Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More25/04/2016
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 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
Health and Care Professions Council: Consultation on revised standards of proficiency for social workers in England: seeks views on proposed changes to the standards of proficiency for social workers in England. These describe what professionals must know, understand and be able to do at the time they apply to join the HCPC Register. The consultation closes on 24 June 2016. (4 April 2016)
R (Bhandari) v Croydon LBC (Unreported, Admin Ct): B & C applied for judicial review of the decision of the Council's independent appeal panel that C was liable to refund it the full cost of residential care that had been provided to her between 2014 and 2015. The Council had decided that C had assets in excess of the statutory minimum threshold of £23,250 so that she should meet the full accommodation costs. In particular, it relied on B's and C's interests in four properties. B and C appealed against that decision to the panel, and relied on a solicitor's letter which referred to each of the properties and calculated the claimants' interests in them. The panel rejected the representations, concluding simply that it had studied the information provided but that its decision remained the same. It provided no further reasons.
The court held, granting the application, that the relevant statutory guidance "Charging for Residential Accommodation Guide" provided that a local authority had to give a clear explanation of how it had assessed an individual's ability to pay accommodation costs. Sufficient explanation had to be given so that the person affected by the decision knew where they stood and whether they had any grounds to challenge the decision on the basis of legality, procedural unfairness or factual error. Here, the Council had been required to give some response explaining why it was dissatisfied with the information provided in the solicitor's letter. Accordingly, it was appropriate to make a declaration that there had been no lawful final decision on the claim because insufficient reasons had been given. (21 April 2016)
The judgment is available on Lawtel (subscription required).
Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (SI 2016/413 (W.131)): Parts 2 to 6 of the 2014 Act make provision about improving the well-being outcomes for people in Wales who need care and support and carers who need support. These regulations, which mainly come into force on 6 April 2016, amend primary legislation which relates to the provision of care and support for adults and carers in relation to Wales. The amendments made in these regulations will mean that the current community care legislation is repealed in relation to Wales. (19 March 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Children's Services
LGA: Action research into improvement in local children's services: the LGA commissioned Isos Partnership to look at how local children's services can best be supported to improve rapidly and in a sustained way. This interim report aims to provide a rich evidence base on the challenges and opportunities being faced by local authorities in adapting to the current challenging context, combined with practical examples and case studies of good and innovative emerging practice. It identifies seven key enablers of children's services improvement. It is hoped that these will be of direct value both to policy makers in central government and local authorities themselves. The next stage of the research will use an action learning approach to model and test different approaches to improvement. (3 March 2016)
DfE: Practice and improvement fund – Adoption services: this guide sets out an explanation of the practice and improvement fund for adoption services. Up to £14m will be available for the programme in 2016-17 and 2017-18. The fund aims to inspire the transformation of adoption services and those services that adopted children and families rely on at a regional and national level. The first application round is for voluntary adoption agencies and other voluntary sector organisations. The closing date for bids is 3 June 2016. (20 April 2016)
Re C (Children) [2016] EWCA Civ 374 (CA): this case considered the extent to which a local authority could or should exercise its shared responsibility in order to determine the name that a child in their care should be given. The local authority applied to the court to invoke its inherent jurisdiction under s.100 Children Act 1989 to prevent M, a mother, from registering her twin children with the forenames of her choice, namely "Preacher" and "Cyanide".
The court held, granting the application, that the naming of a child was not merely a right or privilege, but also a responsibility. Although the local authority might have the statutory power under s.33(3)(b) to prevent M from calling the twins "Preacher" and "Cyanide", there was a small category of cases where, notwithstanding the local authority's powers under s.33(3)(b), the consequences of the exercise of a particular act of parental responsibility were so profound and had such an impact on either the child his or herself, and/or the Art.8 rights of those other parties who shared parental responsibility with a local authority, that the matter must come before the court for its consideration and determination. There might be rare cases where a local authority believed that the forename chosen by a parent, and by which he or she intended to register a child, went beyond the unusual, bizarre, extreme or plain foolish, and instead gave the local authority reasonable cause to believe that by calling the child that name, they were likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority sought to ensure that the course it proposed was necessary and in the child's interests, was by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction. (14 April 2016)
W (A Child: Designation of Local Authority) [2016] EWCA Civ 366 (CA): Medway Council appealed against the judge's decision designating it as the responsible local authority for W, an 8 months old baby girl. Prior to W's birth, her mother had spent time living in Dorset and Kent. W was born in Portsmouth and then went with her mother to the home of the maternal great grandmother in Medway. On her discharge from hospital after the birth, the mother entered in to a 'working together agreement' with Kent CC. The agreement between Kent CC, the mother, the maternal grandfather and the maternal great grandmother stated that the named members of the extended family were to be responsible for the supervision of the care of W and it specified that W was to live at the home of the maternal great grandmother in Medway until Kent CC found a 'suitable placement'. Kent CC issued care proceedings and obtained an interim care order. When W was less than two weeks old, Kent CC provided a mother and baby placement in East Sussex. Medway submitted that the working together agreement amounted to accommodation provided for or on behalf of Kent CC so that under s.105(6) of the Children Act 1989, the period of the placement with the mother's family in Medway had to be disregarded when determining "ordinary residence". Kent CC argued that the working together agreement was a voluntary child protection agreement reached until a more suitable placement could be identified. Both Kent CC and Dorset CC contended that the background circumstances were such that it was clear that neither the mother nor W were ordinarily resident in either of their authorities.
