Authority Update

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:

Adult Social Services	Governance
Anti Social Behaviour	Health and Social Care
Business Improvement Districts	Highways
Children's Services	Housing
Commons and Village Greens	Police
Communities	Procurement
Delivery of Services	Public Health
Economic Development	Traffic and Transport
Education

 

Adult Social Services

Social Care Institute for Excellence: Care Act – Commissioning independent advocacy: under the Care Act 2014, local authorities will have to provide independent advocacy when someone has ‘substantial difficulty’ being involved in the process of care, and does not have an appropriate individual to support them. This guide is aimed at commissioners charged with meeting the new duties to provide advocacy under the Act. It will help commissioning officers in local authorities think through their new duties and understand what they are required to do to comply with the new requirements of the Act. (28 October 2014)

DH: Adult Social Care Outcomes Framework (ASCOF) 2015 to 2016: this framework sets out the indicators for measuring adult social care outcomes in 2015 and 2016. It supports councils to improve the quality of care and support services they provide, gives a national overview of adult social care outcomes in 2013 to 2014 and looks at how the framework will be developed in future. (14 November 2014)

R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin) (Admin Ct): the court granted a declaration that ECC was the local authority responsible for funding care for services for VC, a young woman with a troubled mental health history following a childhood brain injury, under s.117 of the Mental Health Act 1983 in the period following VC's discharge from detention under s.3 of that Act. The judge stated that the context and purpose of s.117 pointed to an interpretation that was as straightforward as possible, with the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. Application of a relatively straightforward test might lead to anomalous cases, and there could be good policy reasons for having a system that did not depend solely on residence at a particular date. However, such anomalies would arise because residence was tested only at the point immediately before detention and took no account of what might be a long term history of health interventions by authorities that might be regarded as having assumed some responsibility for the patient; it was not because there was anything unworkable or capricious in the evaluation of where the person was actually resident at that date. There were no such factors in this case: when VC moved to a hospital in ECC's area, it was not as a temporary move away from an existing place that remained available to her. No doubt she would not have been expected to stay there for a very long time, but it was the place at which she was living unless and until she actually moved somewhere else. (29 October 2014)

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

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Anti Social Behaviour

DCLG: Offensive and detrimental material: this letter from Communities Secretary Eric Pickles and David Delew, the Chief Executive of the Community Security Trust, to council leaders on their powers under Part 6 of the Anti Social Behaviour Act 2003 to swiftly remove any physical sign of hatred on any property in order to minimise the risk of increased tensions. It stresses the importance of removing racist graffiti quickly, and of reporting and recording racist and anti-semitic daubings to the police. (10 November 2014) 

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

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Business Improvement Districts

DCLG: Review of Business Improvement Districts: the Secretary of State made a commitment to review Business Improvement Districts (BIDs), as part of his town centre announcement in December 2013. This paper summarises the outcome of the review and sets out the changes that DCLG intends to implement, including:

• adding BIDs bodies to the list of relevant bodies that can challenge to run services under the Right to Challenge;
• guidance to encourage local authorities to involve BID contribution at planning committees on relevant applications and ensure their views are heard
• setting out in Community Infrastructure Levy guidance the importance of local authorities working with BID bodies when developing CIL charges and identifying appropriate infrastructure;
• stengthening BID bodies' accountability and quality, e.g. by requiring them to publish annual report and accounts; and
• further work on the issue of local authority charges for BID levy collection.

(10 November 2014)

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

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Children's Services

National Adoption Leadership Board: Impact of court judgments on adoption – What the judgments do and do not say: this 'mythbuster' guide looks at recent court judgments on adoption, in particular Re B-S (Children) [2013] EWCA Civ 1146. The guide is designed to help everyone who deals with these complex issues be clear and confident about what they need to do in adoption cases. It states that: "the judgments do not alter the legal test for adoption. Courts must be provided with expert, high quality, evidence-based analysis of all realistic options for a child and the arguments for and against each of these options. This does not mean every possible option. The judgment in Re B-S clearly states that the "evidence must address all the options which are realistically possible".  Where such analysis has been carried out and the local authority is satisfied that adoption is the option required in order to meet the best interests of the child, it should be confident in presenting the case to court with a care plan for adoption." The guide also clarifies some myths that have sprung up about what courts will need to consider in adoption cases. (November 2014)

