Authority Update - 08/01/2016

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 four 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	Human Rights
Children's Services	Inshore Fisheries
Communities	Libraries
Delivery of Services	Maladministration
Economic Development	Officers
Education	Planning Procedures
Emergency Planning	Police
Finance	Procurement
Fire and Rescue Authorities	Public Health
Fraud	Regulatory Services
Health and Social Care	Traffic and Transport
Highways	Welfare and Benefits
Housing

Adult Social Services

DH: Response to the Supreme Court judgment / Deprivation of Liberty Safeguards: updated guidance as a result of the Supreme Court judgment in P v Cheshire West and Chester Council [2014] UKSC 19 that clarified an "acid test" for what constitutes a "deprivation of liberty", and subsequent judgments which have significant implications for the use of Deprivation of Liberty Safeguards (DoLS). It includes examples of actions taken by local partners in responding to increased numbers of DoLS applications. (14 December 2015)

DH: Interim report by the Chief Social Worker for Adults: this report by Lyn Romeo, Chief Social Worker for Adults, summarises work done to improve social work in adult services during 2015. (23 December 2015)

Welsh Government: Working together to reduce harm – Delivery plan 2016 – 2018: seeks views on a draft Delivery Plan that explains what the Welsh Government will do over the next three years to improve the outcomes of those affected by substance misuse. The consultation closes on 30 March 2016. (6 January 2016)

Welsh Government: Information and guidance on domestic abuse and sexual violence – Safeguarding older people (60+) in Wales: seeks views on draft guidance that aims to raise awareness of older people's experience of domestic abuse and sexual violence and to offer practical advice on how to provide effective services to this group. The guidance has been developed by the Welsh Government in partnership with the Older People's Commissioner. The consultation closes on 29 February 2016. (7 January 2016)

Care and Support (Charging) (Wales) Regulations 2015 (SI 2015/1843 (W.271)): these regulations, which come into force in Wales on 6 April 2016, set out the requirements which Welsh local authorities must follow when making a determination of the amount of the charges which apply in relation to care and support that they are providing or arranging or propose to provide or arrange in the course of carrying our their functions under Part 4 of the Social Services and Well-being (Wales) Act 2014. (3 November 2015)

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

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Children's Services

DfE: We will not stand by – failing children's services will be taken over: the Prime Minister has announced that poorly performing children’s services must improve or they will be taken over. Children’s services in local authorities, which have persistently failed in the past, will be taken over immediately. Sharper triggers will be put in place so an emergency Ofsted inspection can be ordered where there are concerns about an authority’s performance. If a local authority’s children’s services fails to improve within six months of their Ofsted inspection, a Commissioner will be put in place and high-performing local authorities, experts in child protection and charities will be brought in. (14 December 2015)

DfE: Children's social care services improvement notices: the Education Secretary has issued new Directions to Sandwell MBC and Norfolk CC requiring each council to take a number of steps to improve its children’s social care services. The Directions replace previous statutory directions issued on 22 July 2014 and 18 December 2013 respectively. (7 January 2016)

Ofsted: Local authority and children’s homes in England, inspection outcomes: sets out the key findings from Ofsted's inspection outcomes for local authority children’s services inspections from November 2013, and inspection outcomes for children's homes between 1 April and 30 September 2015. It finds that In the first six months of 2015, children’s homes showed an improved Overall effectiveness judgement profile compared to the same period the previous year. Around a quarter of local authorities were judged to be good for Overall effectiveness for the single inspection framework for inspecting services for children in need of help and protection, children looked after and care leavers. (15 December 2015) 

DfE: Notifications of private fostering arrangements in England: sets out the Government's response to the August 2015 consultation on a proposal to close down the annual private fostering data collected from local authorities. It announces that, in light of responses received, this data collection will close with immediate effect. DfE had recently issued guidance on the changes to the children in need census following the usual agreed timescales to allow local authorities and software suppliers time to implement the changes. This will help ensure that the extra sub-categories of the private fostering factors identified at the end of assessment will be included in the 2016 to 2017 children in need census. (16 December 2015) 

DfE: Improving practice in respect of children who return home from care: this research report looks into the work that local authorities do to support children who return home from care. It examines how local authorities: decide that a child is ready to come home from care; plan the child’s transition from care; support children who return from care and their families; monitor the children who have returned home from care; and train and supervise staff in charge of supporting children who return home from care. (17 December 2015)

DfE: Preventing extremism in the education and children's services sectors: updated guidance for schools and childcare providers on their legal duty to have due regard to prevent people from being drawn in to terrorism – the "Prevent duty".  (23 December 2015)

DfE: The impact of children’s centres – Studying the effects of children's centres in promoting better outcomes for young children and their families: this report forms part of the national evaluation of children’s centres in England research study. It looks at the effect of children’s centres on 13 measured outcomes for a large sample of families. (17 December 2015)

DfE: Changes in resourcing and characteristics of children’s centres: sets out the findings of research into how different types of children’s centres managed changes to budgets, staffing and services. (17 December 2015) 

