Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More14/08/2017
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
LGSCO: Hackney council takes too long to pay woman’s care bill: the Local Government and Social Care Ombudsman has asked Hackney LBC to pay nearly £20,000 in care home fees, after it found the Council had taken too long to carry out a care assessment of a vulnerable woman, under-funded many months’ worth of fees, and wasted time disputing responsibility with another council. (2 August 2017)
R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 (Sup Ct): the issue in this case was whether the NHS Local Health Boards or the Welsh local authorities (with means-tested contributions from clients) were responsible for paying for the work done by registered nurses in social rather than health care settings.
The Supreme Court allowed the local authorities' appeal against a decision concerning the funding of care provision carried out by registered nurses in care homes and the interpretation of the term "nursing care by a registered nurse" in s.49 of the Health and Social Care Act 2001. The court held that the correct interpretation of s.49 was that "nursing care by a registered nurse" covered: (a) time spent directly or indirectly on nursing care, in the sense of care which can only be provided by a registered nurse; (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide. If Parliament had wanted to restrict the definition of "nursing care by a registered nurse" to tasks which could only be performed by a registered nurse then it could and would have said so. Equally, if it had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it also could and would have said this. The provision of an overall, holistic, person-centred plan for each resident who needed some nursing care required the nurse to engage in social and personal tasks as part of that care. Some caring tasks could not sensibly be parcelled up between nursing and non-nursing care. It was a matter of fact, and one for the decision makers, what part of the care provided by registered nurses would fall within this definition. Time spent on paid breaks and on receiving supervision was, however, a necessary part of providing the services registered nurses were there to provide.
The Local Health Boards’ decision was based on a misinterpretation of s.49(2) and would be quashed and retaken in the light of the court's guidance, ideally after negotiation with all the parties governed by the legislation and with an interest in the outcome.
See also the press summary. (2 August 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Children's Services
LGA: Children's social care at breaking point, council leaders warn: new analysis reveals that in 2015/16 councils surpassed their children’s social care budgets by £605m in order to protect children at immediate risk of harm. The LGA warns that the pressures facing children’s services are rapidly becoming unsustainable, with a £2bn funding gap expected by 2020. Unless urgent action is taken to reduce the number of families relying on the children’s social care system for support, this gap will continue to grow. (9 August 2017)
DfE: Improvement notice issued to Gloucestershire County Council: this improvement notice requires the county council to take steps to improve its children’s services. It follows a 13 June 2017 report by Ofsted which judged the overall effectiveness of children’s services to be inadequate. (10 August 2017)
Southend BC v CO [2017] EWHC 1949 (Fam) (Fam Div): the respondent parents' three children were made the subject of care orders. They did not appeal the orders but instead set up an online petition on a Government website airing their grievances; the mother also published some information on her Facebook page concerning the proceedings in respect of the children. The council applied for an injunction under the inherent jurisdiction of the High Court, prohibiting the parents from publishing information about the proceedings and compelling them to remove such material as had already been published. The parents agreed to remove the material that had been published on Facebook and to remove the pictures, names and ages of the children that had been published on the main page of the petition; however, they refused to remove the petition in its entirety as they submitted they had a right to protest about decision of the court and to petition Parliament and the Prime Minister in respect of their grievances.
The court held, refusing the application, that the Council had not made out a case for an order compelling the parents to remove the petition from the website in its entirety. Such a decision, without justification, would constitute an interference with their Art.10 right to freedom of expression. The justifications on which the local authority sought to rely for interfering with the parents' right to freedom of expression under Art.10 were poorly evidenced and largely speculative in nature. There was no evidence to support the Council's contention that the presence of the petition, and its contents would cause emotional harm to the children by means of causing them upset and potentially de-stabilising their respective foster placements; nor was there any evidence to support the alleged risk that the material already in the public domain would cause ongoing embarrassment and, potentially, emotional harm to the children as they got older. The fact that information was already in the public domain did not prevent injunctive relief where it could be shown that the repetition of known facts about an individual amounted to an unjustified interference with the private life of that person; however, the nature of the information was important. The Art.10 right to freedom of expression outweighed the children's Art.8 right to respect for private and family life when it came to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, compelling the parents to take down their online petition or to remove from the petition the mother's name and the responses which utilised the forenames of the children, did not represent a proportionate response to the risk to the children presented by the limited amount of information concerning the children that the petition now contained.