LGA: Must know – Children's services: Making best use of scarce resources: good practice guidance for children's services authorities on how to make a shift in how the budget is distributed and invest in prevention in order to reduce demand for high-cost services and help build sustainability into budgets. It highlights how savings have been made by councils who have strengthened their commissioning arrangements and invested in preventative measures. (3 November 2014)

DH: Interim guidance for Troubled Families Programme early starter areas – Sharing health information about patients and service users with troubled families: DCLG, DH, NHS England and Public Health England have developed a national health offer to support the expanded Troubled Families programme. This is an initiative to improve the lives of up to 400,000 families with multiple problems, including families with mental and physical health problems, affected by domestic violence and with vulnerable children. This data share protocol sets out how NHS and Adult Social Care organisations can work within the Information Governance Alliance’s five rules for information sharing to share information in the interests of families, in order to identify families who could benefit from the Troubled Families Programme.
There is also includes guidance for health professionals and their partners on Leadership and on Health skills and training. (5 November 2014)

DCLG: Financial framework for the expanded Troubled Families programme: in June 2013, the Government announced plans to expand the Troubled Families programme for a further 5 years from 2015 to 2016 and reach up to an additional 400,000 families across England. Budget 2014 announced that the highest performing areas would be offered the opportunity to start delivery of the expanded Troubled Families programme early - during 2014 to 2015. This financial framework supports the early starters to deliver the programme. The Annex contains data sharing guidance and principles. (14 November 2014)

DfE: £19 million of support available for adoptive families: announces that the Adoption Support Fund is to be rolled out nationwide from May 2015 after extremely successful pilots across 10 councils. The fund helps pay for essential therapy services for adoptive families, such as behavioural therapy and family support sessions, as and when they need it. Support from the fund will be available after the adoption court order and can be used to purchase services from the private and voluntary sector, as well as councils and CAMHS. The Government will fully fund the Adoption Support Fund in the first year, whilst committing in the long term to the pot being jointly funded by councils and government. (15 November 2014)

R (C1 and C2) v Hackney LBC [2014] EWHC 3670 (Admin) (Admin Ct): the court has held that s.27 of the Children Act 1989 (co-operation between authorities) does not apply to a situation in which one department requests help from another department within the same authority.
C applied for judicial review of the decision of the Council's housing department not to comply with the request for assistance from its children's services department under s.27 that the family be provided with a three bedroom property with access to outdoor space. This request resulted from a consent order made in earlier judicial review proceedings that incorporated an undertaking on the part of the Council to make a request under s.27 in the form set out in a letter annexed to the Order.
The court refused C's application, agreeing with the Council's contention that its children's services department and housing department were both operating within the environment of one overarching unitary authority and that, on its proper construction, s.27 could only apply in circumstances in which one authority was requesting help from another authority. C's argument that it would be absurd if a distinction could be drawn between, on the one hand, a children's services authority in a shire county requesting help from a district council with housing functions and, on the other, a unitary authority from its own housing department. might have had greater force but for the fact that C had over-estimated the practical public law consequences of a s.27 referral in any event. The decision of the House of Lords in R v Northavon DC ex p. Smith [1994] 2 A.C. 402 demonstrated a marked reluctance on the part of their Lordships to allow circumstances to arise in which s.27 could be used as a vehicle to facilitate judicial review challenges. (7 November 2014)

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

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Commons and Village Greens

Commons Registration (England) Regulations 2014 (SI 2014/3038): these regulations, which come into force on 15 December 2014, provide for the maintenance of the registers of common land and town and village greens, including the procedure for applications to amend them under Part 1 of the Commons Act 2006. They apply in full to the areas of Cumbria, North Yorkshire and the pioneer areas which were previously subject to the Commons Registration (England) Regulations 2008 (SI 2008/1961), but only partially elsewhere in England in respect of five types of application to correct historic mistakes in the registers. They revoke and replace the 2008 regulations. (14 November 2014)

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

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Communities

DCLG: Milestone reached as community rights uses hit 3,000: reports that the total number of uses of the community rights has now hit 3,000, with more than 1,500 community assets and green spaces listed and 1,200 neighbourhood plans well underway.
DCLG has also published an interactive community rights map, enabling people to find out about registered buildings and other community rights uses in their area. (11 November 2014)