The court held, dismissing the appeal, that the test for ordinary residence was one of fact and should not be made into an overly complicated exercise. The judge's decision was not perverse. The plain language of the working together agreement presented a formidable obstacle to the submission that W was accommodated or placed by Kent CC with the extended family in Medway. The agreement was no more than an unenforceable child protection arrangement, albeit failure to abide by it would have led to the removal of W. The document was not phrased as a s.20 accommodation agreement or a plan to accommodate or place W as a looked after child. This document on its own was not sufficient to infer that the arrangement in Medway should be disregarded as 'accommodation provided by or on behalf of the local authority' in accordance with s.105(6). If W was not accommodated or placed by Kent CC with the extended family in Medway the disregard did not apply and as between Kent and Medway, W lived for the whole of the relevant period in Medway with her primary carer. At no material time did she or her mother live in Kent, whatever may have been agreed in the safe discharge plan or whatever might have been expected or intended after her mother left Dorset. The judge found as a fact that W had never lived in Kent or Dorset and that could not seriously be contradicted. (19 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Devolution
NAO: English devolution deals: this report finds that there are significant accountability implications arising from the devolution deals which central government and local areas will need to develop and clarify, such as the details of how and when powers will be transferred to mayors and how they will be balanced against national parliamentary accountability. The deals agreed so far involve increasingly complex administrative and governance configurations. And as devolution deals are new and experimental, good management and accountability both depend on appropriate and proportionate measures to understand their impact. It recommends that to improve the chances of success, and provide local areas and the public with greater clarity over the progression of devolution deals, central government should clarify the core purposes of devolution deals as well as who will be responsible and accountable for devolved services and functions, and should ensure it identifies and takes account of risks to devolution deals that arise from ongoing challenges to the financial sustainability of local public services. (20 April 2016)
DCLG: Single Pot assurance framework – National guidance: guidance for local authorities writing local assurance frameworks where a Single Pot has been agreed as part of a Devolution Deal with government. The Government is asking places in receipt of Single Pot funding to write a local Single Pot assurance framework, which DCLG will sign off before 2016-17 funding allocations of investment funds, and 2017-18 onward allocations of other funding streams, are paid. The assurance framework explains how they will appraise, monitor and evaluate schemes to achieve value for money. This document sets out HM Government’s guidance for localities writing local Single Pot assurance frameworks. (13 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Economic Development
DCLG: Regeneration of stations set to deliver thousands of new properties and jobs: announces an agreement between Network Rail and the HCA that will see them working with local councils to trailblaze development opportunities across England’s railway stations for housing and businesses. The ambitious initiative could deliver up to 10,000 new properties on sites around stations in the coming years. Government wants to hear from at least 20 local authorities to take the scheme forward. York, Taunton & Swindon have already submitted their station regeneration proposals. The HCA and Network Rail will now work with councils on the opportunities they see and any plans already in place to explore how Government can support them to deliver locally-led regeneration and development schemes quickly. (10 April 2016)
IPPR: London – Green global city: this report looks at the formidable environmental challenges which the new Mayor of London will face, such as air pollution, traffic congestion, greenhouse gas emissions, fuel poverty, loss of green space and poor recycling levels. The report sets out a plan for the new Mayor to address these challenges. It calls on the Mayor to commit to making London a ‘global green city’, in which environmental goals are prioritised as central to the city’s vision of economic and social development. (6 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Education
DfE: 10 facts you need to know about academies: sets out information intended to dispel some common myths and misconceptions about the Academies programme. (13 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Elections