Cases dealing with the publication of information concerning children who were the subject of family proceedings would necessarily involve competing interests. The court was required to balance a right that was important to the individual subject children against a cardinal right that was important to parents, to children and to society as a whole. Where the court was required to strike this balance, a solution that comprehensively satisfies all interests was not possible. (28 July 2017)
LGA: Get in on the Act – Children and Social Work Act 2017: provides an introduction to the Act and summarises the main issues on which the LGA campaigned. The Act is intended to improve support for looked after children and care leavers, promote the welfare and safeguarding of children, and make provisions about the regulation of social workers. It makes changes to the arrangements for local child safeguarding partnerships and the serious case review process, including provision for a central Child Safeguarding Practice Review Panel for cases of national importance. It also establishes a new regulatory regime for the social work profession. (24 July 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Delivery of Services
LGA: Delivering local solutions for public library services: this guide for councillors sets out ways in which they can ensure their library service excels and meets the needs of their communities. (7 August 2017)
Welsh Government: Striking the right balance – Proposals for a Welsh Language Bill: seeks views on a range of proposals that aim to strike the right balance between promoting the Welsh language and regulating compliance with Welsh language duties. The proposals include: establishing a Welsh Language Commission to organise and coordinate work to promote the Welsh language across all parts of Wales; giving greater clarity for Welsh speakers as to which services bodies must provide in Welsh, and to work to increase the use of those services; and helping bodies develop their capacity to deliver services in Welsh. The consultation closes on 31 October 2017. (9 August 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Economic Development
DCLG: Evaluation of the European Regional Development Fund 2014 to 2020: the European Regional Development Fund (EDRF) programme is funding for projects that create jobs and supports local growth. All ERDF grant recipients are required to undertake a summative assessment. These documents provide the essential information needed to plan and undertake this assessment. (11 August 2017)
DCLG: £35 million of innovative employment schemes to benefit thousands of disadvantaged people: announces new schemes to be developed and delivered by six Combined Authorities, that will help people tackle long-term barriers to work and in-work progression. (1 August 2017)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
Education (Information About Children in Alternative Provision) (England) (Amendment) Regulations 2017 (SI 2017/807): these regulations, which come into force on 1 September 2017, amend SI 2007/1065 to require schools which are not state place funded but are providing education commissioned by the local authority to provide additional information about the pupils receiving this education. (31 July 2017)
DfE: SEND provision capital funding for pupils with EHC plans: special provision funding is for local authorities to create places for pupils with special educational needs and disabilities (SEND), and to improve facilities for them in mainstream and special schools, nurseries, colleges and other education providers. These documents set out how much special provision funding local authorities will receive from 2018 to 2020, and guidance on requirements to access the fund. (4 August 2017)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Employment
Dudley MBC v Willetts (Working Time Regulations) [2017] UKEAT 0334/16/3107 (EAT): the Council appealed against the Employment Tribunal's decision that payments received in respect of entirely voluntary overtime should be treated as forming part of a worker’s “normal remuneration” for the purpose of calculating holiday pay under Reg.13 of the Working Time Regulations 1998. The claimants were employed by the Council in a number of different roles. As well as having set contractual hours and a contractual right to overtime, they also volunteered to perform additional duties outwith their contracts of employment.