Children (Secure Accommodation) (Wales) Regulations 2015 (SI 2015/1988 (W.298)): these regulations impose requirements on Welsh local authorities in relation to the placement of children in secure accommodation. They set the maximum period for which a local authority can hold a child in secure accommodation without authorisation from a court and impose restrictions on who may apply to a court for authorisation to hold a child in secure accommodation. The regulations come into force in Wales on 6 April 2016. (2 December 2015)

R (Nationwide Association of Fostering Providers) v Bristol City Council, Leeds City Council & Suffolk City Council [2015] EWHC 3615 (Admin) (Admin Ct): this case concerned local authorities' duty under s.22C of the Children Act 1989 to accommodate and maintain any child which it was looking after, and to place such a child in the "most appropriate placement available". The NAFP claimed that the local authorities had breached this duty as they operated policies which meant that in many cases they did not consider a placement with an independent foster provider unless and until no placement could be found with the local authority's in-house providers of foster care. The NAFP challenged the lawfulness of the approach taken by the local authorities. It contended that in order to be able to consider which placement was "the most appropriate", a local authority had to consider all placements available at the relevant time, which it could only do if the search for a placement was made with every potential foster provider.
The court held, refusing the NAFP's application, that the first requirement under s.22C was that arrangements had to be made for a looked after child to live with a parent or someone with parental responsibility. If that was not reasonably practicable or if it would not be consistent with the looked after child's welfare, the duty under s.22C(5) arose to place the child in "the most appropriate placement available". This meant whichever placement within the definition in s.22C(6) (kinship foster parent; local authority foster parent; children's home; some other arrangements) was most appropriate, the issues of welfare and the needs of the child being catered for by ss.17 and 22 of the Act. The duty did not involve any requirement to make a particular kind of search of any one of the placements identified in s.22C(6). If "placement" in s.22C(5) referred to the particular placement for the individual child, the duty imposed did not require a local authority to contact all providers of potentially appropriate placements at the same time for every looked after child.  The duty was an "outcome" duty, and how a local authority went about fulfilling that duty was a matter of policy within the discretion of the local authority subject to any express regulatory provisions. (15 December 2015)

R (MM) v Hounslow LBC [2015] EWHC 3731 (Admin) (Admin Ct): MM, who was aged 15 and diagnosed as autistic, sought judicial review of the Council's assessment of his needs and also those his mother, who was his carer. MM contended that the assessment underestimated the extent of his need for support, in particular the extent of his inability to look after himself, his need to be supervised, the extent of his challenging behaviour and his need for overnight support and suitable housing. He also claimed that it under-estimated the needs of his mother as his carer, particularly the impact on her health and well-being of his need for supervision, his challenging behaviour and his need for overnight support.
The court held, refusing the application, that it was reasonably open to the social worker, on her assessment of what MM was like, to come to the possible conclusions which she did about the number of hours of support a week which MM needed, overnight support and the adequacy of their accommodation. The recommendations which concluded the assessment could not be characterised as a care plan since they were drafted in very general terms with no concrete proposals about how the desired outcomes could be achieved, and one of the recommendations itself was for a Child in Need Plan to be prepared. However, it would have been premature for the Council to produce a care plan when MM's mother was challenging the lawfulness of the assessment in the High Court. The absence of a care plan, or the provision of services to meet the needs which the care plan had identified, or any costing of those services, could not be characterised as breaches by the Council of its statutory duties until it was known whether the assessment had survived this legal challenge. (18 December 2015)

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

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Communities

LGA: Councils' role in preventing terrorism: the Prevent duty for local authorities under the Counter-Terrorism and Security Act 2015 sets out the need for all local authorities and others to have "due regard to the need to prevent people from being drawn into terrorism". This document includes a number of case studies that outline the different ways in which local government has been responding to the need to tackle extremism in their local areas using a diverse range of avenues and programmes. (9 December 2015)

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

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Delivery of Services

LGA: A digital vision for local government: the LGA has published four inter-related papers that set out a high-level case for investing in a well-structured and comprehensive programme of support to enable local government to maximise the citizen benefits and costs savings that can be generated from fully exploiting the potential of digital in the public services:

Delivering better local online transactional services: highlights the specific opportunities to use digital tools and techniques to improve the ways in which citizens find information or carry out online transactions with local government while saving public money. It makes a case for exploiting and promoting more effectively the assets and good practice already available in the sector as well as for designing and implementing some key pieces of common digital infrastructure from which all councils could benefit.

Transforming local services through digital: this paper explores the wider potential of digital tools, technologies and approaches to support the fundamental redesign of local services so that they deliver better outcomes, in a more targeted and timely fashion, at less cost – building on existing exemplars.

Developing local digital leadership skills and capacity: examines how local government leadership skills and capacity can best be developed and supported, so that councils and their partners can apply appropriate digital solutions, deliver better outcomes, improve the experience of their shared customers and workforces and reduce costs.

Implementing programme leadership and support for digital: proposes a set of operating principles and identifies a small number of practical options for  establishing the coordinated programme required to drive forward the take-up of relevant digital tools, technologies and approaches across the local government sector and to tackle cross-cutting issues such as data sharing and procurement.

