Welcome to the August edition of LA View. This month, we place an emphasis on PFI recent guidance and reports, as well as our regular updates and feature articles.

LA Spotlight

White Fraiser Report: Lessons in PFI Management

A new report, the White Fraiser Report, has been published by the Infrastructure and Projects Authority (IPA) on behaviours, relationships and disputes across the PFI sector, which highlights the need for greater investment in managing PFI contracts by local authorities. 

The Report commissioned by the IPA followed a 2020 NAO survey on PFI expiry, in which 37% of respondents (a range of PFI stakeholders across various sectors) stated they anticipated having formal disputes in the run-up to PFI expiry. 

The Report highlights that, unfortunately, there are a number of examples in the market of overly aggressive behaviour, including from third party consultants, and where a failure to adhere to the Nolan principles is in some cases impacting on well-being of both public sector and private sector staff working on PFIs. 

Against this bleak picture, the Report also estimates that only around 10% of operational PFI projects are actively engaged in disputes, and that only around 1% of those are referred to formal dispute resolution. 

The concern for the 90% of PFIs where there are no disputes is that in some cases this is not because contracts are being managed well, but because in fact they are being under-managed. The Report states that there is a clear need for a stronger monitoring/auditing function for public sector bodies managing PFIs.

This requires greater capacity and capability within public sector bodies. Helpfully, as we have recently highlighted, the IPA has announced that a Local Government Budget is available, to help provide resource to local authorities managing PFIs. This is a welcome development.

The Report helpfully acknowledges that “both the public and private sector believe it is possible to have a dispute in a contract and successfully manage this through to conclusion, without damaging relationships”. This chimes with our advice to clients, which is that it should not be a choice between robust contract management and a collaborative working relationship: our experience is that, in fact, the two often go hand in hand.

Critical to effective management is for local authorities to have information available to assist it in meeting its strategic goals. Where there is a reverting asset, and an urgent need to understand the position in respect of both condition and compliance, the Report recommends a “reset” approach: the Project Co agrees to carry out a third party survey of the assets, which it shares with the public sector, on the basis that the public sector agrees to provide some relief from deductions during a reasonable period of time in which any issues highlighted by the surveys are rectified. This is a model which we have seen used in a number of PFIs.

Councils should note that the IPA recommendation is that parties should start planning for expiry of PFI projects at least seven years in advance. Our expert team can provide advice to clients in managing operational PFIs, planning for expiry, and on dispute resolution.

Judith Hopper, Partner

Overview Quick Links

Net Zero 
Delivering Value
Place & Growth 
Governance & Reorganisation
Contract Management
Disputes & Regulatory Support
Resource Library

Your Contacts

Nadeem Arshad & Nathan Bradberry
Chris Harper & Kirtpal Kaur-Aujla
Rebecca Pendlebury 
David Kitson & Victoria Barman
Richard Lane & Liz Fletcher
Olivia Carter & Judith Hopper


Net Zero

IPA recommendations on Decarbonisation of Operational PFI Projects

The Infrastructure Projects Authority (IPA) has recently published a handbook of recommendations for the Decarbonisation of Operational PFI Projects. As noted within the published guidance, 42% of the UK’s carbon footprint is attributable to the built environment. Further, all public sector organisations are seeking to decarbonise assets as part of the Government’s net zero targets.

PFI contracts provide significant public services (including to schools, hospitals, social care services, waste services, transport, custodial facilities) and the underlying assets within PFI projects are large and also energy intensive. Consequently, considering decarbonisation options on PFI projects could assist with public sector organisations meeting their net zero targets.

The guidance recommends that PFI parties, working together, develop a decarbonisation plan for the PFI project/asset – with identified interventions which could be implemented in the short, medium and longer term. The plan needs to be based on five key principles:

  1. data first
  2. know your contract
  3. engage stakeholders
  4. prioritise
  5. make a plan

See the guidance for more information.

Following the development of the plan, the PFI parties can begin to seek to deliver the underlying decarbonisation / net zero change and build on the plan itself. The guidance sets out that many of the resulting changes will likely to be implemented using the existing change mechanism within the PFI contract.

The IPA’s guidance notes it can be helpful to take a staged approach to PFI project decarbonisation, focussing initially on the scope 1 emissions (direct emissions generated from sources owned and controlled by contracting authorities) and scope 2 emissions (indirect emissions generated from purchased electricity, steam, heating or cooling) and moving to consider scope 3 emissions (indirect emissions generated by supply chain) over time.

The guidance consists of three separate documents:

  • Executive Summary
  • Part one – developing a decarbonisation plan
  • Part two – delivering a net zero change

If it would be helpful to discuss your PFI project, including in respect of decarbonisation plans and resulting changes, please do get in touch with Olivia Blessington.

Publications & Guidance

Biomass Strategy 2023

Department for Energy Security and Net Zero | 10 August 2023 

This strategy sets out the role sustainable biomass can play in reaching net zero, what government is doing to enable that objective, and where further action is needed.

Heat network consumer and operator survey (2022)

Department for Energy Security and Net Zero | 4 August 2023 

Report on the experiences of heat network consumers and heat network operators, based on a survey from March to July 2022 and interviews from November 2022 to January 2023.

The data and technology challenges on the road to net zero

British Property Federation | 31 July 2023

The British Property Federation has published commentary on the data and technology challenges to achieving net zero.

Local area energy planning: achieving net zero locally

UK Parliament | 25 July 2023

This POSTnote considers the relatively new process of local area energy planning that aims to deliver net zero targets more effectively at the regional level.

Apply for the Heat Network Efficiency Scheme (HNES) Round 4

Department for Energy Security and Net Zero | 24 July 2023 

The Department for Energy Security and Net Zero has updated the guidance and overview to reflect changes to closing dates of Rounds four and five.

RECHARGE UK’s report sets out electrification roadmap

The Association for Renewable Energy & Clean Technology | 20 July 2023

A new report from electric vehicle (EV) trade group RECHARGE UK provides a roadmap of how the industry can accelerate chargepoint deployment to keep up with the growth of EV sales in the UK.

Planning and solar farms

House of Commons Library | 18 July 2023

A Westminster Hall debate on planning and solar farms took place on Wednesday 19 July 2023. Ahead of the debate, the House of Commons Library published a report on planning and solar farms.

Government sets out adaptation programme to tackle climate impact

Department for Environment, Food & Rural Affairs | 17 July 2023

The UK government has unveiled its third National Adaptation Programme (NAP3) which sets out a strategic five-year plan to boost resilience and protect people, homes, businesses and our cultural heritage against climate change risks such as flooding, drought and heatwaves.

UK has ‘significant’ policy and funding gaps for climate resiliency

edie | 6 July 2023

new report from Oxford University’s Environmental Change Institute, Smith School of Enterprise and the Environment and the Green Finance Institute has warned that current investments into green projects are failing to account for the need for climate resiliency. The report warns that “significant gaps” have emerged in UK policy that is slowing the flow of finance into projects that can mitigate against climate impacts like heatwaves, drought, storms and flooding.

Green Heat Network Fund (GHNF): guidance on how to apply

Department for Energy Security and Net Zero | 5 July 2023 

Round six guidance is now available; the Round will close to applications on 29 September 2023.

Hydrogen Village Trial: open letter to Gas Distribution Networks

Department for Energy Security and Net Zero | 12 July 2023 

The government is continuing to develop the proposal for a hydrogen village trial in Redcar, Teesside with Northern Gas Networks. Whitby, Ellesmere Port will no longer be considered as the location for the hydrogen village trial. A decision on whether to proceed with the trial in Redcar will be made by the government later this year. For press coverage, please see: Ellesmere Port hydrogen heating trial scrapped after protests | BBC News.