The EAT held, dismissing the appeal, that the Employment Tribunal had made no error of law in finding that remuneration linked to overtime work that was performed on a voluntary basis could be included in normal remuneration for calculating holiday pay. The exclusion as a matter of principle of payments for voluntary work which was normally undertaken would amount to an excessively narrow interpretation of normal remuneration that gave rise to the risk of fragmenting of pay into different components to minimise levels of holiday pay. It would result in a risk of a worker suffering a financial disadvantage that might deter him from exercising these rights contrary to the underlying objective of Article 7 of the Working Time Directive 2003/88. Payment for voluntary overtime that was normally worked was within the scope of Article 7. (31 July 2017)
See also our briefing: Holiday pay and voluntary overtime.
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Governance
LGA: Councillor workbook – Being an effective ward councillor: designed as a distance learning aid for local councillors, the workbook provides some pointers on how to develop a style and approach that members are comfortable with, and that enables them to be most effective in their day to day duties. (1 August 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Health and Safety
DCLG: Letter to local authority chief executives, following the Grenfell Tower fire: the Secretary of State has written to chief executives about identifying all residential tower blocks with Aluminium Composite Material (ACM) cladding. He has also written to residents with an update on the action being taken by the Government in response to the tragedy, along with details of available support and assistance. (11 August 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Health and Social Care
LGA: Better Care Fund Planning Requirements 2017-19 – Frequently Asked Questions: sets out answers to the most frequently asked questions relation to planning and delivering the Better Care Fund (BCF) for 2017-19. The answers are intended to support councils in local discussions and joint working with partners. (1 August 2017)
LGA: A personalised approach to quality assuring care and support: case study of Surrey CC's quality assurance team of 4.5 quality assurance managers who undertake monitoring visits to care homes, home care providers and supported living schemes. (26 July 2017)
If you wish to discuss any of the items noted in this section please contact David Owens.
Highways
DfT: Councils share £75 million for major road improvements: announces 19 projects across the country that will receive a share of £75m through the Highways Maintenance Challenge Fund. Local authorities were challenged to put forward schemes which could make a real difference to road users. Winning projects include junction improvements, repairs and resurfacing, flood resilience measures, bridge and viaduct refurbishment, and improved drainage. (1 August 2017)
Southwark LBC v Transport for London [2017] EWCA Civ 1220 (CA): the court held that the effect of the Greater London Authority Act 1999 and the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000 (SI 2000/1552) was to transfer to TfL only the surface of the highway and the "two top spits" of sub-soil, not the full freehold interest in the entirety of the land on which the highway ran. That was all that was needed to enable TfL to exercise its duties as highway authority, and was consistent with the common law meaning of "highway" as used in the Order and in statute. (4 August 2017)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Housing
DCLG: Funding boost for local authorities to transform local communities: DCLG, the Cabinet Office and LGA One Estate Programme have launched a £45m Land Release Fund to help local councils release some of their unused or surplus land for housing. This will help to meet the ambition to unlock enough council-owned land for at least 160,000 homes by 2020. Councils can now bid for up to £500,000 revenue funding for land remediation and small-scale infrastructure, which will help bring sites forward for housing that would not have otherwise been developed. Full details are in the prospectus. The closing date for Expressions of Interest is 18 August 2017; the final Services and Assets Delivery Plan and updated basic details form must be submitted by 3 November 2017. (1 August 2017)
R (Esposito) v Camden LBC (Unreported, Admin Ct): E applied for judicial review of the Council's decision to refuse to provide emergency accommodation pending the conclusion of an assessment as to the fire risk posed by the cladding used on the building she lived in, and sought an urgent interim injunction requiring them to accommodate her. E and her family lived on the third floor of a high rise tower block that was owned by the Council. Following a fire in Grenfell Tower, a London tower block that killed at least 80 people, local authorities reviewed the fire risk in all of their tower blocks with a particular focus on cladding and insulation. On the advice of the London Fire Brigade, the Council declared that E's block was unsafe and ordered all residents to evacuate. E moved into a hotel. After the measures suggested by the fire brigade to make the building safe had been completed, residents were asked to return. E refused to return until the results of further safety testing, recommended by the DCLG, had been completed and asked the Council to continue her temporary housing, which it refused to do.
