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Read More27/03/2017
This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.
If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.
All links are correct at the date of publication. The following topics are covered in this update:
Access to Information
ICO: Information governance survey – What councils need to do now: highlights the key findings from the ICO’s Good Practice department survey, conducted at the end of 2016, to find out more about information governance practices in local government. The overarching conclusion was that, although there is good practice out there, with the new General Data Protection Regulation (GDPR) coming into force from May 2018, many councils have work to do. Adhering to good practice measures under the Data Protection Act will stand organisations in good stead for the new regulations. This blog directs councils to some of the key areas they need to consider in their GDPR preparations. (20 March 2017)
ICO: Council fined for leaving sensitive files in cabinet sent to second hand shop: reports that the ICO has issued Norfolk CC with a £60,000 monetary penalty notice after social work case files were discovered in a cabinet purchased by a member of the public from a second hand shop. The case files included information relating to seven children. (20 March 2017)
Brighton and Hove City Council v Information Commissioner (Allowed: Freedom of Information Act 2000) [2017] UKFTT 2016_0119 (GRC): the First Tier Tribunal has upheld the Council's refusal to disclose a consultants' review of the Brighton i360 tower development. The Tribunal acknowledged the significant public interest in full disclosure and unqualified transparency in relation to this important development. However, this was clearly outweighed by the interests in preserving confidence, in treating competing concerns equally and fairly and, most importantly, in protecting the company from grave financial disadvantage through disclosure of critical information to its rivals and protecting the integrity of the large loan from public funds. (14 March 2017)
Murphy v IC (Dismissed: Freedom of Information Act 2000) [2017] UKFTT 2016_0247 (GRC): the Tribunal upheld the ICO's decision that the complainant's FOI request was vexatious under s.14 FOIA 2000. Responding to a series of multipart requests for information, providing documents and answering questions was a burden and involved a shift of the Council’s resources from other tasks which might be more productive. It was a significant step to conclude that a request was vexatious and a high objective standard, namely: was it reasonable to conclude that the information sought would be of no value to the requester, or the public or a section of the public? The function of the FOIA was to provide access to information held by public authorities; this was very different from being used to allow individuals to continue to vent dissatisfaction over issues which had already been dealt with. The request was an abuse of the statutory right which was for information and not a right to keep the dying embers of an employment dispute lingering pointlessly. (20 March 2017)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
Law Commission: Mental capacity and deprivation of liberty: the Law Commission has published its final report following its review of the Mental Capacity Act and the Deprivation of Liberty Safeguards (DoLS). The review found that the law is still failing to deliver Article 5 safeguards to many people who lack capacity to consent to their care or treatment and are being deprived of their liberty. The official figures show a significant backlog of cases referred for authorisation under the DoLS, with the legal timescales for DoLS assessments being routinely breached and a significant number of cases not being assessed at all. It also received evidence of significant delays in reviews and renewals of DoLS authorisations, and that many NHS bodies and local authorities were not even considering deprivation of liberty cases outside hospital and care home settings or involving 16 and 17 year olds. The final report, with a draft Mental Capacity (Amendment) Bill, recommends that the DoLS be repealed with pressing urgency and sets out a replacement scheme for the DoLS – called the Liberty Protection Safeguards. In addition the draft Bill makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty. (13 March 2017)
NAO: Local support for people with a learning disability: this report looks at progress with the DH and NHS England's Transforming Care programme that aimed to move people out of mental health hospitals more quickly. The NAO finds that good progress has been made by the DH and NHS England in setting up a programme to close hospital beds for people with a learning disability, but the programme is not yet on track to achieve value for money. (3 March 2017)
DH: Annual report by the Chief Social Worker for Adults 2016-17 – Being the bridge: this report sets out progress made to improve the quality of education, training and practice of social work with adults in the last year. It highlights the main priorities and issues for the adult social work profession. The report also features case studies from local authorities across the country, including examples of rights and strengths-based approaches, social work in mental health, workforce development and integration. (21 March 2017)
House of Commons Library: Adult social care funding (England): this briefing paper examines the key funding pressures facing adult social care services in England and evidence of the impacts of these pressures on social care and health services. It explains the additional funding for adult social care that the Government has made available in this Parliament, and discusses stakeholder concerns about a growing social care 'funding gap' and the need for a long-term sustainable funding solution. (8 March 2017)
DH: Social work – Essential to integration: this document explains the critical contribution that social workers make to integrated services, how social work is essential to the whole system and the necessity of support to ensure integration succeeds in providing the services people need. It also includes ‘top tips’ for directors of adult social services and for principal social workers to assist in progressing the integration agenda. It has been produced to support and inform local and regional health and social care integration initiatives. (14 March 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Asset Management
Cabinet Office: Guide for the disposal of surplus land: this guide is aimed at the whole disposals team (estates professionals and policy teams) in Government Departments, and their arm's length bodies. It sets out the principles and technical processes for the disposal of surplus land and buildings and the current and developing policy context. It supplements the guidance provided in HM Treasury Managing Public Money. It includes a section on Part 8 of the Housing and Planning Act 2016 and the need for engagement with local authorities on property disposals. (15 March 2017)
If you wish to discuss any of the items noted in this section please contact Steven Smith.