UK hydrogen strategy

Department for Energy Security and Net Zero | 2 August 2023 

The Department for Energy Security and Net Zero has published the August 2023 Hydrogen strategy update to the market.


£6m to improve air quality in local communities

Department for Energy Security and Net Zero | 4 August 2023 

New round of Air Quality Grants for local authorities opens to benefit communities and reduce the impact of polluted air on people's health.

Hundreds of thousands of heat network customers to benefit from fairer energy prices

Department for Energy Security and Net Zero | 4 August 2023 

New plans for heat network customers to receive fairer prices for cleaner heating.

Heat networks regulation: consumer protection

Department for Energy Security and Net Zero | 4 August 2023 

This consultation seeks views on consumer protection requirements around:

  • pricing
  • quality of service
  • transparency of information
  • consumers in vulnerable circumstance
  • the scope of the rules and how we should phase them in

It also covers Ofgem’s approach to implementing and enforcing regulation, including through guidance, market monitoring, compliance, and enforcement activity, as well as its approach to delivering the cost recovery regime. This consultation closes at 11:59 pm on 27 October 2023.

Industry and government agree to seize the “immense opportunities ahead” as Britain builds a world-leading energy sector

Department for Energy Security and Net Zero | 2 August 2023 

Energy firms met earlier in August with Secretary of State Grant Shapps during Energy Week to strengthen the UK's plans for energy security and economic growth.

Environment Secretary and Office for Environmental Protection at loggerheads over implications of Retained EU Law (Revocation and Reform) Act on environmental protections

Local Government Lawyer | 2 August 2023

The Secretary of State for Environment, Food and Rural Affairs has rejected concerns expressed by the Office for Environmental Protection (OEP) over the implications of the Retained EU Law (Revocation and Reform) Act for environmental law.

Economic growth and energy security on the agenda as Shapps convenes Downing Street energy summit

Department for Energy Security and Net Zero | 2 August 2023 

Energy Security Secretary Grant Shapps met with energy industry leaders in Downing Street.

Government cuts cost of polluting in Britain in latest anti-green move

The Independent | 31 July 2023

Ministers quietly rolled out changes to a carbon trading scheme which lets companies compensate for their greenhouse gas emissions.

Firm loses legal fight over council 'subsidy'

MRW | 31 July 2023

Durham County Council did not improperly subsidise its commercial waste service to the detriment of commercial competitors, the Competition Appeals Tribunal has ruled.

Michael Gove calls for relaxation of net zero measures and warns against treating environment as 'religious crusade'

Sky News | 31 July 2023

Michael Gove has warned against "treating the cause of the environment as a religious crusade" and called for a relaxation of some net zero measures.

‘Councils best placed to make decisions with communities’ – LGA on Low Traffic Neighbourhoods review

Local Government Association | 30 July 2023 

“Councils are on the side of all road users and residents, and are working hard to tackle congestion, make our air cleaner and improve the quality of life in their communities. We want to work with government to achieve this.”

Pension funds ‘at risk’ over climate change financial impact advice

Local Government Chronicle | 28 July 2023

Council pension funds are being “put at risk” because of investment consultants using flawed economic research that underplays the financial impact of climate change, a new report claims. The research from Carbon Tracker, a non-profit company that examines climate risk, says economic papers ignore climate ‘tipping points’ that mean changes in the economic impact from global warming is “far more likely to be discontinuous and abrupt, rather than continuous and relatively gradual”.

Landmark High Court win for Mayor means ULEZ expansion will go ahead

London City Hall | 28 July 2023

The Mayor of London, Sadiq Khan, has recently confirmed the Ultra-Low Emission Zone (ULEZ) will expand to cover almost all of the area within the Greater London boundary on 29 August as planned, following the very significant High Court ruling that the process carried out on the proposal to expand the ULEZ, including the public consultation, was thorough and the decision was completely legally sound.

Biodiversity Net Gain moves a step closer with more funding

Department for Environment, Food & Rural Affairs | 27 July 2023

New nature positive developments moved a step closer in July with additional government support announced to enable the rollout of Biodiversity Net Gain. Many housing developers are already successfully operating Biodiversity Net Gain recognising the benefits for people and nature. From later this year, it will be mandatory meaning all major developments will required to deliver a 10% benefit for nature.

Driving the roll out of electric vehicle charging points: the Bank commits £45m to support ambitious roll-out across motorway services

UK Infrastructure Bank | 26 July 2023

UK Infrastructure Bank has recently announced a commitment of £45m in senior debt to support GRIDSERVE, a sustainable energy business and Electric Vehicle charge point operator (CPO), with the roll-out of critical Electric Vehicle (EV) charging infrastructure across motorway service areas in the UK.

Thousands to be trained to boost energy efficiency in homes across the country

Department for Energy Security and Net Zero | 25 July 2023 

Training providers across England can bid for a share of £8.85m government funding to offer courses in retrofitting and installing insulation.

Another year of excessive packaging – LGA on delay to EPR

Local Government Association | 25 July 2023 

“It is crucial now that government, industry and councils all put the foot to the floor in planning full implementation from 2025, and that Government extend EPR to cover other material types beyond just packaging.”

Energy Bills Discount Scheme

Department for Energy Security and Net Zero | 24 July 2023 

Guidance has been updated with more information about who can apply for the higher level of support after 25 July 2023.

Tripling renewable power capacity by 2030 is vital to keep the 1.5°C goal within reach – Analysis

International Energy Agency | 21 July 2023

Governments around the world should commit to tripling global renewable capacity by 2030 ahead of COP28.

High Court to hear statutory review over planning inspector approval of AONB oil project

Local Government Lawyer | 19 July 2023

The High Court heard a claim that argues a planning inspector's decision to allow an exploratory oil drilling project in an Area of Outstanding Natural Beauty failed to consider the harms of the future extraction of hydrocarbons on the environment.

Welsh council defeats legal challenge from residents over sewage pumping station decision

Local Government Lawyer | 13 July 2023

A residents association has lost a High Court case over whether Cardiff Council properly agreed to allow a sewage pumping station to be built to serve a new housing development. In The Llandaff North Residents' Association, R (On the Application Of) v Cardiff Council [2023] EWHC 1731 (Admin)HHJ Jarman KC. sitting as a judge of the High Court, rejected all the points argued by Llandaff North Residents' Association.

New powers do not go far enough - LGA on increased fines for litter, graffiti and fly-tipping

Local Government Association | 11 July 2023

“Councils want courts to look at fly-tipping as an offence first, rather than at the individual and their ability to pay, as well as more use of suspended sentences, or custodial sentences for anyone convicted of a second fly-tipping offence."

1,300 clean power projects with permission awaiting construction, say councils

Local Government Association | 11 July 2023

“It’s fantastic to see a rapid rise in planning permissions for green energy projects. However, the numbers awaiting construction is concerning, with many pointing to delays in securing the grid infrastructure that connects solar panels to kettles."

Government faces fresh legal challenge over ‘unlawful’ climate plans

Friends of the Earth | 7 July 2023

Three organisations are taking the government to court for the second time in under two years over its feeble and inadequate strategy for tackling climate change. Friends of the Earth, ClientEarth and Good Law Project say the government’s revised net zero strategy – the Carbon Budget Delivery Plan, published 30 March – is unlawful and have filed papers at the High Court requesting a judicial review.