The court held, refusing the application, that public sector landlords providing social housing were not in the same position as a commercial landlord. The number of people affected and the fact that they provided social housing was sufficient to make their decisions reviewable. The court must look at all the matters in the round. E had not made out a sufficient case that the Council had acted irrationally. The evacuation of the building was not done because of a failure of the cladding, but in response to advice from the fire brigade. The Council was justified in asking the tenants to return. There was no basis for an art.8 claim by virtue of the risk of fire or due to the cladding. (31 July 2017)
The judgment is available on Lawtel (password required).
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
IT
DCMS: Consultation on the Security of Network and Information Systems Directive: seeks views on the Government’s plans to implement the Security of Network and Information Systems Directive ("NIS Directive") that will help make sure UK infrastructure operators are prepared to deal with the increasing numbers of cyber threats. It will also cover other threats affecting IT, such as power failures, hardware failures and environmental hazards. This paper sets out the Government’s proposed transposition approach and asks a series of questions on a range of detailed policy issues relating to transposition. The proposals include fines of up to £17m or 4 per cent of global turnover for organisations who fail to implement effective cyber security measures. Operators will be required to develop a strategy and policies to understand and manage their risk; to implement security measures to prevent attacks or system failures, including measures to detect attacks, develop security monitoring, and to raise staff awareness and training; to report incidents as soon as they happen; and to have systems in place to ensure that they can recover quickly after any event, with the capability to respond and restore systems. The consultation closes on 30 September 2017. (8 August 2017)
If you wish to discuss any of the items noted in this section please contact Richard Lane.
Maladministration
LGSCO: Ombudsman releases complaints statistics for all local authorities: the Local Government and Social Care Ombudsman (LGSCO) has published details of the complaints it has received about all local councils in England in 2016-17. The greatest proportion of complaints were about Education and Children’s Services, followed by Adult Social Care, and Planning. Overall, the LGSCO was most likely to find fault in Adult Social Care cases (64% upheld), and least likely to find fault in complaints about Planning and Development (35% upheld). This year, the LGSCO made 3,562 recommendations to put things right. This included apologies, financial remedies (for example paying for care which should have been provided) and procedural changes to help improve services for others. (2 August 2017)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Powers and Duties
R (Muir) v Wandsworth LBC [2017] EWHC 1947 (Admin) (Admin Ct): M applied for judicial review of the Council's decision to grant a long lease of premises on Wandsworth Common to a private company, which intended to operate a private nursery for pre-school children on the site. The council owned the freehold of the land as successors in title under the Wandsworth Common Act 1871 and held it on a statutory trust under the Open Spaces Act 1906 "to allow, and with a view to, the enjoyment thereof by the public as an open space". The premises were used for many years as a café for users of the Common and also as residential accommodation for Common groundsmen, occupied under residential service tenancies. They were subject to significant restrictions under the Greater London Parks and Open Spaces Order 1967, including use as "indoor facilities for any form of recreation whatsoever". The premises became vacant and the council decided to offer them on the open market. The company was the highest bidder and the Council proposed to grant it a 15 year lease with planning permission to use the premises as a nursery / pre-school with a requirement to accept local authority funded children who otherwise met its admission criteria. M contended that the council did not have power to grant the lease. He also argued that the Council's officer did not have authority to make the decision.