Pub is the Hub: Community ownership and running of pubs: guidance to help local people to take ownership of their beloved pub and revitalise these important assets on behalf of the wider community. It suggests questions to consider when deciding whether to take over the running of a local pub. It sets out six different options for community groups in running a pub as a legal entity, with examples.
The Community Pubs Minister Kris Hopkins has announced £50,000 of extra funding for the Plunkett Foundation which runs a telephone support line for communities who fear their pub might be under threat. (11 November 2014)

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

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Delivery of Services

DCLG: Delivering Differently in Neighbourhoods prospectus: invites local authorities (including parish and town councils) to bid for unringfenced grants of up to £90,000 under the Delivering Differently in Neighbourhoods programme. The grants will support projects to develop neighbourhood service approaches in specific areas or across an authority or authorities, particularly those that involve the voluntary and community sector and the wider community in designing and delivering services. DCLG is particularly interested in bids across three service areas: adult social care; children's social care; and environment and culture. The closing date for Expressions of Interest is 15 December 2014. (3 November 2014)

Emergency Services Collaboration Working Group: Emergency services collaboration – The current picture: this report provides a detailed overview of the most significant collaboration projects between emergency services in 2014. The working group was formed in September 2014 to support and drive closer working between the emergency services and as a means to share best practice among services and their governing authorities. Their report provides a baseline for the working group before they commission research into those areas of collaboration that look set to improve services. The forthcoming research will provide a firm evidence base for those services wishing to pursue their own transformational projects and for future policy development.
The Fire Minister Penny Mordaunt has given a speech to the Blue Light Innovation 2014 conference on the noticeable shift by the emergency services towards greater partnership working. (12 November 2014)

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

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Economic Development

LGA: How the other half grows – The future of prosperity and public services in non-metropolitan England: this interim report from the Independent Commission on Economic Growth and the Future of Public Services in Non-Metropolitan England illustrates the economic potential of non-metropolitan areas and sets out messages for central and local government. It calls for the devolution of decisions over skills and training, housing, infrastructure and transport to promote stronger growth. The Commission invites comments on these proposals to inform its final recommendations in early 2015. (13 November 2014)

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

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Education

DfE: SEND funding – Longer-term changes: in July 2014, the Minister for Schools, David Laws, announced changes to the distribution of funding for schools. He acknowledged the need to reform the distribution of funding for pupils with high-cost SEND, and explained that this would be a priority for reform during the next parliament. Any funding changes would also have to support the reforms to the wider system of support for children and young people with SEND in the Children and Families Act 2014. DfE has now commissioned research into SEND funding. It is also inviting interested parties for comments and suggestions about to distribute SEN funding more fairly. The consultation closes on 27 February 2015. (13 November 2014)

School Companies (Amendment) Regulations 2014 (SI 2014/2923): these regulations, which come into force on 1 December 2014, amend SI 2002/2978 relating to the audit requirements on school companies, which are companies formed or joined by governing bodies of maintained schools using their powers under s.11 of the Education Act 2002. The amendments reduce the burdens on schools by allowing school companies to be exempt from the requirement to provide accounts for the first six months of their operation, if they meet the criteria for small companies under the Companies Act 2006. They also introduce a requirement for unaudited accounts to be independently examined, in line with the Charities Act 2011. (7 November 2014)

Mosekari v Lewisham LBC [2014] EWHC 3617 (Admin) (Admin Ct): M, a teacher, applied for judicial review of the Council's decision that it did not have power to grant an exemption from the requirement to complete the Statutory Induction Period under the Education (Induction Arrangements for School Teachers) (England) Regulations 2012. M had qualified as a teacher in South Africa and had been employed as a teacher in one of the Council's schools from 2001. When he tried to take up new employment at a school outside the borough, his potential employer discovered that he had apparently not completed the mandatory Statutory Induction Period. The matter was investigated and the Council found that it had no record of M having completed the Statutory Induction Period. It concluded that it did not have power to grant an exemption. M contended that the Council had a discretion to accept that the Statutory Induction Period had effectively been completed and that it was unfair not to grant such an exemption from any further requirement.  He also argued that in allowing his continued employment at the school for 11 years, the Council had created a legitimate expectation that all training requirements had been satisfactorily completed. The council submitted that it could not grant such an exemption, even if minded to, and that there could be no legitimate expectation created to grant something which was not within its power. 
The court held, refusing M's application, that the statutory requirements for the training of teachers were quite rightly very stringent. In applying those regulations to the individual teacher there had to be proportionality between the public interest and the burden placed on the individual. Here, M had failed to complete the Statutory Induction Period in the manner prescribed by the regulations. There was no power to grant a general exemption and there could not therefore be a legitimate expectation that such exemption could be granted. Despite M's skill as a teacher, the requirements were obligatory and the Council did not act irrationally or unfairly in refusing to deem that the obligations had been met or to waive such requirement. (5 November 2014)