Business Rates
Non-Domestic Rating (Designated Areas etc) Regulations 2017 (SI 2017/318): these regulations, which come into force on 31 March, 1 April and 1 September 2017, form part of the scheme for local retention of non-domestic rates (“the rates retention scheme”). They designate areas in relation to which a proportion of the non-domestic rating income raised is to be retained in its entirety by the local authority in all or part of whose area a designated area falls. They provide rules for calculating in respect of a billing authority in England all or part of whose area falls within a designated area, the billing authority’s non-domestic rating income in respect of the designated area for a specified year; and the proportion of that non-domestic rating income that is to be disregarded for the purpose of specified calculations under Sch.7B LGFA 1988. They also amend the Rates Retention Regulations 2013 (SI 2013/452) to provide that the authority is compensated for the cost of any discretionary relief it gives to business ratepayers in the designated areas which fall within a “red area” as defined in Sch.2 to those regulations. (9 March 2017)
Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017 (SI 2017/155): these regulations, which come into force on 1 April 2017, amend SI 2009/2268 to provide for the introduction of a new system for resolving disagreements which is to have effect in relation to non-domestic rating lists compiled on or after 1 April 2017.
See also the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) (Amendment) Regulations 2017 (SI 2017/156), which amend the 2009 Procedure Regulations (SI 2009/2269) regarding the new appeals system for business rates. (17 March 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Children's Services
All Party Parliamentary Group for Children: No good options – Report of the inquiry into children's social care in England: the APPG's inquiry brought together evidence about the current resourcing of children’s social services and changes in the nature and level of demand, to improve understanding of the challenges facing under-performing children’s services, and how to address them. This report identifies key areas in which improvement is essential if children’s services are to reach all children and young people in need of support. (17 March 2017)
NCB: Legal guide on short breaks for disabled children: this guide has been developed by barrister Steve Broach on behalf of the Council for Disabled Children (CDC) to help local authority officers to understand the law in relation to short breaks and to apply it effectively. The guide also covers the duties on NHS bodies in relation to short breaks and so will be relevant to the health partners of local authorities, particularly Clinical Commissioning Groups. It should also be helpful to families and providers who want to understand the legal duties on local authorities and their health partners. (21 March 2017)
DfE: Innovative projects to get £36 million funding boost: announces 11 projects that will receive a share of £36m funding under the Children’s Social Care Innovation Programme. (20 March 2017)
Re C (A Child) [2016] EWHC 3473 (Fam) (Fam Div): the local authority applied under the inherent jurisdiction for permission to obtain an order authorising C's deprivation of liberty in his current residential unit. C, aged 15, had been placed in a specialist residential unit with high levels of supervision and where staff were specifically trained to manage high levels of aggression and intimidation and to work with C to manage his sexualised behaviours. He was confined, supervised and controlled 24 hours a day.