Back to top

Delivering Value

Part One: The Subsidy Control Act 2022 and Updated Statutory Guidance
Recent amendments to the Statutory Guidance for the UK Subsidy Control Regime

This is an extract from one of the first of two articles providing an overview of recent amendments to the Statutory Guidance for the United Kingdom Subsidy Control Regime (Statutory Guidance). The Statutory Guidance accompanies the Subsidy Control Act 2022, which introduced the UK’s new subsidy control regime in January 2023.

The Department for Business and Trade published the amendments on 30 June 2023 to provide further guidance on the requirement to publish details of subsidies on the UK’s subsidy database and on how to determine the value of a subsidy by calculating its Gross Cash Amount (GCA) or Gross Cash Equivalent Amount (GCE). This article focusses on the guidance for calculating the value of a subsidy, and our second article will cover the further guidance on the requirements under The Subsidy Control (Subsidy Database Information Requirements) Regulations 2022.

Valuing a Subsidy

Annex 3 to the Statutory Guidance includes information about how public authorities should determine the value of subsidies in accordance with the Subsidy Control (Gross Cash Amount and Gross Cash Equivalent) Regulations 2022 (Gross Cash Regulations). Part of the valuation exercise involves calculating the GCA where the subsidy is given in the form of a grant, or the GCE where the subsidy is given in any other form.​

1. Application of discount rate

The general idea behind the practice of discounting is to arrive at a more accurate value for a subsidy, factoring in the time value of money. For example, a grant of £100 given today is generally worth more to the recipient that a commitment to give a grant of £100 in two years’ time. The discounting exercise reduces the value of the subsidy and so can be helpful when trying to fit the subsidy within an exemption which is limited in value (such as the exemption for minimal financial assistance) or when seeking to demonstrate that the subsidy is proportionate and therefore satisfies subsidy control principle B.

The need for discounting does not arise where a subsidy is provided in a single instalment and without delay (for example, a grant paid to the recipient in full when the grant agreement is signed). However, discounting may be appropriate where the subsidy will be provided in tranches over a number of years, or where there will be a delay of more than twelve months between when the public authority commits to providing the subsidy and when the subsidy is actually provided. 

The Statutory Guidance recommends that public authorities discount future values when calculating the GCE or GCA of a subsidy, noting that it is best practice to discount future values only if:

  • the subsidy contains explicit conditions specifying when transfers of financial assistance are to be made, or
  • schedule of payments has been agreed between the parties (for example, milestone payments as part of a wider project). If the exact timing of payments is not known, the public authority can discount based on its best estimate of when the financial assistance will be provided.

If it is considered appropriate to apply a discount rate, a public authority must use the discount rate specified in regulation 4(5) of the Gross Cash Regulations. This rate is currently 5.3% per annum, but will be updated annually. Any instalment of the subsidy paid within the first 12 months should not be discounted, and future instalments (such as monthly instalments) can be discounted in 12-month blocks rather than each having to be discounted separately. Importantly, the discounting exercise is undertaken before the GCA or GCE of the subsidy is determined. An equivalent discounting exercise must also be applied to the market rate equivalent in order to ensure that the GCA or GCE is calculated accurately.

The Statutory Guidance helpfully provides the mathematical formula used to calculate the present value of financial assistance given in the future.

For anyone who sees this formula and wants to run a mile, the Statutory Guidance also contains a narrative description of the calculations involved!

2. Calculating the maximum value of a subsidy within a scheme

Where a subsidy scheme is set up, it is necessary to know the maximum value of a subsidy which can be given under the scheme in order to ensure the entry on the subsidy database is accurate and in order to determine whether the subsidy scheme is a Subsidy Scheme of Particular Interest which has to be referred to the Competition and Markets Authority.

The Statutory Guidance says that it is best practice to incorporate a cap on the value of subsidies given under a subsidy scheme, provided the public authority will have the required level of control over the final amount of the subsidies given.

If it is not feasible or appropriate to incorporate a cap, the public authority is required to make a reasonable estimate of the maximum subsidy that will be awarded, having regard to the business case and its assessment of the scheme against the subsidy control principles. The public authority should err on the side of caution and over-estimate the maximum subsidy where there is an element of uncertainty.

3. Indirect subsidies

In some circumstances, the economic benefit from a subsidy does not accrue exclusively to the direct recipient of the subsidy. Some or all of the economic benefit may be passed on to another enterprise which will (or may) therefore be in receipt of an indirect subsidy. It is important to value an indirect subsidy, for example in order to determine whether it will be possible to rely on the exemption for minimal financial assistance, and in order to ensure that details of the indirect subsidy are published on the UK’s subsidy database. This latter point is important because the time limit for challenging the indirect subsidy may not begin to run until details are published on the database.

The Statutory Guidance sets out a series of steps which, broadly, involve: working out the overall value of the financial assistance to the direct recipient, working out the proportion of that financial assistance passed on to other enterprises and valuing the GCA or GCE or each indirect subsidy. The last of these steps will necessarily involve a separate assessment of each indirect subsidy specifically in relation to the enterprise concerned, since it will be necessary to compare the value of the financial assistance with what that particular enterprise would have received under normal market conditions.

Indirect subsidies can sometimes be difficult to spot and may be somewhat nebulous in nature. They can therefore be inherently harder to identify and value than a direct subsidy and, even with the help of the Statutory Guidance, this may not always be an easy exercise.

Part 2 of Annex 3 provides more specific guidance on the various approaches available for valuing the following types of subsidy:

The Statutory Guidance also provides a helpful explanation of how the various valuation methods provided by the Gross Cash Regulations are to be applied in practice. The original Statutory Guidance published in November 2022 did not include any detail in Annex 3 and so this latest update is most welcome. 

The current version of the Statutory Guidance incorporating all recent amendments can be found here. It will be important for public authorities to continue to closely review and apply the most up-to-date version of the Statutory Guidance.

Our Subsidy Control Team is happy to support public authorities and other types of organisations, including subsidy recipients, with any queries relating to these amendments, or with the application of the Statutory Guidance more generally. Please contact Bethan LloydSally StoneIsobel Williams or Edward Reynolds for an initial discussion about how we can assist.

Publications & Guidance

Adult social care workforce in England

House of Commons Library | 7 August 2023

An overview of key issues and policy concerning the adult social care workforce in England.

The government's response to the Adult Social Care Committee report

Department of Health and Social Care | 31 July 2023

The government’s formal response to the House of Lords Adult Social Care Committee report, ‘A “gloriously ordinary life”: spotlight on adult social care’.

Mental health and wellbeing plan: call for evidence

Department of Health and Social Care | 28 July 2023

The Department of Health and Social Care has published the outcome of the consultation on mental health and wellbeing. The consultation, which ran from 14 April 2022 to 7 July 2022, sought views on what should be done to improve mental health and wellbeing.

Adult social care winter letter 2023 to 2024

Department of Health and Social Care | 28 July 2023

Letter from Helen Whately, Minister of State for Social Care, setting out the priorities for adult social care this winter.

Accommodation and integration support for resettled Afghans

House of Commons Library | 27 July 2023

People arriving under the Afghan resettlement and relocation schemes are eligible for integration support in the UK including help to find housing, work and learn English. Their temporary hotel accommodation is being withdrawn over the coming months and residents are being told to find alternative housing.

NHS strike action in England

House of Commons Library | 27 July 2023

Strikes have been taking place across the NHS in England. This briefing looks at Government pay offers, what unions are asking for and when strikes will happen.

National Partnership Agreement: Right Care, Right Person

Home Office | 26 July 2023

This document sets out a framework for how police and health services should improve the response to people with mental health needs.