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

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Governance

DCLG: London Borough of Tower Hamlets council inspection: the Communities Secretary has made an oral statement to Parliament on the governance of Tower Hamlets LBC. He announces that DCLG has published a report by PwC following their inspection of Tower Hamlets, which found obfuscation, denial, secrecy, the breakdown of democratic scrutiny and accountability, a culture of cronyism risking the corrupt spending of public funds and that the Council had failed in numerous respects to comply with their best value duty. The Secretary of State is considering exercising his powers of intervention to secure compliance with the duty and Paul Rowsell, Deputy Director, Democracy at DCLG has written to the Head of Paid Services at Tower Hamlets, inviting representations from the Council about PwC's inspection report and the proposed intervention package.
The Secretary of State proposes to appoint a team of three commissioners to oversee or exercise certain functions of the Council until March 2017. This statement gives details of his action plan for the commissioners. (4 November 2014)

DCLG: Letter to Tower Hamlets council – Property disposals and transfers: this letter from Paul Rowsell, Deputy Director, Democracy at DCLG to the Head of Paid Service at Tower Hamlets LBC accepts the council’s undertakings in relation to some specific property disposal transactions, and confirms that the Government does not intend to issue an emergency direction with regard to these matters. The Secretary of State had sought these undertakings in relation to specific property transactions in a letter of 7 November 2014, in which he highlighted the undertakings received from the Council in relation to grant making and the appointment and/or designation of statutory officers, and requested further information and undertakings in relation to property disposals. (7 November 2014)

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

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Health and Social Care

NAO: Planning for the Better Care Fund: this reports finds that the Better Care Fund is an innovative idea but the quality of early preparation and planning did not match the scale of the ambition. Current plans forecast £314m of savings for the NHS rather than the £1bn in early planning assumptions. It states that the £1bn financial savings assumption was ignored, the early programme management was inadequate, and the changes to the programme design undermined the timely delivery of local plans and local government's confidence in the Fund's value. Ministers were right to pause and redesign the scheme in April this year when they realised it would not meet their expectations. The Fund still contains bold assumptions about the financial savings expected in 2015-16 from reductions in emergency admissions. To offer value for money, the Departments need to ensure more effective support to local areas, better joint working between health bodies and local government, and improved evidence on effectiveness. (11 November 2014)

DH: Draft revised statutory guidance to implement the strategy for adults with autism in England: seeks views on draft statutory guidance for local authorities and NHS organisations to support the implementation of Think Autism, the update to the 2010 adult autism strategy. It looks at issues such as staff training, identification and diagnosis of autism in adults and the planning of services, preventative support and safeguarding and employment for adults with autism. The consultation closes on 19 December 2014. (7 November 2014)

Social Care Institute for Excellence: The Mental Capacity Act (MCA) and care planning: this report shows commissioners and providers of care how to embed the principles of the MCA into care and support planning across the board. It encourages and challenges providers to perform care planning differently and better; to think about promoting rights and liberty, promoting people’s capacity to make decisions about their life and their care, and supporting people to be involved in every decision about their care. It also encourages commissioners of residential and domiciliary care services to question and scrutinise care planning to ensure that it meets the requirements of the MCA and delivers human rights. (31 October 2014)

HealthWatch: Suffering in silence – Listening to consumer experiences of the health and social care complaints system: sets out the findings of Healthwatch's investigation into the complaints system in health and social care. It finds that, whilst there has been significant work at a system level to improve processes, many of the public say that on the ground hospitals, GPs and care homes are still failing to grasp fundamental principles about how to deal with those they have let down. NHS and local authority red tape is still making it too difficult for people to complain, there is not enough independent advice and support out there to help those in need and, above all, the public is given little incentive to come forward about their experiences. The report report outlines the case for reform of the complaints system including calling for cross-party support and recognition that the changes needed are of such significance as to require legislative time following the next election. (14 October 2014)