The court held, granting the application, that the Council had underestimated the constraints on its powers to develop the Common. The grant of a lease to the company for 15 years would prevent any public use of the premises for a significant period of time, and this restriction on public access and use was contrary to the statutory trust arising under s.10 of the 1906 Act. The restrictions on access and use would also be contrary to the intended purpose and scope of the Act, as the nursery did not provide facilities for "public recreation". The provision of child care in a nursery setting did not come within the meaning of the term recreation in the 1967 Order. The Council was empowered by the 1967 Order to provide and maintain centres and other facilities the use of clubs, societies or organisations whose objects or activities were of a recreational, social or educational character, but, while "organisation" could have a wide meaning, applying the eiusdem generis principle of construction, it did not include limited companies who were operating a profit-making business. On the second ground, the court ruled that the decision was taken by the officer in accordance with the delegated authority conferred by the Council's Constitution and the Local Authorities (Functions and Responsibilities) (England) Regulations) 2000. (28 July 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Public Health
DH: Government response to the Health Select Committee's Inquiry into suicide prevention: responds to the Committee’s recommendations, published in December 2016, for improving delivery of the Cross-Government Suicide Prevention Strategy. It sets out the Government's support for local authorities to develop robust multi-agency suicide prevention plans and ensure their regular review and development. (31 July 2017)
LGA: Preventing drug related deaths: case studies on how councils and their health partners are tackling the rise in drug-related deaths. Deaths have increased sharply over the past five years and are now at their highest levels since records began. (7 August 2017)
LGA: Local Government support for health and wellbeing through the Arts and Culture: this briefing sets out some of the ways in which the arts and culture can help local government better support the health and wellbeing of its communities. It follows on from the All-Party Parliamentary Group on Arts, Health and Wellbeing (APPGAHW)'s report into the role of the arts and culture in health and wellbeing, Creative Health. (31 July 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Regulatory Services
DBEIS: Unlocking the potential of Primary Authority – Implementing the Enterprise Act 2016: Government response to consultation: sets out the Government’s response to the February 2017 consultation that sought views on draft regulations that include measures to ensure that Primary Authority can operate from 1 October 2017 when the scheme is extended and simplified by provisions in the Enterprise Act 2016. It also sought views on replacing the ‘categories’ system for defining the scope of partnerships with an approach where, by default, a partnership will cover all the regulatory functions of the local authority within scope of Primary Authority. The draft Co-ordination of Regulatory Enforcement Regulations 2017 have been amended in light of the responses and are expected to come into force on 1 October 2017. There is also draft revised Primary Authority Statutory Guidance. (2 August 2017)
Chancepixies Animal Welfare v North Kesteven DC [2017] EWHC 1927 (Admin) (Admin Ct): CAW, an animal welfare charity, applied for judicial review of the Council's decision to grant a dog breeding licence under s.1 of the Breeding of Dogs Act 1973 to a commercial breeding establishment LRP. CAW argued that the Council, when determining whether to grant a licence to breed dogs, was required by s.1(4) of the 1973 Act to consider LRP's compliance with the requirements of the Animal Welfare Act 2006 and the Code of Practice for the Welfare of Dogs. It submitted that the vet's report failed to consider the matters in section 3, 4 and 5 of the Code and the officer's report failed to address the serious question in a previous report as to the arrangements for exercising dogs at the premises.
The court held, refusing the application, that under s.1(4) of the 1973 Act, the Council was required to have regard to the need to secure the nine listed qualities, which the report did with some care and some detail. However, satisfaction of the nine requirements did not guarantee the grant of a licence as the local authority had a discretion to withhold a licence on other grounds. The question whether a licence should be granted to LRP was one for the Council and the court's role was limited to considering whether the Council had directed itself properly on the law and also whether it had taken into consideration those matters which it ought to have taken into account (and excluded those which it ought not). The test was whether the report's author was alive to the general requirements of the Code and looked for evidence that the Code's broad requirements were being met. Consideration of every individual bullet point within the Code was not necessarily required before the grant of a licence and the deficiencies pointed out here were not sufficient to make good a challenge to grant of the licence. It was not Wednesbury unreasonable for the decision maker to make his decision on the basis of the report from his officers and the vet who visited the premises for the purposes of producing the s.1(2) report. (26 July 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
