Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More19/06/2017
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:
Adult Social Services
LGO: Family charged thousands of pounds for care a nursing home could not prove it had provided: the LGO has criticised Worcestershire CC after a care home provider charged a vulnerable dementia patient for care which it could not prove it had provided. The LGO found that the Council had failed to assess the woman’s needs properly, including her mental capacity, following her move. Because of this flawed assessment, the Council wrongly regarded the woman as capable of self-funding her own care. Although the woman had the savings to fund her own care, she had no capacity to do so and no-one to manage her finances. Despite this, and contrary to the law, the Council stopped paying for the woman’s care. As well as requiring new invoices to be issued and the patient's estate to be refunded, the LGO also made a number of recommendations for the Council to improve working with the hospital and social workers and to review whether it works with the care provider in future. (15 June 2017)
LGO: Ombudsman finds systemic fault in council’s charging policy for Dudley care homes: the LGO has reminded local authorities of the need to offer affordable care home placements to families when arranging relatives’ care. This follows an investigation into Dudley MBC where the LGO upheld a complaint from a family who were given no alternative but to pay a ‘third party top-up fee’ to help pay for their mother’s care. (14 June 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. The paper explains the additional funding for adult social care that the 2015 Conservative Government announced in the last Parliament, and discusses wide-spread concerns about a growing social care ‘funding gap’ and the need for a long-term sustainable funding solution. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Anti Social Behaviour
LGA: Public Spaces Protection Orders – Guidance for councils: sets out the issues to consider where local areas are contemplating introducing a PSPO, and offers practical guidance on the steps to take if councils choose to do so. It should be read in conjunction with the Home Office’s statutory guidance on the Anti-social Behaviour, Crime and Policing Act 2014. (13 June 2017)
If you wish to discuss any of the items noted in this section please contact Steven Eccles.
Children's Services
House of Commons Library: Sure Start (England): this briefing paper details the introduction, implementation and development of the Sure Start policy of early intervention for pre-school children and their parents. It sets out the development of the policy from local programmes to local authority administered children’s centres, as part of which Sure Start was changed to a universal service for all families, and the creation of a statutory basis for children’s centres in 2009. The 2010 Coalition Government also implemented a number of changes to the Sure Start programme, including the introduction of a core purpose for children’s centres and new statutory guidance. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Education
DfE: Timeline for local-authority-maintained schools – Mandatory: information for local authority maintained schools to help them understand and plan for the legal requirements which they must meet. (15 June 2017)
Welsh Government: Draft EOTAS Framework for Action – Improving outcomes for learners accessing education otherwise than at school provision: seeks views on proposals to improve outcomes for learners accessing education otherwise than at school (EOTAS). The proposals follow on from reports which identified that the availability of places, the nature and the purpose of provision, was highly variable between authorities. There were issues with EOTAS provision across the sector, but in particular the quality of the curriculum available and difficulties in providing a full curriculum. Also, the Children’s Commissioner for Wales has raised concerns about Pupil Referral Units (PRUs). The consultation closes on 31 July 2017. (5 June 2017)
Welsh Government: Repealing provisions in the Education (Schools and Further and Higher Education) Regulations 1989 and the Education (Special Educational Needs) (Approval of Independent Schools) Regulations 1994: seeks views on proposals to repeal regulations relating to the consent for ionising radioactive materials in education and to repeal provisions relating to the inspection of boarding hostels for pupils with special education needs. The consultation closes on 26 July 2017. (14 June 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Electronic Communications
LGA: Get in on the Act – Digital Economy Act 2017: the Digital Economy Act 2017 makes provision about electronic communications infrastructure and services. It also introduces reform of the Electronic Communications Code, and provides greater clarification on data sharing between public bodies. This publication aims to provide readers with an introduction to the Act and summarises the main issues on which the LGA lobbied on behalf of councils. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Richard Lane.
Emergency Planning
DCLG: Grenfell Tower fire – Support for people affected: advice on where to seek urgent assistance and information, including the official helplines for this incident. It also provides guidance on support services available for victims and all those affected by the Grenfell Tower fire.