Police and Crime Commissioner Elections (Local Returning Officers’ and Police Area Returning Officers’ Charges) Order 2016 (SI 2016/514): s.55 of the Police Reform and Social Responsibility Act 2011 provides that a returning officer may recover charges in respect of services rendered, or expenses incurred, by the officer for or in connection with an election if the services were necessarily rendered, or the expenses necessarily incurred, for the efficient and effective conduct of a Police and Crime Commissioner (PCC) election. This Order, which comes into force on 13 April 2016, specifies the overall maximum amount and the maximum amounts for specified services and specified expenses that may be recovered by a local returning officer and by a police area returning officer at a PCC election. (12 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Environmental Protection
Natural Resources Wales: The state of contaminated land in Wales: this is the first ‘Wales only’ report on progress under the contaminated land regime in Part 2A of the Environmental Protection Act 1990. The report presents key facts and figures gathered from Natural Resources Wales and local authorities across Wales on statutory duties carried out under the regime since its introduction in Wales on 1 July 2001 until 31 December 2013. The findings include that all Welsh local authorities have produced and published their inspection strategy for contaminated land, and the majority of the local authorities have not changed their priorities within their inspection strategy since it was first drafted. By end of December 2013, 47% of the local authorities reported that they are behind target towards achieving the objectives of their inspection strategy. By the end of December 2013, 175 sites had been determined under Part 2A, including two designated special sites. 95 sites have been fully remediated by the local authorities at an estimated cost of £3.7m and two further special sites have been fully remediated at a cost of around £1.2m. Site remediation has been mainly paid for by the Welsh Government’s Contaminated Land Capital Fund Scheme prior to its withdrawal in 2010/11 and also via Class A appropriate persons. (April 2016)
If you wish to discuss any of the items noted in this section please contact Nadeem Arshad.
Governance
SOLACE: Guidance note for council officers on statutory rules regulating publicity produced by councils and other areas of council’s operations that may be affected by the European Union referendum: advice and guidance on the statutory rules regulating publicity produced at any time by the Council or by other persons with the Council’s assistance; the tighter rules on council publicity produced by the Council in the run up to polling day for the EU referendum; and the areas of the Council’s operations which are affected by the referendum process. It covers: publicity produced or facilitated by the Council; assistance to campaigners at the referendum poll; use of council premises; visits to council premises by elected representatives and campaigners; promoting political literacy in schools in connection with the referendum; politically restricted posts; and time off work for council employees. (11 April 2016)
DCLG: Letter to Tower Hamlets council in response to their second best value action plan progress report: following receipt of the Council’s second 6 monthly progress report against its best value action plan and evidence of progress made to date, the Secretary of State has written to Tower Hamlets Mayor John Biggs. The letter sets out the Secretary of State’s response to the Council’s second progress report and outlines his expectations for further progress over the coming months. He finds that the Mayor is making progress but there must be sufficient evidence of real organisational change before he will consider handing any powers back. (11 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Social Care
NHS England: A practical guide to healthy caring: the Care Act 2014 introduced new duties on local authorities to provide information and support to carers. This guide provides information and advice to carers about staying healthy whilst caring and identifies the support available to help carers maintain their health and wellbeing. While it is aimed at carers of any age, it is particularly relevant for carers aged around 65 years and those new to caring. (12 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Highways
DfT: Reducing roadwork disruption on local ‘A’ roads: seeks views on proposals to change the way that roadworks are carried out on the key local 'A' roads which make up about 10% of the roads that local authorities are responsible for. The plans are that roadworks remain attended during weekends and that temporary traffic lights are removed promptly. The consultation closes on 27 May 2016. (12 April 2016)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Housing
R (H) v Ealing LBC [2016] EWHC 841 (Admin) (Admin Ct): H and others applied for judicial review of the council's decision to significantly amend its housing allocations policy by introducing a scheme whereby 20% of all available lettings would be removed from the general pool and would be reserved for "Working Households" and "Model Tenants". The changes aimed to incentivise tenants to work or return to work and to encourage good tenant behaviour. H were two families who had protected characteristics of disability, age and gender under the Equality Act 2010. They contended that the scheme was discriminatory and breached Art.14 ECHR; also, that the Council was in breach of its Public Sector Equality Duty under s.149 of the 2010 Act and its obligations in respect of the welfare of children imposed by s.11 of the Children Act 2004.
