform of the building regulatory system, with strong sanctions for those who fail to comply. It will also consult on banning the use of combustible materials in cladding systems on high-rise residential buildings. (17 May 2018)

Jones v Birmingham City Council [2018] EWCA Civ 1189 (CA): this case concerned Part 4 of the Policing and Crime Act 2009 that introduced a new remedy enabling the county court or the High Court to grant an injunction for the purpose of preventing gang-related violence. Section 51 of the Serious Crime Act 2015 extended this to gang-related drug-dealing activity. Birmingham City Council  obtained an injunction against J and 17 other defendants, all of whom were said to be members of a gang. J appealed to the High Court, contending that proceedings under this legislation, while civil, were in respect of a criminal charge and therefore attracted the provisions of Article 6 ECHR. The court rejected the challenge of incompatibility.
The court held, dismissing J's appeal, that Parliament was entitled to address the very real social harm which gangs and other anti-social behaviour had been inflicting on society in the way in which this legislation sought to do. Built in to each legislative scheme were safeguards intended to address the impact on individuals. The legislation did not trigger the bringing of a criminal charge for the purposes of Art.6 ECHR; nor was the requirement that the court address the issues on the balance of probability a breach of Art.6. (23 May 2018)

R (Uber London Ltd) v Transport for London [2018] EWCA Civ 1213 (CA): TfL appealed against the High Court's order quashing reg.9(11) of the Private Hire Vehicles (London) (Operators' Licences) Regulations 2000, which imposed a requirement on PHV operators in London to provide a "listening" service to the passenger. The judge concluded that this imposition by TfL of a "Voice Contact Requirement" constituted a disproportionate interference with the rights to freedom of establishment of PHV operators, contrary to Arts. 49 and 54 TFEU.
The court held, allowing the appeal, that the judge had erred in relying on the distinction between an emergency and a non-emergency contact facility. The court accepted TfL's argument that it was necessary and proportionate to require operators to provide a voice contact facility in the case of genuine emergencies. TfL would have had some difficulty and monitoring applying Uber's suggested 'hot line' for emergencies ("Emergency Telephone Alternative") and so was entitled to conclude that it was not practicable. The costs were not disproportionate to the public safety, equality and customer convenience benefits and so the Voice Contact Requirement satisfied the proportionality test. It was not unlawful that TfL had not imposed a similar requirement on taxis as taxis were governed by a completely different regulatory regime. a key distinction between PHVs and taxis was the lack of a person in the position of an operator in respect of the latter. It would be an improper use of TfL's licensing power to impose conditions on taxi licences in order indirectly to regulate taxi booking agents, where TfL did not have the power to regulate the booking agent directly. (25 May 2018)

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

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R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin): Cllr H applied for judicial review of the Town Council's decision to impose sanctions under its grievance procedures following complaints of bullying, intimidation and harassment of staff. The Town Council decided that Cllr H 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. The Town Council reviewed the restrictions after a year, in Cllr H's absence, and decided that the restrictions should continue and be expanded to prevent her from communicating with all staff. The County Council then carried out a separate standards investigation which found no breach by her of the Town Council's Code of Conduct. Cllr H contended that the Town Council's decision was ultra vires as a councillor’s conduct must always and only be considered under the Code of Conduct procedures set out in the Localism Act 2011. Cllr H also claimed that the decision was substantively and procedurally unfair. The Town Council claimed that it had powers to determine complaints about councillors through their grievance procedure and under s.111 LGA 1972.
The court held, granting the application, that the Town Council's decision to continue and enlarge the prohibitions must be quashed and Cllr H was entitled to declaratory relief. There was no general power to run a grievance procedure process in tandem with or as an alternative to the Code of Conduct process envisaged by the 2011 Act, as that would be contrary to the intention of Parliament. It was clear that Parliament intended the 2011 Act to change the regime which was previously in operation. When looking at the case law, cases prior to the 2011 Act operated in the context of a different statutory world and it was important not to strain the meaning of those decisions too far. R (Lashley) v Broadland DC [2001] EWCA Civ 179 established that councils had, prior to the 2011 Act, a power to investigate misconduct substantively but it could not establish what the power was after that date. The existence of such a rump power was not a given, and if it existed did not necessitate the finding of a full tandem system. The ability to exclude a parish councillor was no wider than the statutory provision in relation to such councillors and anything which went wider than this would, even before the 2011 Act, be ultra vires.
On the question whether  a "qualifying allegation" had to be investigated under the Code provisions, or whether the Council had a residual power to investigate formally or informally, the key issue related not to the making of the allegation, but to the taking of a decision as regards breach and then taking action in furtherance of that decision. What s.28(11) of the 2011 Act contemplated was actually a four stage process: (i) the making of an allegation; (ii) (optionally) a non-formal investigatory or mediation stage or a pause pending other relevant steps being taken (e.g. criminal proceedings); (iii) a formal stage, involving an independent person, leading to a decision on breach; (iv) (if breach is found) a formal stage, again involving the independent person, dealing with action. An independent person had to be involved and consulted not just at the sanction stage, but also at the decision-making (breach finding) stage.
The Town Council's process was in substance flawed both procedurally and substantively. It had not undertaken a process of identification and investigation, and its  broad opinion on reconsideration after a year that "there had been little or no improvement in Cllr H's behaviour" could not be adequate. The process of considering the complaint was deficient in natural justice and it was entirely wrong for the Council to approach any fresh consideration of the complaints with anything other than an open mind engaged with the possibility that Cllr H might have legitimate answers to specific complaints made against her. Even if the complaints had been established, the sanctions were unreasonable and disproportionate. (15 May 2018)

See also our Alert Use of grievance procedures to impose sanctions for councillors' misconduct in which we discuss the implications of this decision.

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

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Structural Reorganisation

MHCLG: Variation of Invitation to submit a proposal for a single tier of local government in Northamptonshire: the Secretary of State has written to the principal councils in Northamptonshire, informing them that he has agreed to their request to extend the date by which proposals for unitary structures should be submitted. The date for submitting any proposal to the Secretary of State is now 31 August 2018, to allow time for proper public consultation. (18 May 2018)

Structural Change Orders: the Government has made the following Orders. All come into force on 25 May 2018:

(24 May 2018)

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

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London Assembly: Electric vehicles: this report from the London Assembly Environment Committee calls for the Mayor to lead a pan-London approach to electric charging points. It finds that the growth in the number of electric vehicles in the capital is outstripping the number of charge points and this could limit the number of people owning an electric vehicles, at a time when it is essential that Londoners move away from internal combustion engine vehicles. Its recommendations include that the Mayor should encourage all London boroughs to make parking for electric vehicles free or discounted, to drive take-up, and should offer TfL capital funding to install electric charging points where private sector investment is not happening quickly enough. (24 May 2018)

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

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