The Government has confirmed that the Bellwin scheme will be activated to support the immediate response operation following the horrific fire at Grenfell Tower in London. Under the scheme, financial assistance is available to local authorities to help with immediate costs following a disaster or emergency in their area that involves danger to life or property. See details of Grenfell Tower Residents’ Discretionary Fund. (19 June 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Enforcement
Harlow DC v McGinley (Unreported, QBD): the Council applied to vary a final injunction which prevented a group of travellers from using an unauthorised encampment, and to extend its duration, add five further defendants, and include a further parcel of land within its scope. The court held, granting the application, that it was proportionate to extend two injunctions against the travellers, preventing them from encamping without authorisation on sites in the local authorities' areas. Evidence demonstrated that the travellers would return to the sites and continue to fly-tip if the injunction was not in place. There were economic consequences of not extending the injunction, including the associated clean-up costs for landowners and the local authorities. (14 June 2017)
The judgment is available on Lawtel (password required).
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Health and Social Care
Welsh Government: Phase 2 implementation of the Regulation and Inspection of Social Care (Wales) Act 2016 – Workforce aspects: the 2016 Act establishes a new system of regulation and inspection which upholds the rights of Welsh citizens to dignified, safe and appropriate care and support. This paper seeks views on draft regulations that require providers of domiciliary support services to distinguish between travel time and care time, and provide domiciliary care staff with an alternative to zero-hours contracts. The consultation closes on 7 August 2017. (12 June 2017)
House of Commons Library: Health and social care integration: this updated briefing paper analyses recent policy and debate on the integration of NHS-provided healthcare and local authority-provided social care in the UK. This has been a key policy priority for successive Governments, with the aim of improving patient care and saving money for the NHS and local authorities. (9 June 2017)
NLGN: Health and social care integration – Round table write-up: health and social care integration is something of a hot-button issue recently, as the development of Sustainability and Transformation Plans has reflected the lack of progress in some areas. Reflecting its increasing prominence, NLGN convened two roundtables in London and Manchester with a range of officers, practitioners, elected members and thought leaders from the local government and health fields. These roundtables were held in January and March 2017 and this write-up is based on those discussions. (1 June 2017)
City of London Corporation: Improving social wellbeing in the City of London: sets out the Corporation's plans to tackle social isolation in the City of London. It summarises the first lot of findings from the Social Wellbeing Panel that was established in 2016 to learn more about how to reduce loneliness and to hear about activity that has been successful elsewhere. (8 June 2017)
Re IH (Observance of Muslim Practice) [2017] EWCOP 9 (CoP): in a case concerning a person with a profound learning difficulty, the court gave guidance on the application of the "best interests" test when considering fasting and hair removal in accordance with Muslim practice. (12 June 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Housing
House of Commons Library: Housing supply for local authorities (England): this Excel tool enables the user to view and compare local-level housing information. It aims to answer questions such as: how much social housing is there in my area? How many new homes were built in my area last year, and how does this compare with other local authorities? How many new affordable homes have been provided near me? (9 June 2017)
LGA: Get in on the Act – Homelessness Reduction Act 2017: the Homelessness Reduction Act 2017 sets out new duties on English local authorities with the aim of preventing homelessness. It received Royal Assent on 27 April 2017. This guide sets out the key provisions and their implications for local government. It also summarises the LGA's role in influencing the legislation. (9 June 2017)
House of Commons Library: Allocating social housing (England): this briefing paper outlines the legal framework contained in Part 6 of the Housing Act 1996 within which English local authorities allocate their housing stock. Nominations by local authorities to stock owned by housing associations (also known as private registered providers) are allocated within the same legal framework. (9 June 2017)
House of Commons Library: Discretionary housing payments: this briefing paper explains the funding position and considers evidence on how Discretionary Housing Payments (DHPs) are allocated by local authorities. DHPs are applied to help with shortfalls between Housing Benefit and the rent due in certain circumstances. (9 June 2017)
R (C) v Islington LBC [2017] EWHC 1288 (Admin) (Admin Ct): C applied for judicial review of the Council's decision regarding her application for housing. She contended that the local lettings policy within the Council's allocation scheme unlawfully discriminated against homeless people, victims of domestic violence and therefore women, contrary to Art.14 and Art.8 ECHR, s.29 and s.149 of the Equality Act 2010, and was also a breach of s.11 of the Children Act 2004.