The court held that there was a distinction between a local authority satisfying the jurisdictional gateway of s.100(4)(b) CA 1989 and the court's ultimate conclusion on whether, on the facts of the particular case, it was in the best interests of the young person for the court to exercise its inherent jurisdiction to authorise a deprivation of that young's liberty. Applying the test in Storck v Germany [2005] EHRC 406, C was confined to a restricted place for a not negligible length of time so he was, in the absence of a valid consent, deprived of his liberty. However, he was Gillick competent and so could give a valid consent in law to his confinement at the unit: he was of sufficient understanding and intelligence to enable him to understand fully what was involved in him living at the unit and the restrictions which were imposed upon. He not only understood those matters but he also understood why they were necessary and why and how they benefitted him. It was not therefore necessary to exercise the court's powers under the inherent jurisdiction. (8 March 2017)
SW & TW (Children: Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (Fam Div): this case concerned two siblings who were the subjects of separate cross-applications by their father and maternal grandmother for 'private law' orders, issued under Part II of the Children Act 1989, and also the subjects of the Council's application for care or supervision orders under Part IV of the 1989 Act. In addition, both children and their father were claimants in applications under s.7 of the Human Rights Act 1998 for declarations and damages. In the course of his guidance, the judge gave guidance on the correct procedure to be followed where claims under the HRA 1998 and proceedings under the CA 1989 arose from the same facts. HRA 1998 claims are governed by the Civil Procedure Rules 1998 and not the Family Procedure Rules 2010, so applications for substantive relief under the HRA 1998 should be issued as civil proceedings by way of a Part 8 CPR 1998 claim, and should not be issued on a Form C2, even if within existing CA 1989 proceedings. The cost of pursuing relief under the HRA 1998 could very swiftly dwarf, or indeed obliterate, the financial benefits sought and it was recommended that parties should mediate their claims. (8 March 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Combined Authorities and Devolution
DCLG: Cambridgeshire and Peterborough devolution deal: the Communities Secretary has announced a new Cambridgeshire and Peterborough Combined Authority devolution deal that will give Cambridgeshire and Peterborough: new planning and housing powers to manage planning across the region; a devolved transport budget and transport powers to help provide a more modern, better-connected network; a £600m investment fund over 30 years to grow the local economy; and £170m to deliver new homes. (16 March 2017)
Tees Valley Combined Authority (Functions and Amendment) Order 2017 (SI 2017/431): this Order, which comes into force on 8 May 2017, provides for certain functions of the Tees Valley Combined Authority’s (TVCA) constituent councils and a certain public authority function to be exercised by the TVCA, certain specified functions of the TVCA to be exercisable only by the Mayor of the TVCA and for certain governance arrangements of the TVCA. The Order has been made following the publication of a scheme for the conferral of functions on the TVCA. (16 March 2017)
Liverpool City Region Combined Authority (Functions and Amendment) Order 2017 (SI 2017/430): this Order, which comes into force on 17 March 2017, provides for certain functions of the CA’s constituent councils and certain public authorities to be exercised by the Liverpool City Region CA, and certain specified functions of the CA to be exercisable only by the Mayor of the CA. It also amends SI 2014/865 regarding certain governance arrangements of the CA as a result of the CA's decision to change its name from "Halton, Knowsley, Liverpool, St Helens, Sefton and Wirral Combined Authority" to "Liverpool City Region Combined Authority". (16 March 2017)
Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (Election of Mayor) (Amendment) Order 2017 (SI 2017/432): this Order, which comes into force on 17 March 2017, amends SI 2016/800 to postpone the date of the first mayoral election from 4 May 2017 until 3 May 2018, with elections every four years thereafter. This follows a judicial review brought by Derbyshire CC challenging the CA's consultation on its scheme under the Local Democracy, Economic Development and Construction Act 2009. The CA is therefore consulting again on its proposals but has said that it is unlikely to have completed this until after the May 2017 elections. (16 March 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Economic Development
Localis: The Making of an Industrial Strategy – Taking back control locally: this report says that the Government must broaden its focus from the major cities to small town England if it is to make an economic success of Brexit. The analysis makes the case that those parts of the country that are home to small and rural towns, which contain some of the structurally weakest local economies in England – and the same areas that voted predominantly in favour of Brexit – deserve radical new powers to revive moribund local economies. These should include devolved powers over planning to help towns and cities expand, local transport, tax-setting policy, business incentives and labour market freedoms to help attract the right talent for major local employers, the study advises. The report found that two-thirds of England has no governance structure with the strength and capacity to help deliver the Government’s national Industrial Strategy. It further suggests 47 strategic authorities, covering the totality of England, are needed to make use of new locally-held powers to boost economic output. (22 March 2017)