Ombudsman stats show stark reality of life in England in 2023

Local Government and Social Care Ombudsman | 26 July 2023

The Ombudsman’s annual complaints statistics once again back up the harsh realities many people face in key areas of their lives – how their children are educated, how elderly relatives are cared for, and the houses they call home.

Costs of new inspection regime for children in care could be nine times higher than government funding, report warns

County Council Network | 21 June 2023

The costs of accommodating teenagers in care in semi-independent housing could be over nine times more than the government has committed up to 2026 to fund new regulations, while thousands of care beds could be withdrawn, a new report reveals.

The implementation of family hubs: Emerging strategies for success

Local Government Association | 17 July 2023

The LGA commissioned Coram to develop a series of six case studies exploring various elements of family hubs delivery across some councils in England.

Provider Selection Regime: supplementary consultation on the detail of proposals for regulations

Department of Health and Social Care | 13 July 2023

The Department of Health and Social Care has published the government's response to its consultation on the introduction of the Provider Selection Regime, which is a proposed new set of rules that will govern the arrangement of healthcare services in England.

Adult social care workforce growing again, but challenges remain

Skills for Care | 12 July 2023

The adult social care workforce in England started growing again in 2022-3, according to new data from Skills for Care. The annual Size and Structure of the Adult Social Care Sector and Workforce in England report found that the number of filled posts - roles with a person working in them - increased by around 1% (20,000) between April 2022 and March 2023. The previous year, the number of filled posts fell for the first time on record, by around 4% (60,000).


Experts to lead AI Safety Summit preparations as new funding announced to modernise healthcare

Department of Health and Social Care | 10 August 2023

Two leading experts appointed to spearhead preparations for UK to host AI Safety Summit as £13m unveiled to revolutionise healthcare research.

Government boosts use of independent sector capacity to cut NHS waits

Department of Health and Social Care | 4 August 2023

Thirteen new community diagnostic centres are opening across the country to deliver more than 742,000 additional scans, tests and checks a year.

Afghans already presenting as homeless – LGA statement

Local Government Association | 4 August 2023

Hotels have already begun to close to Afghan households across the country and - as we feared - councils are already seeing families presenting to them as homeless as a result.

Council-maintained schools continue to outperform academies – new LGA research

Local Government Association | 3 August 2023

Schools that remain within their council have continued to outshine those that converted to academies, according to new research commissioned by the Local Government Association.

£600mn social care winter workforce and capacity boost

Department of Health and Social Care | 28 July 2023

£600m over the next two years will boost the capacity of the social care workforce and funding for the social care sector. Local Government Association’s reaction: ‘Crucial to delivering care’: LGA responds to £600m social care workforce funding.

Ending asylum hotel use would back UK 'into a corner'

The MJ | 27 July 2023

The UK should not back itself ‘into a corner’ and exclude hotels as part of the solution to soaring asylum numbers, a senior sector figure has argued.

Working Together to Safeguard Children: changes to statutory guidance

Department for Education | 21 June 2023

The Department for Education are seeking views on our revisions to the Working Together to Safeguard Children statutory guidance. This consultation closes at 11:59pm on 6 September 2023

Whitehall set to bring in AI and data experts under plans to turbocharge productivity

Cabinet Office | 19 July 2023

Digital gurus from the private sector will be parachuted into government departments as part of radical plans to turbocharge the technological skills of civil servants, Cabinet Office Minister Jeremy Quin has revealed.

Local Authorities and landlords urged to step up with ‘final push’ to resettle Afghans who supported Britain

Cabinet Office | 18 July 2023

Local councils have been urged to step up efforts to provide permanent homes for the remaining Afghans who fled the Taliban and are currently living in temporary hotel accommodation, at a cost of around £1m per day to taxpayers.

Dismay at 'top-down diktat' approach to asylum

The MJ | 11 July 2023

Councils and MPs this week expressed dismay at the Home Office’s ‘top-down diktat’ plan to double asylum seeker numbers at many hotels.

Ofsted launches consultation for inspecting supported accommodation

Ofsted | 10 July 2023

The consultation will provide the sector with the opportunity to share its views on how supported accommodation should be inspected. The consultation runs from 10 July to 8 September 2023 and will inform our arrangements for inspections starting in April 2024. They began accepting applications to register providers of supported accommodation in April 2023, when regulations came into force. Regulation and inspection will provide essential oversight and assess whether children in supported accommodation are safe and well supported.

Back to top

Place & Growth

Responsible Actors Scheme (RAS) Launched

On 21 July 2023 the RAS introduced under the UK Building Safety Act 2022 was launched having been bought into effect by the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023.

The regulations require eligible developers to sign up to the RAS, and if they fail to do so, or fail to comply with their ongoing obligations they can be placed on a prohibitions list which will prevent them from obtaining planning permission, or building control approval.

Developers will be eligible for the RAS if they meet one or more of three sets of criteria:

  1. Their principal business is a residential property development; they meet the profit conditions (any developer whose average annual operating profit over a three-year period (companies’ financial years ending 2017, 2018, and 2019) was £10m or higher); and they developed or refurbished (other than solely as a contractor) 11m+ residential buildings in England in the last thirty years ending on 4 April 2022.
  2. They are a developer who meets the profits condition (see above); and developed or refurbished (other than solely as contractor) multiple buildings that have been assessed as eligible for a relevant government cladding remediation scheme.
  3. They are a developer who developed or refurbished (other than solely as a contractor) at least one 11m+ residential building that qualifies for remediation under the terms set out in the developer remediation contract; and they volunteer to sign the contract and join the RAS.

Those that meet the criteria to join the RAS will be served notice inviting them to join. Within 60 days of the notice they must either enter into a “Self-Remediation Contract” or serve a counter notice with evidence of why they are not required to join the RAS. If the developer does not do either option they will be deemed to be eligible but having not registered so will be added to the prohibitions list. A developer who is eligible for the RAS may join and remain only if it meets the membership conditions which includes complying with the ongoing obligations in the Self-Remediation Contract.

Under the Self-Remediation Contract which the developers will need to sign to join the RAS they will be required to identify all buildings that they are responsible for the fire safety remedial works, carry out or procure those works at their cost, repay any government remediation fund for any amounts already received, and avoid any corporate restructuring which would prevent the developer from complying with its obligations.

If an eligible developer is added to the prohibitions list they will be prohibited from carrying out major development of land. This does not have retrospective affect, and therefore won’t affect planning permissions granted before 4 July 2023. There will also be building control prohibitions which will prevent an eligible developer who does not join the RAS from giving or receiving relevant building notices, certificates, and applications. The regulations do include appropriate exceptions to the prohibitions, primarily aimed at mitigating potential impact on innocent parties for example to allow for emergency repairs.

The government have confirmed that they will publish a list of RAS members as well as a list of developers on the prohibitions list.

The RAS is a clear demonstration of the government’s plan to require large residential developers to undertake and pay for fire safety remedial works, and will recognise action taken by responsible developers to identify and remediate fire safety defects. Developers who either receive an invitation to the RAS, or believe they are eligible for the scheme should respond promptly in order to avoid being placed on the prohibitions list.

For further help and guidance, please contact Louise Robling or Louise Mansfield.

Inform policy change

LGA/Empty Homes Network – Empty Homes Survey

The LGA has commissioned the Empty Homes Network to conduct a research study into the current position and experiences of local authorities and their officers, surrounding the issue of empty homes. The study aims to assess the current number of empty homes across the country, understand the levels of resource employed to tackle the issue, and propose a number of best practice recommendations for local authorities to adopt and implement with a view to increasing the levels of empty homes brought back into use nationally. The short survey of 14 questions, should take no longer than five minutes to complete, and will not only inform recommendations being put forward by the paper, but also potential policy and framework changes in the years to come. The deadline for survey submissions is 5:00 pm on Friday 1 September.