The court held, granting the application, that the scheme indirectly discriminated against the protected groups of the disabled, the elderly and women. There was also disparate treatment of non-Council tenants because they could not be model tenants by definition. The Council had not justified the scheme – it had a legitimate aim in encouraging tenants to work and to be well-behaved in relation to their tenancy and the scheme was obviously a rational means of achieving that aim; however, it was not the least intrusive way of doing so. It could not be said that as against the aim of encouraging tenants to work and incentivising good tenant behaviour, the scheme was the least intrusive method without unacceptable results or that a fair balance had been achieved. The council was also in breach of its duties under the 2010 Act and the 2004 Act. (18 April 2016)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Marine Planning
MMO: Marine planning – A guide for local councils: marine planning is a statutory requirement under the Marine and Coastal Access Act 2009. Marine plans address the key issues for the area, setting a vision and objectives. Detailed policies set out how these will be achieved and how issues will be managed or mitigated. The policies inform decision-making for any activity or development which is in or impacts on a marine area. This guide provides an overview of marine plans and the marine planning system. It includes information on how marine planning and land-use planning support each other, how the two systems integrate and how the marine plans should be used. (11 April 2016)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
National Parks
R (Harris) v Broads Authority [2016] EWHC 799 (Admin) (Admin Ct): the issue in this case was whether the Authority, which in law was not a National Park, could represent itself (and allow itself to be represented) as a National Park and thereby to enjoy the benefits of National Park status despite the fact that the Authority had decided to cease to seek to become a National Park because it did not wish to be subject to the legal duties imposed on National Parks and National Park Authorities.
The Authority was constituted under the Norfolk and Suffolk Broads Act 1988 and was also the local planning authority for the area and a harbour and navigation authority. However, it was not a National Park designated under the National Parks and Access to the Countryside Act 1949, nor was it a National Park Authority under that statute; however, for many years it had been treated as forming part of the "family" of National Parks. H, who were residents in the Authority's area, applied for judicial review of the Authority's decision that the Authority's area be rebranded as the "Broads National Park" for marketing-related purposes. It was agreed that the Authority had not sought to re-brand itself, or to describe itself as a National Park Authority. H contended that: the decision was ultra vires as it was outside the scope of s.111 LGA 1972,as that section did not give the Authority power to make a decision incompatible with the statutory code imposed by the 1949 Act; and it was misleading as use of the phrase "Broads National Park" in promotional literature would mislead a reasonable member of the public into thinking that the Sandford Principle, which required National Parks to give conservation priority over promotion of public enjoyment, was applicable within the Broads.
The court held, dismissing the application, that branding decision taken by the Authority could not be regarded as having any misleading effect as to the statutory functions of either the Broads or the Authority and no abuse of power had occurred. In the context of branding or marketing, the term "National Park" used ordinary language, and not a statutory concept, to evoke the nationally important qualities of the area and stimulate public enjoyment of, and potentially visits to, that area. No reasonable member of the public would see the use of the words "Broads National Park" in promotional literature as referring to the specific legal regimes governing either the Broads or National Parks in the UK. The Authority's resolution was essentially concerned with a decision on branding which did not depend upon whether the Sandford Principle should be adopted, whether now or in the future. Any debate about whether that principle should be adopted in the longer term would be a matter for the review of the Broads Plan. (12 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Officers
Collins & Pitblado v Thanet DC & Kent CC (Unreported, QBD): C and P brought a claim for misfeasance in public office against the two Councils. The claim arose after the councils refused to grant C & P planning permission to build a house just outside a village. Planning permission was ultimately granted on appeal but C & P were refused their costs of bringing the appeal as the court found that the councils had not behaved unreasonably. C & P argued that Thanet DC had convinced Kent CC to change its mind, that the councils had pretended that the proposed development was not sustainable development in bad faith, and that their findings had been contrary to common law principle of fairness and outside the scope of their powers.