DEFRA: Rural proofing – Practical guidance to assess impacts of policies on rural areas: rural areas are home to one-fifth of England’s population and a quarter of all registered businesses and they contribute over 16 per cent of England’s economy each year; however, rural areas face particular challenges around distance, sparsity and demography, so government policies are required to take these into account at all stages of development. This guidance for policy makers and government analysts sets out a four-stage process to achieve this objective. (16 March 2017)
Welsh Government: Historic Swansea Bay City Region deal secures 10,000 jobs and £1.3bn investment for South West Wales: announces a £1.3bn City Deal for the Swansea Bay region with 11 major projects planned across the region in energy, smart manufacturing, innovation and life science. The City Deal brings together Swansea, Carmarthenshire, Neath Port Talbot and Pembrokeshire Councils and includes £115.6m of UK Government funding, £396m of other public sector money and £637m private sector investment. (20 March 2017)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
LGO: All on board? Navigating school transport issues: this focus report finds that changes to councils’ transport policies are having an increasing effect on children trying to get to school. The LGO is upholding more complaints from parents and carers who need to find alternative ways to get their children to school when councils change their policies, or the way they apply them. In 2015/16 the LGO received 261 complaints and enquiries about school transport compared with just 160 in the previous year. The report offers advice and guidance both for parents and councils on the school transport decision making process. It also offers advice on ways local councillors can scrutinise their own processes to ensure their policies are open and accountable. (17 March 2017)
DfE: Exclusion guidance 2017: seeks views on planned changes to statutory guidance for local authority maintained schools, academies and pupil referral units, including two non- statutory annexes. The consultation closes on 25 April 2017. (14 March 2017)
DfE: Creating a culture – How school leaders can optimise behaviour: this independent review by Tom Bennett provides practical guidance to teachers about how to tackle bad behaviour in the classroom. His report concludes that while there is no silver bullet, there are a variety of strategies that can be used to tackle poor behaviour, including: teacher training; school rules and routines; effective use of premises; and internal inclusion units. It also highlights that although standards of behaviour can be a challenge for schools, leadership is key to creating the right culture to tackle this issue. (24 March 2017)
NAO: Capital funding for schools: this report finds that the DfE, working with local authorities and schools, has created a large number of new school places and is making progress in improving schools in the worst condition, but significant challenges remain and the expected deterioration in the condition of the school estate is a significant risk to long-term value for money. Responsibility for maintaining the condition of school buildings is devolved to schools, multi-academy trusts and local authorities. The DfE’s property data survey estimates it would cost £6.7bn to return all school buildings to satisfactory or better condition, and a further £7.1bn to bring parts of school buildings from satisfactory to good condition. The most common major defects are problems with electrics and external walls. It concludes that the DfE has responded positively to start to meet the challenges it faces in relation to the quality and capacity of the school estate. To deliver value for money, the DfE must make the best use of the capital funding it has available - by continuing to increase the use of data to inform its funding decisions and by creating places where it can demonstrate that they will have the greatest impact. (22 February 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Elections
Cabinet Office: Electoral Integrity Pilots – Prospectus: Sir Eric Pickles' review of electoral fraud recommended that the Government should consider exploring the implications of asking voters to present identification at polling stations before being able to vote. The Government has since announced its intention to run a number of pilot schemes, in partnership with local authorities, at local government elections in May 2018. The purpose of the pilots is to assess the impact of asking voters to present identification on all aspects of elections in Great Britain. This publication invites expressions of interest from local authorities interested in participating in voter identification pilots. It states that the deadline for submitting an EoI is 24 March 2017 – four days after the publication date. (20 March 2017).
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Equality and Discrimination
Achbita v G4S Secure Solutions NV (Case C-157/15) [2017] EUECJ C-157/15 (ECJ): A was employed by G4S in Belgium as a receptionist. She informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours. G4S's management informed A that the wearing of a headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to G4S’s position of neutrality. She was dismissed after she continued to insist that she wished, as a Muslim, to wear the Islamic headscarf at work. She appealed against her dismissal. In the course of proceedings, the Belgian Supreme Court asked the European Court of Justice whether G4S's policy of neutrality amounted to direct discrimination under the Equal Treatment Framework Directive 2000/78.
The court ruled that G4S's headscarf ban did not constitute direct discrimination. There was no evidence that A was treated differently compared to any other worker, so there was no difference in treatment, whether based on religion or otherwise – all employees were treated the same.