Social Housing (Regulation) Act 2023

An Act to make provision about the regulation of social housing; about the terms of approved schemes for the investigation of housing complaints; about the powers and duties of a housing ombudsman appointed under an approved scheme; about hazards affecting social housing; and for connected purposes. The Act received Royal Assent on 20 July 2023. For more information, please see: Social Housing (Regulation) Act 2023 | Bevan Brittan LLP

Publications & Guidance

Funding for Levelling Up: government response to the Select Committee report

Department for Levelling Up, Housing and Communities | 10 August 2023

The government’s response to the Levelling Up, Housing, and Communities Select Committee’s report on funding for Levelling Up.

Social Housing Quality Resident Panel Reports

Department for Levelling Up, Housing and Communities | 8 August 2023

Summary reports of the Social Housing Quality Resident Panel activities.

Transfer of Local Enterprise Partnership (LEP) core functions to combined and local authorities

Department for Levelling Up, Housing and Communities | 4 August 2023

​​A joint letter from the Minister for Levelling Up and the Minister for Enterprise, Markets and Small Business to LEP chairs, combined authority mayors, local authority leaders and the Mayor of London.

​​Local Enterprise Partnerships: integration of LEP functions into local democratic institutions

Department for Levelling Up, Housing and Communities | 4 August 2023

Guidance for ​​Local Enterprise Partnerships (LEPs) and local authorities on the integration of LEP functions into local democratic institutions.

Local Enterprise Partnerships: information gathering exercise

Department for Levelling Up, Housing and Communities | 4 August 2023

A summary of the results of the LEP future funding and information gathering exercise.

Ombudsman updates planning guidance for authorities

Local Government and Social Care Ombudsman | 3 August 2023

The Local Government and Social Care Ombudsman has updated its guidance to planning practitioners ‘Not in My Backyard’. The special report, originally published in 2014, offers advice and guidance to people who work in councils’ planning function, along with suggested questions local councillors can use to scrutinise their own authority’s performance.

July 2023 - update on government’s work to improve the quality of social housing

Department for Levelling Up, Housing and Communities | 31 July 2023

The government has a programme of reform to improve the quality of social housing. Each month, progress on our commitments is shared on these pages, as part of our commitment to respond to the tragic death of two year old Awaab Ishak.

Grenfell Tower site update August 2023

Department for Levelling Up, Housing and Communities | 31 July 2023

A summary of current activity at the Grenfell Tower site.

Local growth funding: improving and simplifying monitoring

Department for Levelling Up, Housing and Communities | 28 July 2023

Progress update explaining the process for rationalising output and outcome monitoring indicators for future funding.

Funding to fix unsafe cladding

Department for Levelling Up, Housing and Communities | 25 July 2023

All residential buildings above 11 metres in England now have a pathway to fix unsafe cladding, protecting leaseholders from these costs. This page will help you navigate the routes available to fix unsafe cladding.

Cladding Safety Scheme opening

Department for Levelling Up, Housing and Communities | 25 July 2023

The Cladding Safety Scheme will provide funding for the remediation of unsafe cladding in England where a responsible developer cannot be identified, traced, or held responsible. Read the press release here: Government launches biggest cladding removal scheme.

Regulation of social housing: government response to the Select Committee inquiry

Department for Levelling Up, Housing and Communities | 20 July 2023

The government's response to the Levelling Up, Housing and Communities Select Committee inquiry into the regulation of social housing.

Perspectives on living in and looking after shared buildings

Department for Levelling Up, Housing and Communities | 20 July 2023

A report exploring the research findings on consumer attitudes towards leasehold, commonhold, enfranchisement, and the Right to Manage.

Infrastructure and Projects Authority Annual Report 2022-23

Infrastructure and Projects Authority | 20 July 2023

The 2022-23 Annual Report on the Government Major Projects Portfolio from the Infrastructure and Projects Authority.

Private Finance Initiative and Private Finance 2 projects: 2022 summary data

Infrastructure and Projects Authority | 20 July 2023

PFI and PF2 data for current projects as at 31 March 2022 along with an interactive dashboard.

Building Safety Programme: monthly data release – June 2023

Department for Levelling Up, Housing and Communities | 20 July 2023

The 68th monthly data release from the government’s Building Safety Programme.

What is affordable housing?

House of Commons Library | 20 July 2023

This briefing explains how affordable housing is defined and looks at trends in housing affordability and the supply of affordable housing.

Rural bus services at a ‘historic low’, as new report reveals urban locations received two-thirds of flagship government funding

County Councils Network | 19 July 2023

More than one in four bus routes in county and rural areas have vanished over the last decade with passenger numbers dropping to a ‘historic low’, a new report reveals.

Business rate retention and non-domestic rates 2022 to 2023

Department for Levelling Up, Housing and Communities | 18 July 2023

Business rate retention accounts as required under schedule 7B of the Local Government Finance Act 1988.

Living Locally: The role of housing and planning within local councils

Town and Country Planning Association | 17 July 2023

A new report from the Town and Country Planning Association highlights that local living needs national backing. Despite clear evidence on the benefits of complete, compact and connected communities, local councils are unable to implement all of the necessary policy measures without government backing, from across all UK administrations. The warning comes in a wide-ranging report published by the Association for Public Service Excellence and researched and written by the Town and Country Planning Association.

Advisory local housing targets unlikely to deliver on Government’s 300,000 new homes objective, say MPs

UK Parliament | 14 July 2023

It is difficult to see how the Government will achieve its target of 300,000 new homes per year by the mid-2020s in England if mandatory local housing targets are dropped, says the cross-party Levelling Up, Housing and Communities Committee in a report published on 14 June.

The report, which examines the Government’s planning reform proposals, finds that the Government has not provided sufficient evidence to demonstrate how the policy of scrapping mandatory local housing targets will directly lead to more housebuilding. While the Government is on track to deliver one million new homes over the course of this Parliament, it is not forecast to deliver 300,000 net new homes per year by the mid-2020s.

Councils urge government to be decisive on abolishing Local Enterprise Partnerships as new report analyses the benefits of transferring functions to upper-tier authorities

County Councils Network | 14 July 2023

Councils are calling on the government to abolish Local Enterprise Partnerships (LEPs) from next April and equip local leaders with the powers to help them close the economic growth gap between rural and urban areas, which is revealed in a new report.


New housing qualification requirements could cost councils £18m in first two years

Local Government Association | 8 August 2023

Councils could face an extra bill of £18m to deal with new government housing standards, as revealed by research undertaken by the LGA.

Planning changes to speed up delivery of vital infrastructure

Department for Levelling Up, Housing and Communities | 26 July 2023

Overhaul of planning will speed up delivery of vital projects including off-shore wind, transport links and other major infrastructure.

Joint statement on enforcing the remediation of fire safety defects

Department for Levelling Up, Housing and Communities | 26 July 2023

DLUHC’s joint statement with regulatory bodies warns building owners that they need to get on with remediation work or face enforcement action.

Second Investment Zone for the North to unlock multi-million pound investments

Department for Levelling Up, Housing and Communities | 26 July 2023

Investment Zone could unlock £320m of private investment and deliver 4,000 jobs, across Liverpool, Runcorn, St. Helens, Maghull and Prescot over the next 5 years.

RSH proposes new standards to protect social housing tenants

Regulator of Social Housing | 25 July 2023

The proposed new consumer standards are designed to protect tenants and improve the service they receive.