(9 December 2015)

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

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Economic Development

DEFRA: The Government response to the Independent Rural Proofing Implementation Review by Lord Cameron of Dillington: sets out the actions that the Government will take to make sure that the interests of rural communities and businesses are taken into account in its policies – ‘rural proofing’. The document is a response to the independent review which the previous government commissioned, to look at how effective rural proofing had been, and in particular how well government departments had used the package of rural proofing support information issued by DEFRA in July 2013. The review aimed to identify how well departments were designing their policies in order to deliver them in rural areas. The response details a number of measures to boost productivity and increase opportunities in rural areas. (17 December 2015)

HC Library: City Deals: City Deals are bespoke packages of funding and decision-making powers negotiated between central government and local authorities and/or Local Enterprise Partnerships and other local bodies. This research briefing gives a useful overview of City Deals, with details on the 27 that have been successfully negotiated since July 2012. (23 December 2015)

HC Library: Local Growth Deals: this research note looks at Growth Deals and allocations made to Local Enterprise Partnerships (LEPs). In the June 2013 Spending Review, the Government asked LEPs to develop multi-year local Strategic Economic Plans, which would then be used for negotiations on Growth Deals with the Government. These deals would see LEPs awarded funding from the Single Local Growth Fund, created in the 2013 Spending Review. In March 2014, all 39 LEPs submitted Strategic Economic Plans. In July 2014, the Government announced details of funding received by each LEP over the period 2015 - 2021. In January 2015, the Government expanded the deals, with LEPs awarded a further £1bn in total between 2016 and 2021. (23 December 2015)

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

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Education

DfE: Schools revenue funding settlement for 2016 to 2017: announces details of school revenue funding for 2016 to 2017, including the Dedicated Schools Grant (DSG), the Education Services Grant (ESG) and the Pupil Premium. (17 December 2015)

DfE: Funding admission appeals: sets out the Government's response to the November 2015 consultation on changes to the ‘Schemes for financing schools' statutory guidance by adding admission appeals to the list of services local authorities can charge to local authority maintained schools’ budgets. It announces that the Government is to proceed with the revised change to the scheme for financing schools guidance. From 2016-17, local authorities will be able to charge all schools, including those for which they are the admissions authority, for admission appeals. (17 December 2015)

DfE: Running a school – Myths and facts: this document addresses some common misconceptions about the activities schools are required to carry out. It covers both recurring myths and new myths on changes for the 2015 to 2016 academic year. (4 December 2015)

DfE: Understanding and dealing with issues relating to parental responsibility: departmental advice for schools and local authorities dealing with adults where each claims to have parental responsibility for a particular child. It explains the obligations and duties in relation to the rights and responsibilities of parents as defined by education legislation. (6 January 2016)

DfE: Keeping children safe in education – Proposed changes: seeks views on proposed revisions to guidance for schools on keeping children safe. Under the proposals, all schools will have to put in place strengthened measures to protect children from harm online, including cyber bullying, pornography and the risk of radicalisation. The consultation closes on 16 February 2016. (22 December 2015)

DfE: Area guidelines for SEND and alternative provision (BB104): guidance for school providers, local authorities, dioceses and building professionals to assist them in school building projects. it sets out non-statutory area guidelines for buildings which supersede the recommended areas in ‘Designing for disabled children and children with special educational needs’ (Building Bulletin 102). It also provides guidance on outdoor areas. The guidance does not cover hospital schools although some of the areas will be applicable, nor does it cover residential facilities. (16 December 2015)

Welsh Government: Revision of Inclusion and Pupil Support guidance: seeks views on draft revised non-statutory Inclusion and Pupil Support guidance that provides a basic outline of the requirements on schools and local authorities in respect of supporting and including all pupils. The guidance was originally published in 2006 and is being revised to reflect the legislative and policy changes that have occurred since. The consultation closes on 11 February 2016. (17 December 2015)

School and Early Years Finance (England) Regulations 2015 (SI 2015/2033): these regulations, which come into force on 7 January 2016, set out how local authorities set their education budgets and how they are to allocate funding from the individual schools budget to maintained schools and private, voluntary and independent providers of free early years provision (relevant early years providers) through a locally determined formula for the 2016-17 financial year. To a large degree, the 2015 Regulations make the same provisions as in the 2014 Regulations (SI 2014/3352), with some minor technical changes. (16 December 2015)

Deregulation Act 2015 (Commencement No. 4) Order 2015 (SI 2015/2074 (C.130)): this Order brings para.2 of Sch.16 to the Deregulation Act 2015 into force on 1 January 2016, relating to the reduction of burdens on schools. That paragraph removes the requirements in s.110 and s.111 of the School Standards and Framework Act 1998 regarding home-school agreements that set out the school’s aims, values, responsibilities and expectations of pupils and parents. (22 December 2015)

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

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Emergency Planning

PM's Office: Prime Minister announces more than £40m for flood defences: announces more than £40m funding to repair and improve flood defences following Storm Eva. (3 January 2016)
See also the HC Library's research briefing Winter floods 2015/16, which provides an overview of the recent flooding events ahead of an Opposition Day Debate on flooding. (5 January 2016) 