The court then went on to make some comments about indirect discrimination. It considered that a policy on work-wear could amount to indirect discrimination but it would be for the national courts to decide whether the way in which the employer pursued its aim of projecting a certain corporate image was appropriate and necessary. G4S's policy might be justified if it was approached in a consistent and systematic manner and did not go further than necessary – for example, if the policy only applied to employees in a customer facing role. (14 March 2017)
See our comment on this case in the March 2017 issue of Bevan Brittan's Employment Eye: Headscarves tied in knots.
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
European Union
European Union (Notification of Withdrawal) Act 2017: this Act has received Royal Assent. It give the Government the formal power to trigger Article 50 of the Lisbon Treaty. The Secretary of State for Exiting the European Union has announced that the UK intends to invoke Article 50 on 29 March 2017. (16 March 2017)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Governance
DCLG: London Borough of Tower Hamlets – Proposed Directions: the Secretary of State has announced that he is minded to return all executive functions to the Mayor and council of Tower Hamlets, withdraw commissioners from 31 March 2017 and put in place revised reporting requirements for 18 months from 1 April 2017. These decisions have been taken after considering the fourth report from the Mayor of Tower Hamlets on their progress against their Best Value Action Plan and the letter from Commissioners on the performance of Tower Hamlets in relation to the Directions. This letter seeks views on the proposed return of powers. The deadline for responses was 22 March 2017. (16 March 2017)
DCLG: Return of further powers to Rotherham: the Communities Secretary has confirmed the return of seven additional powers to Rotherham MBC. These relate to functions regarding: the power to appoint Council representatives to external bodies; adult social care and the council's partnership with the NHS; external partnerships; economic growth; town centre; grounds maintenance; and audit. The revised Directions set out the details. (21 March 2017)
NAO: Internal Drainage Boards: IDBs are responsible for managing water levels in low-lying areas where there is a special drainage need and contributing to flood risk management. IDBs cover nearly 10% of England’s land area and spent more than £61m last year. This report focuses on: governance and oversight arrangements; processes for raising concerns; and the potential for conflicts of interest. (21 March 2017)
Size and Composition of Local Planning Authority Committees (Wales) Regulations 2017 (SI 2017/459 (W.97)): these regulations, which come into force on 5 May 2017, require Welsh local planning authority committees and sub-committees to have no less than 11 members and no more than 21 members of the authority. In relation to multiple member wards, only one member of the ward is eligible for appointment to a committee or sub-committee, except where a local planning authority is comprised solely of multiple member wards. (21 March 2017)
Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017 (SI 2017/460 (W.98)): these regulations, which come into force on 5 May 2017, insert a new reg.4A and new Sch.2A into the Local Authorities (Standing Orders) (Wales) Regulations 2006 (SI 2006/1275) (W.121) to require a Welsh local planning authority to include in their standing orders a requirement that the quorum for their meetings must include at least half of the committee’s members. Relevant authorities must make or modify their standing orders so that they include these provisions. (21 March 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Social Care
LGA: Councils need "full flexibility" over new £2 billion social care funding: council leaders are calling for "full flexibility" in how they use the £2bn in new social care funding announced in the Budget. Government is currently in the process of drawing up guidance for councils on how the money is spent. While there is an expectation that the funding should be used to reduce the immediate pressures on the NHS, the LGA is clear that councils, who are best placed to understand the needs of their communities, should remain free to determine which social care services should be targeted. With hospitals accounting for one in five of social care referrals, other areas of social care are also under great pressure and in need of adequate funding. (22 March 2017)
SCIE: Total transformation of care and support – Creating the five year forward view for social care: How transformed and integrated health and care could improve outcomes and cost-effectiveness: this paper explores the potential for scaling up the most promising examples of care, support and community health services, using data from Birmingham City Council, to see what their impact would be on outcomes and costs. Originally published in November 2016, it has been updated to include additional models. (14 March 2017)
LGA: Health and wellbeing in rural areas: one local authority area can contain a number of different rural communities as well as cities and towns and can exemplify health inequalities with life expectancy differing across different groups by up to 10 years. Because of this diversity, local authorities need to understand in some detail the character of their rural populations and the health issues facing them. These case studies share what is known about the health of rural communities, where certain social determinants may have a greater impact in the countryside than they do in cities. They show how local authorities and their public health teams are developing innovative partnerships to address the health inequalities that exist within and between rural areas. (11 March 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