Levelling Up Committee launches inquiry on housing for people with disabilities

UK Parliament | 25 July 2023

The Levelling Up, Housing and Communities Committee launches an inquiry looking at what Government can do to ensure disabled people have access to accessible and adaptable housing in England.

Long-term plan for housing

Department for Levelling Up, Housing and Communities | 24 July 2023

The Prime Minister and Secretary of State for Levelling Up, Housing and Communities have set out further plans for regeneration, inner-city densification and housing delivery across England, with transformational plans to supply beautiful, safe, decent homes in places with high-growth potential in partnership with local communities.

PM to build one million new homes over this Parliament

Department for Levelling Up, Housing and Communities | 24 July 2023

The government will meet its manifesto commitment to build one million homes over this Parliament, the Prime Minister, Rishi Sunak, has announced.

Older People's Housing Taskforce - call for evidence

Department of Health and Social Care | 24 July 2023

This call for evidence will help to inform the deliberations of the Older People’s Housing Taskforce. This consultation closes at 11:59pm on 18 September 2023.

Government heads off business rates review

The MJ | 21 July 2023

A bid to secure a review of business rates in the House of Lords has failed.

Levelling Up Committee launches inquiry on shared ownership

UK Parliament | 20 July 2023

The Levelling Up, Housing and Communities Committee has launched an inquiry into the two available low-cost shared home ownership schemes in England.

Basic housing to keep offenders off streets and cut crime

Ministry of Justice | 18 July 2023

A record number of offenders at risk of homelessness will be temporarily housed in basic accommodation as part of a national initiative to cut crime, Prisons Minister Damian Hinds has announced.

Mayor warns Government’s Infrastructure Levy could massively reduce London’s supply of new affordable homes

London City Hall | 11 July 2023

The Mayor of London, Sadiq Khan is joining organisations from across the planning and housing sectors - including the Royal Town Planning Institute, London Councils, the Local Government Association, the British Property Federation and Shelter - to call on the Government to scrap their proposals for a new Infrastructure Levy in the Levelling Up and Regeneration Bill. 

Mayor invests further £20m to tackle rough sleeping across London

London City Hall | 10 July 2023

The Mayor of London, Sadiq Khan, is investing an additional £20.2m into his flagship Life off the Streets Programme as part of his continued efforts to help people sleeping rough in London rebuild their lives.

Back to top

Governance & Reorganisation

Standing Orders - The Spitalfields Historic Building Trust v London Borough of Tower Hamlets

In the recent case of R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets [2023] EWCA Civ 917 the Court of Appeal gave judgment on the validity of standing orders which placed restrictions on a councillor’s ability to vote. The standing orders in question applied to the Council’s planning committee, and stated that in order to vote on an application, a member had to be present throughout the whole of the consideration of an application, and that where a partly heard application was deferred to a subsequent meeting, only members who were present at the previous meeting would be able to vote.

The question for the court was whether it was lawful to place such a restriction on a member’s ability to vote using paragraph 42 of Schedule 12 of the Local Government Act 1972, which provides power for local authorities to “make standing orders for the regulation of their proceedings and business…”

The Court ruled that the concept of “proceedings and business” was “wide enough to cover the standing orders with which we are concerned in this case” and “the phrase “proceedings and business” encapsulates both the activities of deliberation and voting which the committee conducts, and the procedure by which the conduct of those activities is regulated.”

The key question to be asked when seeking to introduce or amend standing orders for the regulation of proceedings and business was whether the provisions would be reasonable in Wednesbury terms – the importance of understanding the full reasoning and rationale as to why the provisions are being proposed, and the democratic implications of the same, is paramount.

For help and guidance on all local authority governance matters, please contact David Kitson.

Publications & Guidance

Correspondence between Lord Evans and the Deputy Prime Minister

Committee on Standards in Public Life | 21 July 2023

Correspondence between Lord Evans and the Deputy Prime Minister, the Rt Hon. Oliver Dowden CBE MP, about the Government response to the CSPL report, Upholding Standards in Public Life.

Strengthening Ethics and Integrity in Central Government

Cabinet Office | 20 July 2023

The Government has published its response to three reports on strengthening ethics and integrity in central government. Also see: Upholding Standards in Public Life recommendation tracker.

Draft guidance to make campaigning more transparent published

Department for Levelling Up, Housing and Communities | 13 July 2023

Guidance to help campaigners understand new digital imprints rules will ensure voters benefit from greater transparency online.

AI and Public Standards: letter from Lord Evans to AI Minister

Committee on Standards in Public Life | 12 July 2023

Lord Evans has written to the Minister for AI and Intellectual Property asking for an update on progress the government has made against AI recommendations.

AI and Public Standards: letter from Lord Evans to AI Adviser

Committee on Standards in Public Life | 12 July 2023

Lord Evans has written to the Adviser to the Prime Minister on AI about the Committee's 2020 AI report.

Correspondence between Lord Evans and Baroness Scott of Bybrook

Committee on Standards in Public Life | 11 July 2023

The Committee on Standards in Public Life (CSPL) has published the letter from Baroness Scott of Bybrook to Lord Evans in relation to the correspondence between the two about the government’s response to the CSPL report, ‘Regulating Election Finance’.

Draft best value guidance

Department for Levelling Up, Housing and Communities | 4 July 2023

Government have published “Best value standards and intervention – a statutory guide for best value authorities (draft)” with the aim of providing greater clarity on how to fulfil the Best Value duty under the Local Government Act 1999.


LGA survey finds 63% of councils have adopted Model Councillor Code of Conduct in whole or in part

Local Government Lawyer | 14 August 2023

Almost two-thirds of councils in England (63%) have adopted the Local Government Association’s Model Councillor Code of Conduct either completely or partially and 37% have not.

Councillor hits out at "archaic rule" after being kicked off council for not attending meetings for six months

Local Government Lawyer | 11 August 2023

Frustration has been voiced over a decision by Hull City Council to recall a disabled councillor under the Local Government Act 1972 after she failed to attend any council meetings for six months.

Woking reveals plan to conduct staffing restructure and series of governance reviews in bid to tackle financial position

Local Government Lawyer | 11 August 2023

Financially beleaguered Woking Borough Council has set out plans to conduct a staffing restructure and a series of governance reviews in an effort to tackle issues that have saddled the local authority with almost £2bn in debt.

Electoral Commission subject to cyber-attack

Electoral Commission | 8 August 2023

The Electoral Commission has been the subject of a complex cyber-attack, highlighting that the UK’s democratic process and its institutions remain a target for hostile actors online.

Section 114s: where are we headed next?

The MJ | 31 July 2023

After a spate of councils issuing section 114 notices, Rob Whiteman looks at what has been done so far in response and details the further reforms he wants.

Big failures overseen by BDO despite small market share

The MJ | 27 July 2023

An audit firm that had one of the smallest shares of the local government market was responsible for auditing councils with the biggest financial failures, it has emerged.

LGA produces case studies on protecting councillors from abuse

Local Government Lawyer | 27 July 2023

The Local Government Association has issued case studies of how councils can help to protect councillors from abuse, intimidation and violence, including ways to collaborate with the police.

Government refuses to commit to statutory officer guidance

The MJ | 25 July 2023

The Government has refused to commit to issuing fresh guidance to strengthen the role of the three statutory officers.

LGA begins work on Local Government White Paper

Local Government Association | 20 July 2023

The LGA has begun work to develop firm proposals for a Local Government White Paper to be published before the next election.

Back to top

Contract Management

PFI expiry health checks

In July the IPA issued a guide to the PFI expiry health checks (EHC) which the IPA offers to contracting authorities to assist contracting authorities assessing their readiness for expiry of their PFI project. 