Welsh Government: £2.3m for flood protection in Wales announced by First Minister: the First Minister of Wales, Carwyn Jones, has said that £2.3m will be spent to support communities across Wales at risk of flooding. (4 January 2016)

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

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Finance

DCLG: Provisional local government finance settlement England, 2016 to 2017 and future years: sets out proposals for a 4-year funding package for English councils. It includes: 

based on Office for Budget Responsibility forecasts, overall local government spending would be higher in 2019 to 2020 than in 2015 to 2016 – total local government spend will increase from £40.3bn to £40.5bn; 

extra £3.5bn for adult social care: as announced in the Autumn Statement, up to £2bn will come from a new 2% social care precept to provide dedicated caring for the growing elderly population. A further £1.5bn will be available to councils to work with the NHS to ensure that care is available for older people following hospital treatment through the Better Care Fund; 

total funding for local councils will fall by 2.8% in 2016 to 2017, before rising again so that by 2019 to 2020 it is virtually unchanged; 

the Government will maintain the 2% council tax threshold, with a separate 2% dedicated precept where councils have adult social care responsibilities;

the extra cost of providing services in the most sparsely populated of areas will also be recognised through a rising Rural Services Delivery grant; 

in addition to keeping all business rates by 2020, the New Homes Bonus will be retained and reformed to provide greater encouragement for house building.

See also:

Guidance on flexible use of capital receipts: detail on the types of project that qualify for the right to use capital receipts on the revenue costs of reform projects, and the expected governance and transparency framework;

Council Tax referendum principles 2016 to 2017;

Council Tax setting in 2016 to 2017: The Government’s offer to adult social care authorities;

New Homes Bonus provisional allocations for 2016 to 2017;

the LGA's On the day briefing.

The closing date for comments on the proposed settlement for 2016/17 and for the approach to future local government finance settlements is 15 January 2016. (17 December 2015)

Welsh Government: Provisional Local Government Revenue and Capital Settlement 2016-17: set out details for the three-stage process of calculating the Welsh local government revenue and capital settlements 2016-17. The provisional settlement 2016-17 sets out the draft local government revenue and capital settlement 2016-17. It also includes information on the range of other grants being made available to local authorities in addition to the settlement. The provisional figure represents a decrease of just 1.4%, from the amount received last year on a like for like basis and includes £35m to continue the Welsh Government’s commitment to prioritise schools funding.  It includes an extra £21m for social services. This is essentially a consultative exercise with local authorities before agreeing the final settlement. The closing date for comments is 20 January 2016. (9 December 2015)

Centre for Cities: Beyond business rates – Incentivising cities to grow: this report explores the impact of the Government's business rate devolution proposals and argues for the need to go further. It explains how diversifying the local tax base and creating sharper incentives for economic growth can build a more sustainable system of local government funding for all localities. (15 December 2015)

Non-Domestic Rating (Levy and Safety Net) (Amendment) (No. 2) Regulations 2015 (SI 2015/2039): these regulations, which come into force on 16 December 2015, amend SI 2013/737 to make changes to the operation and calculation of levy and safety net payments under the scheme for local retention of non-domestic rates. (15 December 2015)

Housing (Wales) Act 2014 (Commencement No. 5) Order 2015 (SI 2015/2046 (W.310) (C.127)): this order brings s.139 of the Housing (Wales) Act 2014 into force on 16 December 2015. Section 139 inserts new ss.12A and 12B into the LGFA 1992 giving billing authorities in Wales discretion to increase the council tax payable on long-term empty dwellings and second homes in relation to a financial year that begins on or after 1 April 2017. No account is to be taken of any period before 1 April 2016 when determining whether a dwelling is a long-term empty dwelling under s.12A(12). (15 December 2015)

Council Tax (Exceptions to Higher Amounts) (Wales) Regulations 2015 (SI 2015/2068 (W.311)): these regulations, which come into force in Wales on 31 January 2016, prescribe the classes of dwelling in relation to which a billing authority may not make a determination under s.12A and s.12B LGFA 1992 to apply a higher amount of council tax where there is no resident of a dwelling. (22 December 2015)

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

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Fire and Rescue Authorities

Fire and Rescue Services (National Framework) (Wales) (Revision) (No. 2) Order 2015 (SI 2015/1991 (W.301)): s.21 of the Fire and Rescue Services Act 2004 requires the Welsh Ministers to prepare a Fire and Rescue National Framework, which must set out priorities and objectives for fire and rescue authorities in Wales and which may provide guidance to fire and rescue authorities in connection with the discharge of any of their functions. Fire and rescue authorities must have regard to the framework in carrying out their functions. This Order, which comes into force in Wales on 1 January 2016, substitutes the Fire and Rescue National Framework for Wales 2016 for the Fire and Rescue National Framework for Wales 2012. It revokes the 2015 Order (SI 2015/1931 (W. 289)) and re-enacts its provisions in order to correct an error which was identified in the original Order. (9 December 2015)

Home Office: Fire and rescue policy to move to the Home Office: announces that ministerial responsibility for fire and rescue policy will be transferred from DCLG with immediate effect. The Home Office said that the response to recent flooding showed how well the police and fire service worked together to protect the public and help local communities. The changes are part of the Government's strategy to deliver greater joint working between the police and fire service. (5 January 2016)