College of Social Work and RCGP: GPs and social workers – Partners for better care: Delivering health and social care integration together: this report argues that GPs and social workers share a common interest in leading and creating system change that will support better outcomes and be economically sustainable. Social workers have a vital role in building the strong, resilient communities that are needed. It demonstrates through evidence and case studies how the professions can work together as local leaders to make integration in local communities a practical reality. (29 October 2014)

Welsh Government: Implementation of the Social Services and Well-being (Wales) Act 2014: the Social Services and Well-being (Wales) Act 2014 forms the basis for a new statutory framework for social care in Wales. The Welsh Government is now seeking views on regulations and Codes of Practice under a number of Parts of the Act: 

• Part 2 (General Functions) containing a number of regulation-making powers;
• Part 3 (Assessment) and Part 4 (Meeting needs) covering: assessing the needs of individuals; ow to decide whether people are eligible for care and support; direct payments; and the planning of care and support;
• Part 7 (Safeguarding) covering: children and adults at risk; a new Adult Protection and Support Order; new Safeguarding Adults Boards; and a National Independent Safeguarding Board; and
• Part 11 (Miscellaneous and general) covering: prisoners and young people in youth detention; ordinary residence; and disputes about ordinary residence.

The consultations each close on 2 February 2015. (6 November 2014)

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

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Highways

DfT: Local authority highways maintenance funding 2015/16 to 2020/21: seeks further views for the allocation of funding for road maintenance to local authorities outside London over the next five years. The consultation closes on 21 November 2014. (10 November 2014)

LV=: Britain’s pothole problem worsens: research from insurers LV= Road Rescue finds that councils in some of the areas worst hit by last winter’s storms have faced a huge rise in compensation claims from motorists whose cars have been damaged by potholes. Across the UK, councils have received more than 26,000 compensation claims for damage relating to potholes in the past financial year, an increase of 13% from 2011/2012. (7 November 2014)

DfT: Government launches new congestion-busting guidance: DfT has issued seven new traffic advisory leaflets to cut down on congestion and speed up the completion of road works. They provide cost-effective and time-saving tips for utility companies and highway authorities who need to carry out work on roads. (12 November 2014)

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

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Housing

Welsh Government: Houses into homes – Third interim evaluation report: the Houses into Homes scheme, which has been supported by £20m of Welsh Government investment in its first two years, provides interest free loans to owners of properties which have been empty for more than six months, to bring the properties back into use for sale or rent. This report shows that 2,178 empty homes were brought back into use in 2013/14 – a 99% increase on 2012/13, the first year of the scheme, and a 112% increase on 2011/12, the year before the scheme started. A total of 230 loans were approved over the first two years of the project. The total value of these loans was over £9.44m, with £7.4m worth of loans being approved in 2013/14. (12 November 2014) 

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

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Licensing

Home Office: Community and Ancillary Sellers Notice consultation: seeks views on the proposed Community and Ancillary Sellers Notice (CAN), a new authorisation under the Licensing Act 2003 that will benefit community groups and particular small businesses (such as B&B providers) who wish to sell limited amounts of alcohol as part of a wider service. There is also a fact sheet. The consultation closes on 9 December 2014. (11 November 2014)

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

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Police

Home Office: Police innovation fund – Bidding form: the Police Innovation Fund supports projects aimed at transforming policing through innovation and collaboration. The Home Office is now inviting Police and Crime Commissioners to bid for a share of the 2015 to 2016 fund. The assessment criteria guide explains how the bids will be judged. The closing date for submission of bids is 2 January 2015.  (7 November 2014)

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

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Procurement

Bevan Brittan byte size procurement updates: we have published two more articles in our "byte size" legal update series, in which we look at the new Public Sector Directive and deconstruct it into a topic based approach. For each topic we provide a brief explanation of the most relevant new and updated provisions in the new Directive. We also highlight some of the practical implications of those provisions.
The latest articles are:

• The light touch regime
• The Young reforms: Part 1 - Abolition of the pre-qualification process for low value contracts.

We have also revised our Byte Size procurement updates, nos. 1 - 10, so that they now refer to the Draft Public Contracts Regulations 2015 as well as the Directive. We have also taken the opportunity to make some additional changes to Byte Size procurement update no.8 on Award criteria and lifecycle costing.