The EHC process has been designed to:

  • enable feedback to the CA and sponsoring department on the individual project’s readiness for expiry (together with specific recommendations)
  • identify projects which may benefit from additional IPA support
  • provide the IPA with an evolving data set to monitor PFI portfolio readiness and identify themes for feedback.

EHC’s are offered to projects at seven, five and three years from expiry (contracting authorities can expect to be informed during quarter 4 of the preceding financial year of the intention for an EHC to be undertaken). Prior to each EHC, contracting authorities are to provide various documents and information to the IPA. The EHC then involves a review of the provided documentation and a structured IPA interview with the contracting authority. Following the review and interview the IPA drafts a report and this is then sent to the contracting authority and a meeting is offered with the contracting authority to discuss the report findings and recommendations.

EHCs (and the resulting report) assesses readiness for expiry across five themes:

  1. contract management & expiry planning
  2. relationships
  3. assets
  4. commercial position, and
  5. future services.

The EHC output report identifies (on the IPA’s assessment) the key expiry issues and actions that will improve the CA’s readiness for expiry (and thus reduce risk) and the urgency of action is indicated in a five tier “RAG” rating for the overall expiry readiness of the project and for each of the five themes. The “RAG” rating ranges from red (critical additional work required to achieve target readiness) through to green (at target readiness given the time to expiry).

The IPA’s Guide to PFI Expiry Health Checks sets out the key aspects and approach in relation to the EHCs and the EHC results. For more information, including commentary on the separate learnings report in respect of EHC’s previously undertaken in 2021/22 please see our additional article, by Olivia Blessington.

Publications & Guidance

PPN 08/23: Using Standard Contracts

Cabinet Office | 1 August 2023

PPN setting out Standard Contracts and their use by in scope organisations.

White Fraiser Report - Private Finance Initiative sector

Infrastructure and Projects Authority | 20 July 2023

A report into the status of behaviours, relationships and disputes across the Private Finance Initiative (PFI) sector.

A Guide to PFI Expiry Health Checks

Infrastructure and Projects Authority | 20 July 2023

A guide for contracting authorities preparing for a PFI Expiry Health Check undertaken by the Infrastructure and Projects Authority. See our article above for more.

Competition in public procurement: lessons learned

National Audit Office | 19 July 2023

This report examines whether government has mechanisms in place to understand and encourage competition in public procurement, and how government departments can make their use of competition more effective. The report draws on our insights from examining procurement processes of differing values and types, from the Superfast Broadband Programme to asylum accommodation and support services. It covers the large proportion of government procurement where there is an expectation that there should be a competitive market. There are a set of key findings and recommendations.

The Sourcing Playbook

Cabinet Office | 6 July 2023

The Cabinet Office has updated the Sourcing Playbook to incorporate a further update to the accompanying financial viability risk assessment tool, used by contracting authorities to help assess the economic and financial standing of potential suppliers. The Sourcing Playbook and financial viability risk assessment tool were last updated on 20 June 2023. A further update to the tool was issued on 6 July 2023.

PPN 06/23 The Commercial Playbook

Cabinet Office | 20 June 2023

The Cabinet Office has launched a second consultation on draft regulations to implement the new public procurement regime established by the Procurement Bill (which is still progressing in Parliament). 


NHS platform a ‘major force for good’ after identifying millions of savings in its first year

Cabinet Office | 26 July 2023

Funding by the Crown Commercial Service has helped NHS procurement teams identify millions in potential savings.

Procurement Bill [HL] Consideration of Commons amendments

UK Parliament | 25 July 2023

A date has been scheduled for the House of Lords consideration of Commons amendments to the Procurement Bill after the summer recess.

Court of Appeal considers in procurement case when respondent’s notice is cross-appeal in disguise

Local Government Lawyer | 21 July 2023

The Court of Appeal has ruled on the correct use of a respondent’s notice in a dispute over the award of an NHS contract for orthodontic services in East Hampshire.

Part 2 Consultation on draft regulations to implement the Procurement Bill

Cabinet Office | 17 July 2023

This is a consultation on the secondary legislation required to implement the new public procurement regime established by the Procurement Bill. This consultation closes at 11:45 pm on 25 August 2023.

High Court grants council summary judgment in procurement challenge over bailiff services

Local Government Lawyer | 6 July 2023

A bailiff firm has failed in a High Court challenge to Breckland Council’s appointment of a rival to a contract on behalf of Anglia Revenues Partnership. Read the judgement in full here: Dukes Bailiffs Ltd v Breckland Council [2023] EWHC 1569 (TCC).

Back to top

Disputes & Regulatory Support

Starting afresh: determining the responsible local authority for section 117 aftercare following the Supreme Court’s judgment in the Worcestershire case

The case of Worcestershire County Council v Secretary of State for Health & Social Care has come to a conclusion, following the Supreme Court’s judgment.

In summary, the Supreme Court overturned the decision of the Court of Appeal, finding that local authority responsibility for section 117 aftercare will reset where an individual in receipt of aftercare services is re-detained under a qualifying provision of the Mental Health Act 1983 (the “MHA 1983”). Responsibility for section 117 aftercare will depend on where the person was “ordinarily resident” immediately before the most recent detention. Key points to note are:

  • The duty under 117(2) of the MHA 1983 to provide section 117 aftercare automatically ceases when a person becomes re-detained under a qualifying section of the MHA 1983 on the basis that they no longer fall within the categories of persons falling within the scope of section 117(2).
  • The duty to provide section 117 aftercare services will also be discharged where a formal decision is made by the responsible bodies that an individual no longer has a need for section 117 aftercare.
  • Ordinary residence should be given its ordinary meaning as set out in the case of Shah[1].
  • The Supreme Court also held that where a person lacks capacity, an adapted Shah test needs to be applied which requires consideration of the state of mind of the decision maker. This suggests that where a best interest decision regarding residence has been validly made, the placement will have been ‘adopted voluntarily’.

We anticipate that this decision will result in several local authorities seeking to transfer the section 117 duty. Please see our article on the Supreme Court judgment for further detail.

Publications & Guidance

National deprivation of liberty court: Data trends

Nuffield Family Justice Observatory | August 2023

In July 2022 the President of the Family Division launched the national deprivation of liberty court. Based at the Royal Courts of Justice, it deals with all new applications seeking authorisation to deprive children of their liberty under the inherent jurisdiction and will run for a 12-month pilot phase initially. The Nuffield Family Justice Observatory was invited to collect and publish data on these applications. This monthly briefing highlights high-level data trends.

Guide to Judicial Conduct – Revised July 2023

Courts and Tribunals Judiciary | 27 July 2023

This Guide is intended to assist judges, tribunal members, coroners and magistrates, in relation to their conduct. It is based on the principle that responsibility for deciding whether or not a particular activity or course of conduct is appropriate rests with each individual judicial office holder.

Increasing the use of mediation in the civil justice system

Ministry of Justice | 25 July 2023

The Ministry of Justice has published the government’s response to the consultation on Government’s proposals to increase the use of mediation in the civil justice system.


R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent)

The Supreme Court | 10 August 2023

The Supreme Court has upheld Worcestershire County Council’s appeal and has concluded that when determining the responsible social care commissioner for section 117 aftercare, bodies must look to where the individual was immediately detained prior to each qualifying detention. The impact of this decision is that responsibility will no longer stick with a local authority where an individual has a subsequent detention under a qualifying provision of the Mental Health Act 1983.


Council hit by High Court challenge to adoption of Local Plan Part 2

Local Government Lawyer | 14 August 2023

A High Court Judge has given permission for a legal challenge to the adoption of the Waverley Borough Local Plan Part 2 (LPP2), with the hearing expected to take place over two days, potentially in the autumn.