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

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Fraud

London Councils: London boroughs launch counter-fraud hub: announces that the 32 London boroughs and the City of London are collaborating on the development of the London Counter Fraud Hub, which will analyse substantial amounts of data in order to identify instances of fraud committed against local government in the capital. It will also be able to investigate and recover funds on behalf of councils. The initiative is supported by London Ventures, a partnership between London Councils and EY which is part of the Capital Ambition programme. (11 December 2015)

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

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Health and Social Care

DH: Better Care Fund – Policy framework: sets out the agreed way in which the Better Care Fund will be implemented in financial year 2016/17. It covers such issues as: the legal and financial basis of the fund; conditions of access to the fund; national performance metrics; and the assurance and approval process. The document needs to be read alongside the NHS Mandate. (8 January 2016)

Welsh Government: ‘More than just words ...’ Follow-on strategic framework for Welsh language services in health, social services and social care: seeks views on a strategic framework to strengthen Welsh language services in health, social services and social care to improve the quality of services delivered to Welsh speakers. The consultation closes on 28 February 2016. (7 December 2015)

DH: Impact of insecure accommodation and the living environment on gypsies’ and travellers’ health: this report by the Traveller Movement looks at how the living conditions of gypsies and travellers lead to poor health. It finds that two-thirds of gypsies and travellers reported poor, bad, very bad or health, with their living conditions significantly contributing to their physical and mental health, and the poor health of gypsies and travellers is made worse by their living environment, accommodation insecurity and community discrimination. It concludes that there needs to be closer partnership working across health and other interests to address these issues. (8 January 2016)

Partnership Arrangements (Wales) Regulations 2015 (SI 2015/1989 (W.299)): these regulations, which come into force in Wales on 6 April 2016, set out the requirements for each Local Health Board and the local authorities within each Local Health Board's area to take part in partnership arrangements under ss.166-169 of the Social Services and Well-being (Wales) Act 2014 for the carrying out of specified health and social services functions. The regulations also provide for the operation and management of the partnership arrangements, the establishment of regional partnership boards and the establishment and maintenance of pooled funds. (2 December 2015)

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

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Highways

DfT: Local highways maintenance – Economic costs and benefits tool: this spreadsheet based model allows local highway authorities to assess the economic costs and benefits of proposed asset management strategies. It also allows them to compare different options. it was developed following the 2012 potholes review so that local highway authorities could evaluate and justify the need to invest in maintenance of the local highway network. (21 December 2015)

DfT: Highways maintenance funding – Incentive element, 2016 to 2017: updated documents on the Local Highways Maintenance Incentive Fund scheme that rewards councils who demonstrate they are delivering value for money in carrying out cost effective highways improvements. Each local highway authority in England (excluding London) is invited to complete a self-assessment questionnaire, in order to establish the share of the Incentive fund they will be eligible for in 2016/17. They must return the completed questionnaire to DfT by 31 January 2016, to receive funding for 2016 to 2017. (21 December 2015)

DfT: Working together to build a safer road system – British road safety statement: this policy paper outlines the Government’s approach to improving road safety. It includes:

supporting Highways England and local authorities in improving road safety standards;

reviewing the nation’s road safety management capacity, to identify opportunities for strengthening joint working, local innovation and efficiency;

supporting further devolution of road safety policy; and

working in partnership with public and private sector bodies and civil society organisations to save lives.

It will be followed by a series of consultations on specific road safety issues. The DfT will also undertake a road safety management capacity review, to identify areas for improved joint working, local innovation and efficiency. 
Alongside the paper, the DfT has published a summary of responsibilities for road safety policy and laws in the UK: Road safety powers and devolution. (21 December 2015)

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

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Housing

DCLG: New Homes Bonus – Sharpening the Incentive: Technical consultation: seeks views on a variety of options for increasing the focus of the New Homes Bonus on delivery of new homes and freeing up resources to be recycled within the local government settlement to support authorities with particular pressures, such as adult social care, following the outcome of the 2015 Spending Review. The options are:

withholding the Bonus from areas where an authority does not have a Local Plan in place;

abating the Bonus in circumstances where planning permission for a new development has only been granted on appeal; and

adjusting the Bonus to reflect estimates of deadweight.

The consultation also sets out proposals for reductions in the number of years for which the Bonus is paid from the current six years to four years. It considers mechanisms by which the changes could be calculated and provides exemplifications to show how the changes would work in practice alongside indications of the total cost.. The consultation closes on 10 March 2016. (17 December 2015) 

DCLG: Radical package of measures announced to tackle homelessness: announces a package of measures to help tackle homelessness and ensure there is a strong safety net in place for the most vulnerable people in society. These include:

maintaining and protecting homelessness prevention funding for local authorities, through the provisional local government finance settlement totalling £315m by 2019 to 2020;

£30m extra to councils to give them more control and flexibility over homelessness budgets by devolving the funding for managing temporary accommodation from 2017 to 2018;

a £5m fund to the 25 local authorities facing the greatest pressures in moving people out of temporary accommodation and into a settled home .