DCLG: Planning Act 2008 – Guidance on nationally significant infrastructure projects and housing: this guidance on changes to the Planning Act 2008 made by s.160 of the Housing and Planning Act 2016, which allow development consent to be obtained for housing that is related to a nationally significant infrastructure project under the 2008 Act. It includes a guide to the planning process for handling applications for nationally significant infrastructure projects which include housing and the considerations that developers as well as local authorities and other consultees will need to take into account at each stage of that process. (21 March 2017)
DCLG: New grant for council homelessness services: announces a new flexible homelessness support grant that will give councils greater flexibility to prioritise homelessness prevention, with £402m funding over the next two years. The new grant will empower councils with the freedom to support the full range of homelessness services. This could include employing a homelessness prevention or tenancy support officer to work closely with people who are at risk of losing their homes. The Government has also published the allocations for the flexible homelessness support grant: 2017-18 to 2018-19, which includes an explanatory note on how it calculated these allocations. (15 March 2017)
DCLG: More than 100 housing estates receive regeneration cash boost: announces the local authorities and housing associations that will receive a share of the £32m Estate Regeneration Fund to speed up the building of thousands of new homes. (24 March 2017)
Abolition of the Right to Buy and Associated Rights (Wales) Bill: this Bill has been introduced into the Welsh Assembly and is at Stage 1. The Bill proposes to end the rights of eligible social housing tenants to purchase their homes under the Right to Buy and the Right to Acquire, in order to protect Wales’ social rented housing stock from further reduction. (13 March 2017)
Town and Country Planning (Brownfield Land Register) Regulations 2017 (SI 2017/403): these regulations, which come into force on 16 April 2017, place a duty on local planning authorities which have responsibility for housing development in their area (usually the district council) to prepare, publish and maintain a register of previously developed land (“brownfield land”) which is suitable for residential development. Land which has been entered onto Part 2 of the this register is granted “permission in principle" for housing development. (20 March 2017)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Judicial Review
R (Muir) v Wandsworth LBC (Unreported, Admin Ct): M applied for relief from sanctions for non-payment of a continuation fee under r.3.7(1)(d) CPR in his claim for judicial review of the Council's decision to grant a lease of premises on a local common to a company to operate a nursery school. The court held, granting the application, that non-payment of court fees was a significant or serious breach and there was no good reason for the non-payment. M's previous record of compliance with orders had been exemplary, and his application for relief had been made very promptly once the exercise of sanction was discovered. Further, M himself was not to blame. M's solicitor had not deliberately ignored a warning but he had had the relevant document and was aware of the obligation but took no steps. His evidence was that he thought he did not need to do anything based on what he had been told by court counter staff. It was quite wrong for qualified solicitors to seek advice from non-qualified counter staff. No procedural step had been held up and the delay caused by the breach and the application for relief was not significant. On balance the interests of justice required relief from sanction, so that the issue, which was locally important, could be litigated, (23 March 2017)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Licensing
PHE: Alcohol licensing – Using case law: guidance produced by LLG and PHE giving an introduction to case law most relevant to the Licensing Act 2003. It outlines some decisions that have been handed down by courts that public health teams can use to when contributing to hearings. (13 March 2017)
LGA: Taxi and private hire vehicle (PHV) licensing: in Spring 2014, the Law Commission published a report into its review of taxi and PHV licensing, including a draft reform Bill. The Government is now planning to respond to the review and has sought the LGA’s view on the Law Commission’s proposals. This paper presented to the LGA's Safer & Stronger Communities Board seeks the Board’s view and updates the Board on its ongoing work to improve taxi and PHV licensing. (20 March 2017)
Licensing Act 2003 (Miscellaneous Amendments) Regulations 2017 (SI 2017/411): these regulations, which come into force on 6 April 2017, amend some of the prescribed forms and notices issued under the Licensing Act 2003, in order to reflect changes made by: the Deregulation Act 2015, Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Immigration Act 2016 and the Legislative Reform (Entertainment Licensing) Order 2014. (16 March 2017)
Equality Act 2010 (Taxis and Private Hire Vehicles) (Passengers in Wheelchairs – Notices of Exemption) Regulations 2017 (SI 2017/342): s.165 of the Equality Act 2010 places duties on drivers of designated wheelchair accessible vehicles to provide assistance to passengers in wheelchairs; s.166 enables a licensing authority to issue an exemption to a driver if they consider that driver has a medical or physical condition, which makes it impossible or unreasonably difficult for that driver to comply with the duties under s.165. If a driver is exempt, the authority must issue that driver with an exemption certificate and the driver must display a notice of exemption in their vehicle. This instrument sets out the format and manner of display of the notice of exemption. (15 March 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Police