The court held, dismissing the claim, that to prove misfeasance in public office, the claimants had to show bad faith in the sense of the exercise of public power for an improper or ulterior motive, or bad faith inasmuch as the public officer did not have an honest belief that his act was lawful. The allegations against the councils were wholly unsustainable. The statutory framework had made it clear that before granting planning permission, a local authority should consult other planning authorities, and was entitled to take into account representations from consultees. The councils' planning officers had felt that the development was not sustainable; that had been a mistake, but it was not a straightforward case. There had been no evidence of dishonesty. There had been no improper or ulterior motive - the officers had believed their actions were lawful and had behaved perfectly reasonably. Costs on the indemnity basis would be ordered as C & P had made wide-ranging allegations of dishonesty, which they had maintained until the bitter end without evidence. (19 April 2016)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Procurement
Welsh Government: Consultation on Procurement Regulation in Wales: seeks views and opinions regarding plans for the introduction of legislation on public procurement activity undertaken by the Welsh Public Sector. The consultation closes on 28 June 2016. (5 April 2016)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
DH: Healthy Lives, Healthy People – A review of the 2013 public health workforce strategy: details progress made with the Strategy, which sets out actions for various partners in the new public health system to support and develop the public health workforce. The Strategy aims to help embed public health capacity within the wider workforce to support delivery of the Public Health Outcomes Framework. (April 2016)
Faculty of Public Health: Good public health practice framework 2016: this revised non-statutory guidance provides the basis for good professional practice in public health. It applies to all members of the core public health workforce, including public health practitioners and specialists and those training to become practitioners and specialists. (8 April 2016)
LGA: Tackling poor oral health in children – Local government's public health role: commissioning responsibilities of the Healthy Child Programme for 0-5 year olds were transferred to local government in October 2015. This included the commissioning of Health Visitors who lead and support delivery of preventive programmes for infants and children including providing advice on oral health and on breastfeeding and reducing the risk of tooth decay. This updated publication looks at local authorities' role and includes a number of case studies. (15 April 2016)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Regulatory Services
DCLG: Better Business Compliance Partnerships – Programme evaluation: the Better Business Compliance Partnership programme was designed to make joint working between national and local agencies more systematic, to strengthen the response to hidden and illicit economic activity and improve how agencies support businesses to comply with regulatory and other statutory regimes. It comprised five local authority-led partnerships in Cheshire West and Chester, Cornwall, Ealing, Hertfordshire and Manchester and Salford. The local areas developed different approaches based on local needs but across each one, this evaluation found that joint working helped target resources more effectively to crackdown on businesses breaking the law. (12 April 2016)
LGL: Council wins judicial review over advice given to Greggs under Primary Authority: Local Government Lawyer reports that the High Court has upheld Hull City Council’s judicial review claim over advice given by Newcastle City Council to Greggs under the ‘Primary Authority’ scheme. It followed from the BRDO's first ever primary authority decision, that advice given to Greggs by Newcastle City Council pursuant to a primary authority partnership arrangement was correct. That advice had prevented Hull City Council officers from enforcing s.20 of the Local Government (Miscellaneous Provisions) Act 1976 so as to require two of Gregg’s establishments to provide toilets. The key question was the correct interpretation of s.20 and in particular the definition of ‘relevant place’ in s.20(9).
Kerr J held, quashing the BRDO's decision, that Newcastle City Council had misinterpreted the law and had therefore given incorrect advice which had been wrongly endorsed by the BRDO. He awarded Hull City Council’s legal costs to be paid. He also gave leave to appeal to the CA. (12 April 2016)
East Lindsey DC v Hanif (t/a Zaraf Restaurant & Takeaway) (Unreported, Admin Ct): the police applied for H's licence to be revoked, after an inspection revealed that H was employing an illegal worker whom he was paying cash in hand at less than the minimum wage; in addition, he did not keep PAYE records, he purported to deduct tax from the chef's salary and did not account to HMRC for the tax deducted. The district judge allowed H's appeal against the licensing committee's revocation, holding that the crime prevention objective had not been engaged because no crime had been committed. The Council appealed, arguing that the district judge had wrongly held that the crime prevention objective had not been engaged. The council contended that the duty of the licensing authority was prospective: it concerned the prevention of crime and disorder, not merely the reaction to it. In any event, crimes had been committed, namely failing to pay the minimum wage, tax evasion and employing an illegal worker.
The court held, allowing the council's appeal, that district judge had applied the law erroneously. A prosecution or criminal conviction was not required for the licensing authority's crime prevention objective to be engaged. Each case turned on its own facts, but in this case crimes had been committed in any event. The licence should have been revoked. (14 April 2016)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Traffic and Transport
RAC: Motorists support residents’ parking schemes, despite realising they just shift the problem elsewhere: summarises the results of research on residents' parking schemes. It found that there was very little opposition to residents’ parking zones (RPZs) with only 17% of those questioned saying they were opposed to them; however, there was a stronger feeling that RPZs discourage people from visiting an area for shopping and leisure purposes and that they make it difficult for commuters to park for work. The research also revealed a very common misapprehension around how local authorities use the money collected from the issuing of residents’ parking permits, with 77% of respondents wrongly believing that the fees are simply another form of general local taxation and that little of the revenue is reinvested in road maintenance and development. (13 April 2016)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