 (17 December 2015)

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

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Human Rights

R (Barda) v Mayor of London on behalf of the Greater London Authority [2015] EWHC 3584 (Admin) (Admin Ct): B challenged the GLA's decision to erect and maintain fencing on and around Parliament Square Garden on the grounds that it interfered unjustifiably with public demonstrations and his exercise of his rights under Arts.10 and 11 ECHR to freedom of expression and of assembly and association. The GLA had care and control of the Square under the GLA Act 1999 and had powers under the Parliament Square Gardens Byelaws 2012 and the Police Reform and Social Responsibility Act 2011 to control activities in the Square. Using these powers, at various times from October 2014 it erected fencing around the area as part of its strategy for dealing with planned protests by the Occupy protest movement. B argued that the fencing decision was unlawful because it was ultra vires the GLA's statutory powers of management of the Square, or alternatively was an improper exercise of those powers, and that there was no proper justification for the infringement of his right under Arts.10 and 11. The GLA claimed that they were entirely justified in their response to the threat they faced and they adopted a "measured approach" on each occasion when fencing was erected.
The court held, refusing the application, that the critical question was whether the interference was proportionate. The measured and graduated approach adopted by GLA to the threats of periodic occupation of the Square, which waxed as the threat to the Square increased and waned as it subsided, was the very definition of a proportionate response. (18 December 2015)

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

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Inshore Fisheries

MMO: Delegated Marine Enforcement Officer powers for Inshore Fisheries Conservation Officers: statutory guidance listing legislation enforceable by Inshore Fisheries and Conservation Officers (IFCOs) as limited Marine Enforcement Officers (MEOs) under s.235(1)(a) of the Marine and Coastal Access Act 2009. IFCOs are appointed by Inshore Fisheries and Conservation Authorities (IFCAs) and have powers to enforce byelaws, the remaining sections of the Sea Fish (Conservation) Act 1967 and the Sea Fisheries (Shellfish) Act 1967. Appointed officers have full MEO powers, but are restricted to enforcing the legislation specified within this schedule and can only exercise MEO enforcement powers within the jurisdiction specified in the counterparts to their warrant. (29 December 2015)

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

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Libraries

DCMS: Libraries as a statutory service: updated guidance on local authorities' duty under s.7 of the Public Libraries and Museums Act 1964 to provide a ‘comprehensive and efficient’ library service. It includes a section on "A sector perspective on creating a comprehensive library service" that discusses how local authorities might interpret "comprehensive and efficient" in light of previous judicial reviews. 
It accompanies the Libraries shaping the future: Good practice toolkit, produced by the Leadership for Libraries Taskforce, that sets out how library services can support delivery of a wide range of local and national government priorities. It also describes a range of approaches to delivering cost-effective library services. (16 December 2015)

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

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Maladministration

Cabinet Office: A public service ombudsman – Government response to consultation: in March 2015, the Government sought views on reforming the ombudsman sector in light of Robert Gordon's report to Government ‘Better to serve the public’ that recommended creating a new Public Service Ombudsman (PSO). This response sets out the main issues arising as well as the next steps. It states that the Government will now develop the details of the role, structure, governance, and accountability of the new PSO service. It will then publish draft legislation for further consideration before the end of the current Parliamentary session. (17 December 2015)

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

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Officers

HM Treasury: Public sector exit payment recovery regulations: seeks views on draft regulations that will give effect to the powers under the Small Business, Enterprise and Employment Act 2015, which allow for the recovery of exit payments when a high earner returns to the public sector shortly after exit. Since the last public consultation, the Government has modified some elements of the policy to ensure that the recovery provisions are fair and consistent. These changes include:

lowering the minimum earnings threshold for individuals subject to the recovery provisions from £100,000 to £80,000;

the recovery amount will be reduced over time for a return at any point up to 12 months from exit; and

recovery will include employer funded pension ‘top up’ payments made under the Local Government Pension Scheme to align with the recovery of other similar payments.

The consultation closes on 25 January 2016. The Government proposes to bring the policy in from April 2016. (20 December 2015)
See also DBIS's factsheet Public sector employment: restrictions on exit payments that outlines the measures that will be included in the Enterprise Bill.