Mayor of London: A safer city for all Londoners – Police and Crime Plan 2017-21:the Mayor of London has launched his new Police and Crime Plan that aims to restore real neighbourhood policing, create a safer city for everyone in London and commits to protecting the most vulnerable Londoners at the most challenging time in the Met’s recent history. The four-year strategy promises extra protection and support for children and young people, in tackling violence against women and girls and in standing together against hatred and intolerance. It commits to tackling a postcode lottery in public safety that means some people and places are more vulnerable to and fearful of crime than others. The Mayor will ensure the police focus on tackling problems of most pressing local concern, while maintaining a consistently high standard of service for all Londoners. (20 March 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Procurement
Milton Keynes BC v Viridor (Community Recycling MK) Ltd (No 2) [2017] EWHC 239 (TCC): the Council sought rectification of its waste recycling contract with V on the grounds of common or unilateral mistake. The contract tender was conducted under the competitive dialogue process. The documents in the final tender bid included an Income Generating Payment Mechanism (IGPM) which identified a fixed payment of £500,000 per annum "indexed for inflation". However, the version of the IGPM included in the contract was not the version that was sent out by V as part of its final tender but the earlier version that had been sent out by the Council with the invitation to tender. The evidence showed that the IGPM incorporated into the contract was inoperable, because there were so many vital parts that were missing.
The court held that the Council had been able to demonstrate all of the relevant ingredients for rectification, on the basis of either common mistake or unilateral mistake. It was in the very nature of a mistake that it was not picked up by those who should have spotted it. Merely because the mistake was so glaring did not mean that it could not have been a mistake at all. There was compelling evidence as to how the mistake happened, and the fact that it was not spotted by either side. That was sufficient to demonstrate that a mistake was made and nothing further was required. The question was then whether it was a common mistake or a unilateral mistake sufficient to justify a claim for rectification. It was plain that the Council made a mistake in that it signed off a version of the contract which included the ITFT version of the IGPM, rather than the version completed and sent back by V. In addition, V made precisely the same mistake. On this basis, there was a common mistake and all of the ingredients were in place to permit rectification. The alternative case of unilateral mistake was also made out. The entire agreement clause was immaterial –where there was a strong case for rectification, the agreement which constituted "the entire agreement" was the contract as rectified and not in the contract which, ex hypothesi, did not reflect the true intention or agreement of the parties.
The court dismissed V's defence to the claim for rectification based on laches and acquiescence. Laches could only attach from the date when the Council realised the mistake. The Council had immediately put V on notice of the mistake and its consequences so any delays were, at worst, a shared responsibility. There was no detriment to V. It was V's own delay during that period, and its own failure to pursue the original vendors, which was directly responsible for the failure of that claim. There was no evidence of acquiescence by the Council in the proposition that, contrary to the accepted tender, the fixed payment would not be subject to indexation nor was there any detriment to V.
The court ordered that the contract was to be rectified by the replacement of the wrong IGPM with the correct IGPM. The contract would then properly record the parties' rights and liabilities. (22 February 2017)
Wylde v Waverley BC [2017] EWHC 466 (Admin) (Admin Ct): W and others applied for judicial review of the Council's decision to amend a development agreement with the interested party, which had been entered into following a competitive tendering process. W alleged that the Council had failed to comply with public procurement rules. The agreement included a "viability condition", which called for a financial appraisal of the development so as to arrive at a land value for the site and which had to be satisfied before the agreement became unconditional. Following advice from property consultants, the Council varied the viability condition so that the minimum land value was reduced to a figure of £3.19m, and it was further varied in terms of the interested party's profit element. After these proceedings had been commenced, the Council published a Voluntary Ex Ante Transparency (VEAT) Notice advertising its intention to enter into the contract to other economic operators. No responses were received from any economic operator in relation to the VEAT Notice. The court was asked to determine as a preliminary issue W's standing to bring the claim. The Council argued that W was unable to demonstrate standing under the established case law; alternatively, that judicial review was not an available remedy to a person who could not bring themselves within the scope of the remedies provided by the Public Contracts Regulations 2006. The claimants were members of the Council, the town council and local civic societies, and were all council tax payers.