The court held, granting the application in part, that the Council's procedure for operating the provision of direct offers of social housing under the allocation scheme was unlawful. Also, the Council's original decision and its review were also unlawful in view of the lack of evidence that C's application was considered under this part of the scheme, or, if it was considered, as to the reasons why a direct offer was not made to her. There was nothing in the scheme which set out the criteria used to make direct offers, so as to enable an applicant, such as C, both to make a realistic application to be dealt with under this system, and to know whether they were likely to succeed. These matters were not ones of mere detail, but were central to the operation of this aspect of the scheme, so that they amounted to a breach of s.166A(1) of the Housing Act 1996. The local lettings policy discriminated against those who had had to move from the area in which they had been living due to domestic violence, and had thereby become homeless, as they were unable to compete for new housing on the same favourable terms as the tenants of social housing situated in the area in which new homes had been built; this also amounts to discrimination on the grounds of sex because of the high likelihood of victims of domestic violence being women. However, in the context of the 2015 scheme as a whole, the local lettings policy had a beneficial effect upon the provision of social housing within the borough, in that it facilitates the securing of reasonable preferences to those who were entitled to it under s.166A(3) of the 1996 Act. The local lettings policy could not be any less intrusive, in the sense of being less detrimental to C, and still maintain its legitimate aim. The discrimination was justified on the grounds of proportionality because it struck a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of its legitimate aim. (31 May 2017)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Licensing
Welsh Government: Taxi and private hire vehicle licensing in Wales: seeks views on proposals published by the Law Commission for England and Wales on the reform of taxi and private hire vehicle licensing. These include: the introduction of national standards for all taxis and private hire vehicles; tougher penalties on touting, including impounding vehicles; bring pedi-cabs and novelty vehicles, including stretch limousines, within the scope of taxi and private hire regulation; and retain the ability of local licensing authorities to limit the number of taxis working in their area. The consultation closes on 8 September 2017. (12 June 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Planning
R (Hayes) v City of York Council [2017] EWHC 1374 (Admin) (Admin Ct): H applied for judicial review of the Council's decision to grant planning permission for the construction of new features at a scheduled monument, Clifford's Tower in York. The court considered the application of Section 12 of the National Planning Policy Framework on conserving and enhancing the historic environment, and in particular para.141 which states that "documentary record of our past is not as valuable as retaining the heritage asset, and therefore the ability to record evidence of our past should not be a factor in deciding whether a proposal that would result in a heritage asset's destruction should be given consent".
The court held, refusing the application, that the last sentence of para.141 only made good sense if interpreted so that the words "should not be a factor" were taken to mean "should not be a decisive factor", in deciding whether the harm to the asset should be permitted. Taking a sensible and liberal construction of the paragraph in its proper historical context, the officer's report and the committee's decision were not taken inconsistently with the concluding words of NPPF para.141. The recording of evidence of the past was not the sole justification for the development. It was treated as part of the public benefit flowing from the project, but that was not unlawful. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Police
House of Commons Library: Police complaints systems in the UK: this briefing paper gives basic factual information about the police complaints system in England and Wales to assist MPs with constituents’ questions. It also gives brief information on the systems in Scotland and Northern Ireland for comparative purposes. It provides background for the major reforms to the system that are coming in under the Policing and Crime Act 2017. (15 June 2017)
Home Office: User guide to operation of police powers under the Terrorism Act 2000 and subsequent legislation: this reference guide with explanatory notes includes sections on data providers, arrests and outcomes, terrorist and extremist prisoners and stops and searches. (15 June 2017)
LGA: Get in on the Act – Policing and Crime Act 2017: the Policing and Crime Act 2017 aims to enhance the democratic accountability of police forces and fire and rescue services, improve the efficiency and effectiveness of emergency services through closer collaboration and build public confidence in policing. This guide sets out the key provisions and their implications for local government. It also summarises the LGA's role in influencing the legislation. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Procurement
Alstom Transport UK Ltd v London Underground Ltd [2017] EWHC 1406 (TCC): when considering an unsuccessful tenderer's application for specific disclosure, the court set out a number of factors to be considered when determining the order in which competing applications concerning the outcome of a tender process should be heard. An application to lift the suspension of the proposed contract would not always be heard in advance of an application by an unsuccessful tenderer for specific disclosure. (15 June 2017)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Transport
LGA: Get in on the Act – Bus Services Act 2017: the Bus Services Act 2017 provides Mayoral Combined Authorities with significant London-style powers to franchise local services, enabling local authorities to determine and specify the bus services to be provided in an area, with bus operators bidding to provide the services. It will allow local authorities to specify the services that passengers want and deliver an integrated network of services with co-ordinated timetables, ticketing and branding. The Act, which received Royal Assent on 27 April 2017, offers a simpler and more cost-effective route to franchising than the current quality contracts approach. This guide sets out the key provisions and their implications for local government. It also summarises the LGA's role in influencing the legislation. (9 June 2017)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Welfare and Benefits
DWP: Personal Independence Payment (PIP) handbook: updated handbook for individuals and organisations that support people who may be entitled to PIP. It provides up-to-date information about PIP and lists other sources of help for claimants. (12 June 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