Wandsworth LBC v Vining (Unfair Dismissal: Exclusions including worker/jurisdiction) [2015] UKEAT 0234_13_1812 (EAT): V and others were employed by the Council as Parks Police Constables. They brought claims against the Council  for protective awards for failure to comply with the requirements of s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of redundancies of Parks Police Constables. The Council argued that V was in service as a 'member of a constabulary maintained by virtue of an enactment' within the meaning of s.200(2) of the1996 Act and so was precluded from pursuing claims for unfair dismissal. The ET held that V was not precluded by s.200 from bringing claims of unfair dismissal, and that claims by UNISON for a declaration and protective awards were not precluded by s.280(2) of the 1992 Act.
The EAT held, allowing the Council's appeal, that the Court of Appeal in Redbridge LBC v Dhinsa and McKinnon [2014] ICR 834 had held that council-employed Parks Constables were in service as a ‘member of a constabulary maintained by virtue of an enactment’ within the meaning of s.200(2) and so were precluded from pursuing claims for unfair dismissal.  Here, it was not in issue that applying McKinnon and domestic law, by parity of reasoning trade unions representing such constables were precluded by s.280 of the 1992 Act from pursuing claims for a declaration and a protective award.  V's assertion that the Human Rights Act 1998 and the ECHR required the court to apply a different interpretation of s.200(2) enabling them to claim unfair dismissal was not well founded.  Their dismissals did not engage Art.8 ECHR, whether on its own or taken together with Art.14.  The claim by the trade union under s.189 prima facie engaged Art.11; however, in the absence of consideration of Art.11.2 it could not be decided whether the union’s Art.11 rights were infringed. Even if they were, s.280 could not be given the interpretation sought by V.  A declaration of incompatibility was not sought from the EAT nor could it be at this stage as the Secretary of State had not been given notice under CPR Rule 19.4A(1). (18 December 2015)

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

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Planning Procedures

Welsh Government: Proposed changes to Technical Advice Note 20 Planning and the Welsh language: s.11 of the Planning (Wales) Act 2015 requires every planning authority when preparing or revising the local development plan to consider how the policies and site allocations are likely to impact on use of the Welsh language in their area. Section 31 clarifies that the language may be considered in decisions where it is material to the application. This draft TAN 20 provides advice on considering the use of the Welsh language in development planning and in development management. The consultation closes on 30 March 2016. (4 January 2016)

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

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Police

HC Home Affairs Committee: Reform of the police funding formula: the Home Office has paused its review of the police funding process was paused after officials made serious errors in calculating the funding allocations for police force areas. These errors resulted in forces who had been advised they would be "winners" under the new funding allocation finding they are in fact facing cuts, and vice versa. This report calls for an independent panel of accounting firms, financial experts and the College of Policing to be appointed to assist the Home Office in formulating revised proposals. The Committee considers that the error at the Home Office sufficiently serious to name the official involved, and calls upon the Permanent Secretary to update it, by Christmas, on the outcome of the review into this incident and what disciplinary action will be taken where serious errors are found to have been made. (11 December 2015)

Home Office: Complaints about Police and Crime Commissioners: seeks views on proposals to change the Police Complaints Panel system for complaints made against a PCC, creating a more transparent and easily understood complaints system. These changes would relate to non-serious complaints (i.e. non-criminal), and may require amendments to the Police Reform and Social Responsibility Act 2011, and the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012. The consultation closes on 10 March 2016. 
The Home Office is also seeking views on proposals to reform the Independent Police Complaints Commission by making changes to its governance arrangements and corporate structure. The closing date for this consultation is 28 January 2016. (17 December 2015)

Home Office: Provisional Police Grant report (England and Wales) 2016/17: sets out the aggregate amount of grants proposed for the police in England and Wales for 2016 to 2017 and includes the proposed amount of grant for each local policing body. A consultation on the provisional police settlement is open until 25 January 2016. (17 December 2015)

Police and Crime Commissioner Elections (Designation of Local Authorities) Order 2015 (SI 2015/2028): this Order, which comes into force on 5 May 2016, designates for the purposes of s.75(1) of the Police Reform and Social Responsibility Act 2011 a local authority for the police areas in England listed in Sch.1 and the police areas in Wales listed in Sch.2. The Head of Paid Service of a designated local authority is the "appropriate officer" for the purposes of Chapter 6 of Part 1 of the Act (elections and vacancies of PCCs). (14 December 2015)

R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 (CA): the issue in this case was whether, once the relevant police authority had agreed to take no action against a police officer in a specific matter as recommended by an IPCC investigation, the IPCC was functus officio so as to be unable to review or re-open its investigation. The Metropolitan Police Commissioner (MPC) had appealed against the court's decision that the IPCC was entitled to re-open an investigation into an allegation that a police officer had tried to strangle an arrested man. The MPC contended that the court ought to have held that the IPCC had no power to re-open its decision not to recommend or direct disciplinary action, because it was functus officio.
The court held, dismissing the MPC's appeal, that s.10(1) of the Police Reform Act 2002 defined the IPCC's functions as to secure that it maintained and the police maintained suitable, efficient and effective arrangements, to keep those arrangements under review, and to secure that public confidence was established and maintained in relation to those arrangements. The definition of "functus officio" was that "a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it". Before one came to consider whether there was a power to revoke or modify the function, the actor must have performed it. Here, the IPCC could not properly be regarded as functus officio at a time when it was continuing the functions to the complaints. The complaints had not been finally resolved when the Commissioner made her decision. The court noted that any decision to re-open an investigation would be subject to the supervisory jurisdiction of the court, and that in practical terms there would need to be a compelling reason to re-open. (10 December 2015)