The court held, refusing the application, that in assessing the question of standing, a key issue was the legislative framework within which the decision arose. Another consideration was the strength of the claimant's case, albeit that would not be determinative or a conclusive factor. A finding that a person's rights or financial interests were not directly affected by the decision would not necessarily be conclusive that standing had not been established; however, such cases would require particular public interest features and particular qualifications of a claimant so as to support the existence of a sufficient interest in the case.
The court then analysed case law that considered standing in relation to public procurement challenges, in particular R (Chandler) v Secretary of State [2009] EWCA Civ 1011. This showed that it was the purpose of the legislation, its aims and objectives, that were the important question, rather than the ultimate motivation of the claimant (unless motivated by ill-will or other improper purpose). The purpose of the Public Contracts Regulations was to provide an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and also a bespoke system of remedies for those parties who were directly involved in competing for such contracts and participating in the market for them. While the public interest was served by these aims and objectives, this did not mean that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It was entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who was not an economic operator, to only those who could show that performance of the competitive tendering procedure might have led to a different outcome that would have had a direct impact on him. A council tax payer, concerned local resident or local authority member could not without more bring themselves within that test – there was no direct impact upon them as a consequence of the alleged failure in any procurement requirements.
Here, W were unable to demonstrate that they had standing to bring this claim. They had not shown that any competitive tendering exercise for the varied contract would produce a different outcome and, more significantly, the VEAT Notice did not demonstrate that there was any competing interest available. W were unable to demonstrate any direct impact upon them which would arise from the conduct of a competitive tendering exercise. Not only were they not economic operators, but they were not remotely approximate to any economic operator, nor could they begin to demonstrate any interest in the procurement process which might be akin to or a proxy for status as an economic operator. (9 March 2017)
Bevan Brittan's Byte Size Procurement Updates – The Selection Questionnaire: we have published the final two articles in our "SQ Bytes" series that looks at the Selection Questionnaire (SQ) issued by the Crown Commercial Service (CCS):
• Byte 6 – The SQ and the new European Single Procurement Document "ESPD": considers the interaction between the SQ and the ESPD.
• Byte 7 – Self-cleaning: runs through the concept of self-cleaning and the provisions on self-cleaning in the Regulations and explores some practical issues.
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Public Health
LGA: Public health transformation four years on – Maximising the use of limited resources: this compilation of case studies shows how local authorities continue to make progress on improving health and wellbeing and tackling health inequalities since public health was formally transferred from the NHS in April 2013. They aim to show just what potential there is for public health, if properly resourced, to make inroads in improving health and wellbeing. (9 March 2017)
LGA: Public health working with the voluntary, community and social enterprise sector – New opportunities and sustainable change: these case studies show how public health and the voluntary, community and social enterprise sector (VCSE) are working together to make a real difference to people's health and wellbeing. (10 March 2017)
LGA: Maintaining our momentum – Essays on four years of public health: public health made the formal transfer to local government in April 2013, and in the last four years great strides have been made to tackle the wider social and economic determinants of poor health. This publication was commissioned by the LGA to capture the thoughts of those working hard to make the new system work. It includes contributions from councillors, directors of public health, providers, commissioners, academics and other key decision makers. (9 March 2017)
PHE: Government funds school resource for drug and alcohol prevention: PHE has announced new funding to expand Mentor UK’s ADEPIS resource into more schools and community settings. The programme helps equip young people with the life skills and resilience to deal with the challenges they face with alcohol and drugs. (13 March 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Regulatory Services
Deregulation Act 2015 (Growth Duty Guidance) Order 2017 (SI 2017/268): this Order brings into force on 29 March 2017 the Growth Duty statutory guidance issued by the Secretary of State under s.110(1) of the Deregulation Act 2015. The Act requires a person exercising a specified regulatory function to have regard to the desirability of promoting economic growth when exercising that function – the Growth Duty. They must also have regard to the statutory guidance, which provides additional detail on compliance. (8 March 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Standards
Committee on Standards in Public Life: Ethical standards for providers of public services – Follow-up: reports that the Committee is undertaking a follow-up review of how the Nolan Principles are being upheld by providers of outsourced public services. It is seeking to find out whether there have been changes in how providers uphold ethical standards since its 2014 report, and assess how providers used the guidance. It will also be looking at how government has responded to recommendations for transparent commissioning based on ethical expectations. (16 March 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