NHS Trust seeking £1.8m in contributions over 2,200 home development fails in High Court challenge

Local Government Lawyer | 10 August 2023

In R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC and Ors [2023] EWHC 1995 (Admin), the High Court has refused an NHS trust permission for a judicial review challenge over a decision by three local councils to reject its request for developer contributions towards healthcare service provision before approving a 2,200-dwelling development.

Transport Secretary wins Supreme Court appeal over determinations on certificates of appropriate alternative development

Local Government Lawyer | 10 August 2023

The Supreme Court has allowed an appeal by the Secretary of State for Transport over the way in which compensation is calculated for land compulsory purchased for Birmingham’s Curzon Street HS2 station.

Court of Appeal rules on “hot potato” issue of decision between care order, supervision order or no order when child placed at home

Local Government Lawyer | 8 August 2023

The Court of Appeal has allowed an appeal by a mother and made supervision orders in place of care orders for all three of her children, who are placed at home. In JW (Child at Home under Care Order) [2023] EWCA Civ 944 Sir Andrew McFarlane, President of the Family Division, said: “For some years it has been recognised that a difference exists in the approach taken by courts in different regions when determining whether a final care order, supervision order or no order should be made when care proceedings conclude with a plan for the subject child to be placed, or remain living, at home with their parent(s).

ICO backs reliance on professional privilege exemption for legal advice amid claims council did not have “client-adviser” relationship

Local Government Lawyer | 7 August 2023

The Information Commissioner's Office (ICO) has dismissed a complaint that the London Borough of Haringey was wrong to rely on legal professional privilege grounds when it refused to disclose legal advice that it had received, despite a claim that it did not have the proper client-adviser relationship.

MoJ faces threat from bar over fixed recoverable costs plan

Law Gazette | 4 August 2023

The Ministry of Justice is facing a legal challenge from the bar over its fixed recoverable costs (FRC) regime, which is set for expansion on 1 October. The Bar Council is preparing a letter before action.

Council defeats Court of Appeal challenge over rule in constitution on councillor voting and deferred planning applications

Local Government Lawyer | 3 August 2023

In The Spitalfields Historic Building Trust, R (On the Application Of) v London Borough Of Tower Hamlets [2023] EWCA Civ 917, the London Borough of Tower Hamlets was entitled to make a rule that only councillors who had been present when a planning application had previously been considered could vote on deferred applications, the Court of Appeal has found. For analysis, please see: The power to regulate proceedings and place restrictions on councillor voting

Court of Appeal issues ruling on use of ‘move on’ accommodation

Local Government Lawyer | 2 August 2023

The Court of Appeal has dismissed an appeal brought by a young woman against a council’s decision that she was ‘intentionally homeless’. In Hodge v Folkestone and Hythe District Council [2023] EWCA Civ 896, Lady Justice Elisabeth Laing concluded that the council was entitled to decide that the room the woman, ‘A’, had been occupying had been 'settled accommodation' and that A had made a “deliberate decision to leave it”.

Court of Protection judge hands down ruling on capacity amid “some unhelpful differences of approach to the diagnosis of Learning Disability amongst healthcare professionals”

Local Government Lawyer | 1 August 2023

In TW v Middlesbrough Council [2023] EWCOP 30, a Court of Protection judge has determined that a man lacks capacity to make decisions about where he lives, his care, and his use of the internet and social media.

Home Office hotel use for lone child asylum seekers 'unlawful'

The MJ | 28 July 2023

The High Court yesterday found the Home Office’s use of hotels to house lone child asylum seekers to be unlawful. It comes after the charity Every Child Protected Against Trafficking brought legal action against the department over the practice of housing unaccompanied youngsters in Home Office-run hotels since at least December 2021.

Council pursues injunction to stop developers selling more houses on major scheme, over failure to provide facilities set out in s106 agreement

Local Government Lawyer | 28 July 2023

Harlow Council has applied for an injunction against the three housebuilders of a major scheme, for failing to uphold agreements to provide community facilities for its residents.

Judge orders council to conduct human rights assessment about withdrawing support from failed asylum seeker

Local Government Lawyer | 27 July 2023

The London Borough of Croydon must conduct a human rights assessment of an Albanian from whom it is seeking to withdraw support, the High Court has said.

Council defeats Supreme Court appeal over gang-related injunctions and standard of proof

Local Government Lawyer | 19 July 2023

In Jones v Birmingham City Council and another [2023] UKSC 27, a seven-justice panel of the Supreme Court has unanimously dismissed an appeal over the standard of proof required for the imposition of a gang-related injunction.

High Court to hear three linked judicial review claims this week over accommodation of unaccompanied asylum-seeking children in hotels, as county issues section 5 report

Local Government Lawyer | 18 July 2023

The High Court will this week hear three separate judicial review claims involving Kent County Council, Brighton & Hove City Council, children's safeguarding charity ECPAT, and the Home Office in relation to the care of unaccompanied asylum-seeking children (UASC) and their accommodation in hotels by the Secretary of State for the Home Department.

Councils win permission for judicial review over Home Office decision to use airfields for asylum seeker accommodation

Local Government Lawyer | 14 July 2023

The High Court has agreed to hear two judicial review challenges brought by Braintree District Council and West Lindsey District Council over plans to house asylum seekers on disused airfields in their areas.

Tory MP criticises council decision to back away from asylum seeker accommodation judicial review

Local Government Lawyer | 14 July 2023

A decision by Stafford Borough Council not to pursue a judicial review of a planning inspector's decision to overturn the council's planning refusal for disused student flats to become asylum seeker accommodation has been questioned by the area’s local MP.

High Court to consider lawfulness of remote mental health assessments before renewals of hospital detention renewals, guardianship and community treatment

Local Government Lawyer | 12 July 2023

The High Court is to determine whether examinations undertaken by medical practitioners before recommending renewed detention in hospital under the Mental Health Act (MHA) 1983 can be carried out remotely.

[1] R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309.

Back to top

Resources Library

Social Housing (Regulation) Act 2023
Firefighters’ Pension Scheme - Double Trouble Ahead?
Covid Inquiry Update – As Module 1 hearings close, thoughts turn to Module 2
Public Charge Point Regulations 2023
Health and Care Update - July 2023

All Bevan Brittan articles and news


Have you registered for…

7 September 2023, 12:30 pm – 1:30 pm
When might mediation be helpful in the Court of Protection context?

27 September 2023, 10 am – 11 am
Service Change: Navigating public law requirements

3 October, 12:30 pm – 1:30 pm
Health and Safety considerations for construction on Health and Social Care sites

5 October, 12:30 pm – 1:30 pm
Distinguishing unwise decision-making from lacking capacity

19 October, 12:30 pm – 1:30 pm
Case Law Update – Mental Health Act 1983

All forthcoming webinars

On Demand

Practical and Legal Guidance for Assessing Capacity

Back to top

Our use of cookies

We use necessary cookies to make our site work. We'd also like to set optional analytics cookies to help us improve it. We won't set optional cookies unless you enable them. Using this tool will set a cookie on your device to remember your preferences. For more detailed information about the cookies we use, see our Cookies page.

Necessary cookies

Necessary cookies enable core functionality such as security, network management, and accessibility. You may disable these by changing your browser settings, but this may affect how the website functions.

Analytics cookies

We'd like to set Google Analytics cookies to help us to improve our website by collection and reporting information on how you use it. The cookies collect information in a way that does not directly identify anyone.
For more information on how these cookies work, please see our Cookies page.