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

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Public Health

LGA: Healthwatch – On the board toolkit: Developing skills for effectiveness on health and wellbeing boards: this toolkit supports local Healthwatch representatives on their health and wellbeing board. It provides guidance on the skills the local Healthwatch representative needs to effectively represent the local Healthwatch on the HWB, along with tools that representatives can use for self-development of leadership capacity. (10 November 2014)

NHS Clinical Commissioners: A shared agenda – Creating an equal partnership with CCGs in health and wellbeing boards: this briefing shares the views and thoughts of CCGs on the development and direction of health and wellbeing boards (HWBs), as well as their ambitions for future joint working. CCGs believe in the potential of HWBs as the place that can bring together the NHS, local government and other key players in the health and care system to find the right solutions for their patients and local populations. It also highlights that HWBs are still very much in development, and need time to grow and mature, but they are not commissioning bodies. (10 November 2014)

DH: Health visiting programme and 0-5 commissioning of public health services: this factsheet provides information for health practitioners, providers and local authorities on the Healthy Child Programme and the Health Visiting Programme, the importance of health visiting, and the transfer of service commissioning for 0 to 5 to local authorities from 2015. (12 November 2014)

DH: Scope of 0-5 public health services transition: planning and paying for public health services for 0 to 5 year olds will transfer from the NHS to local authorities in October 2015. This paper sets out the scope of 0-5 children’s public health commissioning in greater detail, providing background information and further detail that capture existing commissioned services, where they belong currently and where their future destinations are planned. (14 November 2014)

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

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Traffic and Transport

Isle of Wight Council v HM Revenue and Customs [2014] UKUT 446 (TCC): this case concerned claims made to HMRC by the Council and other local authorities under s.80 of the Value Added Tax Act 1994 for repayment of the VAT included in charges made by them to members of the public for off-street car parking. The issue was whether the Council was entitled to be treated as a non-taxable person in respect of its supplies of off-street parking – this depended upon whether non-taxation would lead to significant distortions of competition within the meaning of Art.4.5 of the Sixth VAT Directive 77/388.
The FTT found in favour of HMRC, ruling that non-taxation of local authorities would distort competition in the off-street car parking market in the areas of pricing and outsourcing. The FTT stated that while non-taxation would not directly affect local authorities’ decisions on opening new car parks, local authority charges would find a lower level in circumstances of non-taxation than of taxation; this would in turn affect the pattern of provision of off-street car parking. The Council appealed on a question of law, namely that the FTT had misunderstood the legal framework governing the setting of local authority car parking charges. It contended that the FTT’s finding of  fact that the absence of taxation would reduce the upward pressure on prices was fatally wrong because it failed to take account of the provisions, particularly of s.122, of the Road Traffic Regulation Act 1984 (RTRA).
The Upper Tribunal held, dismissing the appeal, that the FTT had not erred in concluding that, in the absence of taxation, the upward pressures on local authority charges would be reduced nor in its understanding of the relevant law and the practice of local authorities. It was also correct to find that the non taxation of local authority-provided off-street car parking would distort the provision of outsourcing.
It was legitimate for a local authority to structure its car parking prices so as to discourage parking in some places, and to encourage it in others, and that it was likewise legitimate to use surplus revenue generated from some car parks to make up for a shortfall in revenue from car parks which, whether for policy reasons or otherwise, were run at a loss, or where parking was free of charge. Thus there was no requirement that income and expenditure be balanced on a car park by car park basis. However, if, as established by case law, the RTRA was not a fiscal measure, then it must follow that overall, and taking one year with another, the cost to the local authority of meeting its statutory obligation of providing sufficient off-street parking and the revenue generated from the activity must be broadly equal. The FTT did not misunderstand the policy considerations which affect local authority decisions in practice. If local authority supplied off-street parking were not taxed, local authorities would not need to consider raising their charges in the event of an increase in the rate of VAT whereas commercial providers would be compelled to do so. While there would be little economic difference, if there were parity of tax treatment, between outsourcing a car park so that the supplies to motorists were made by a commercial provider on the one hand, and merely outsourcing the management so that the supply to the motorist remained with the local authority on the other, there would be a significant difference of approach to outsourcing if commercial provision was taxed but local authority provision was not. (15 October 2014) 

DfT: The Blue Badge Scheme Local Authority Guidance (England): revised non-statutory guidance to local authorities in England on administering and enforcing the Blue Badge scheme, which helps disabled people with severe mobility problems to access goods and services, by allowing them to park close to their destination. (11 November 2014) 

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

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