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

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Procurement

Counted4 Community Interest Co v Sunderland City Council [2015] EWHC 3898 (TCC): C4 was the current provider of the clinical aspect of substance misuse services to the Council under an existing contract. It bid for the Council's procurement of substance misuse treatment and harm reduction services but the contract was awarded to the previous contract holder, an NHS trust. C4 brought proceedings challenging the award; it contended that the procurement process was unlawful, in breach of EU regulations and that there was an implied tender contract. The Council applied for the automatic suspension of the award under reg.96(1) of the Public Contracts Regulations 2015 to be lifted.
The court held, refusing the application, that in considering whether to lift the suspension under reg.96, the test was whether there was a serious issue to be tried, and whether damages would be an inadequate remedy. Here, there was a serious issue to be tried in relation to the potential conflict of interest; also, C4's claim of errors and unfairness in the scoring process was not hopeless, frivolous or vexatious. While C4's claim to damages was readily calculable, if the suspension were to be lifted then the workforce would be lost and it would take years to develop skills that were not available in the wider market. The court had sympathy with C4's position: although there was no evidence that the local authority would suffer any loss, and C4 was a not-for-profit organisation, giving a cross-undertaking was standard, if not commonplace. There was a public interest in the local authority complying with EU legislation. The current service did not create such a risk to the users of the service that the public interest outweighed the prejudice to C4 if the suspension were lifted. From a public interest viewpoint, a further delay of two to three months in the lead up to trial could not sensibly be said to be critical and the risk of staff leaving was not great. Considering all of the factors together, on the balance of convenience, the automatic suspension should not be lifted, but it should rather continue until trial on the terms of the limited undertaking C4 had offered. (18 December 2015)

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

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Public Health

Welsh Government: Consultation on the Draft Public Health Outcomes Framework for Wales: seeks views on a draft Public Health Outcomes Framework for Wales that has been developed in the context of other strategies and frameworks that also seek to improve the health of the people of Wales. In particular, it links to the national indicators for the Wellbeing of Future Generations (Wales) Act 2015, which are also currently undergoing consultation and development. The consultation closes on 28 January 2016. (3 December 2015)

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

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Regulatory Services

LGA: Open for business – LGA guidance on locally set fees: this guidance aims to help councils understand the full breadth of issues that should be considered when setting local licence fees in order to meet legal obligations and provide the necessary reassurances to local businesses. It includes consideration of the impact of the EU Services Directive 2006/123 on locally set licence fees. The guidance has been updated to reflect key legal decisions in R (Hemming (t/a Simply Pleasure Ltd)) v Westminster City Council [2015] UKSC 25  and Cummings v Cardiff City & County Council (Unreported, 28 July 2014). (15 December 2015)

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

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Traffic and Transport

DfT: Setting the first cycling and walking investment strategy: outlines the timetable and approach for developing the first Cycling and Walking Strategy (CWIS) in 2016. The CWIS will set out a long-term vision for walking and cycling to 2040, founded on a desire for walking and cycling to become the norm for short journey or as part of a longer journey. This vision will be progressed through a series of shorter term, 5 year strategies. There are a number of objectives that will support the long-term ambition, with specific funded actions to be set out on achieving these objectives. (17 December 2015)

DfT: Hundreds of cleaner buses for England’s towns and city centres: announces the award of £7m funding under the Clean Bus Technology Fund 2015 to 18 local authorities to retrofit buses with technology to reduce NOx emissions in pollution hotspots. (3 January 2016) 

Isle of Wight Council v HM Revenue & Customs [2015] EWCA Civ 1303 (CA): this case concerned claims made to HMRC by the Council and other local authorities under s.80 VAT Act 1994 for repayment of the VAT included in charges made by them to members of the public for off-street car parking (OSCP). The issue was whether the Council was entitled to be treated as a non-taxable person in respect of its supplies of OSCP – 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 local authorities appealed against the Upper Tribunal's decision 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 OSCP would distort the provision of outsourcing.
The court held, dismissing the appeal, that the critical issue was whether the FTT had made an error of law in the light of its legitimate findings of fact. It was impossible to say that the FTT's findings were plainly wrong or outside the bounds within which reasonable disagreement was possible. There was nothing wrong with the FTT's conclusion that local authorities must be permitted to set OSCP charges with a view at least to covering the cost of operating loss-making or free of charge car parks. When local authorities fixed OSCP charges so as to give effect to the various traffic management, planning, economic and environmental policies properly to be taken into account in the provision of OSCP under s.32 and s.122 RTRA 1984, it was entirely lawful and correct of them to have regard to the overall constraints of meeting the cost of providing OSCP (save that they could charge more than cost for some specific relevant policy objective). The authorities had not contended that, if the FTT was entitled to reach its conclusion on pricing, it was not also entitled to conclude that the non-taxation would lead to significant distortion of competition within Art.4.5(2). It was plain that if one supplier in the market for OSCP was able to have lower prices over time because of its special tax status that was likely significantly to distort competition. (16 December 2015)

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

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Welfare and Benefits

DWP: Evaluation of removal of the Spare Room Subsidy – Final report: this report looks at how local authorities and social landlords prepared for and implemented the new rules on Housing Benefit for working-age people living in social housing. It also assesses the effects of the new rules on, and responses to them of: Housing Benefit claimants; social landlords; local authorities; voluntary and statutory organisations and advice services; and funders lending to social landlords. (17 December 2015)

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