Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council [2023]
Read More11/09/2017
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:
Business Rates
DCLG: Invitation to local authorities in England to pilot 100% Business Rates Retention in 2018/19 and to pioneer new pooling and tier-split models: DCLG is inviting local authorities to submit proposals to pilot 100% business rates retention in 2018/19. These will run alongside the five pilots which have been in operation since 1 April 2017 (Greater Manchester, Liverpool City Region, West Midlands, Cornwall and West of England). This prospectus sets out the application process and the criteria against which applications will be assessed. Findings from this tranche of pilots will then help develop options for local authorities to retain more of the money they raise in the future. Proposals for new pilots must be submitted by 27 October 2017. There is also supplementary information for all pools of local authorities and all individual (non-pooling) authorities in England on the implications that the 2018/19 pilot programme may have on their current or future pooling arrangements. (1 September 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Children's Services
DfE: Statutory Direction to Croydon Council in relation to children’s services under Section 497a(4b) of the Education Act 1996: the Secretary of State has issued a Direction requiring Croydon LBC to cooperate with Eleanor Brazil who has been appointed as Commissioner for Children’s Services in Croydon in accordance the terms of reference set out in the Annex to the Direction. The Direction follows the publication of a report by Ofsted which judged the overall effectiveness of Croydon’s children’s social care services as inadequate. (4 September 2017)
Welsh Government: Social Services and Well-being (Wales) Act 2014 – Amendments to the regulations and Code of Practice in respect of secure accommodation and placements of children out of area: seeks views on changes to the Care Planning, Placement and Case Review (Wales) Regulations 2015, the Secure Accommodation (Wales) Regulations 2015, and the Part 6 Code of Practice on Looked After and Accommodated Children regarding local authorities’ duties in relation to cross-border placements in secure accommodation, and other out of area placements for looked after children. The changes cover secure placements in Scotland and notification of emergency out of area placements. The consultation closes on 27 November 2017. (4 September 2017)
Welsh Government: Special Guardianship Orders – Amending regulations and Code of Practice: seeks views on amendments to the Special Guardianship (Wales) Regulations 2005 and a new Code of Practice for local authorities. The amendments cover: the assessment of potential special guardians; provision of support to former looked after children; and entitlement to assessment for special guardianship support services. The Code of Practice covers local authority functions in relation to special guardianship orders. The consultation closes on 27 November 2017. (4 September 2017)
DfE: Adviser appointed to boost local support for care leavers: announces that Mark Riddell MBE has been appointed as the National Implementation Adviser for care leavers. He will work closely with local authorities as they drive forward the new duties introduced through the Children and Social Work Act 2017. His role includes helping councils to develop a stronger local offer of support for care leavers, offering Personal Adviser services for all care leavers up to age 25 and delivering on their special responsibilities as a corporate parent. (4 September 2017)
DfE: Early rollout of 30 hours free childcare – Evaluation: the national rollout of the 30 hours' free childcare policy will offer all 3- and 4-year-olds with working parents 30 hours of free childcare for 38 weeks each year. This report sets out the main findings from the evaluation and recommendations to support the policy. (31 August 2017)
Re S (A Child) (CA): in this case, the court considered which local authority should have care of a new-born baby pursuant to s.31(8) of the Children Act 1989. The court held that the judge had erred in deciding that the appellant local authority was the designated authority for any care order in respect of the baby instead of the respondent local authority. A new-born baby who had never been physically present in the area of a local authority could not be ordinarily resident in that area. The judgment is available on Lawtel (password required). (31 August 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Economic Development
DCLG: £40 million to create jobs and boost visitors to the Great British Coast: announces the fifth round of the Coastal Communities Fund for 2019 to 2021 that will provide at least £40m to help coastal areas in England further transform their economies and boost jobs in their local area. It will be open for applications in early 2018. (4 September 2017)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
DfE: The constitution of governing bodies of maintained schools: updated statutory guidance for governing bodies of maintained schools and local authorities in England. It explains the arrangements for the constitution of governing bodies of maintained schools constituted under the School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034). (29 August 2017)
DfE: Primary school accountability in 2017 – A technical guide for primary maintained schools, academies and free schools: this guide explains more about the primary accountability measures, including how a school’s progress scores are calculated. It has been updated with information about changes to the primary progress methodology in 2017 for pupils below the standard of the test. Schools receive their own provisional progress scores from 31 August. Annex B of this guidance provides the provisional national distribution of schools’ progress scores in 2017 to help schools interpret and contextualise their own provisional scores. (31 August 2017)
DfE: Implementing your school's approach to pay – Guidance for maintained schools and local authorities: revised guidance to help schools and governing bodies develop their approach to teachers' and school leaders' pay. The document has been updated to reflect changes in school teachers’ pay and conditions in 2017. (6 September 2017)
DfE: DfE grant funding agreement – Terms and conditions: updated standard terms and conditions for any discretionary grants that DfE awards to external organisations. (30 August 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Emergency Planning
LGA: A councillor's guide to civil emergencies: integrated emergency management is an holistic approach to preventing and managing emergencies. Civil emergencies take many forms and advance planning and preparation is vital. This guide sets out councils’ legal obligations and their role in the management and coordination of civil emergencies, the role of leaders and portfolio holders, and also looks at the wider role of councillors in a civil emergency. (15 August 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
European Union
LGA: EU (Withdrawal) Bill Second Reading, House of Commons: this briefing sets out key concerns about the Bill ahead of its 2nd Reading in the Commons. It highlights the likely impact of the Bill on local government and public services. (31 August 2017)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Fire and Rescue Authorities
LGA: Fire and rescue services in England – A guide for police and crime panel members: the Policing and Crime Act 2017 introduces a statutory duty for police, fire and ambulance services to collaborate. It also creates two distinct routes enabling PCCs to have a direct role in the governance of fire and rescue services – either by becoming one of two forms of new ‘PCC-style’ fire authority, or by being allocated a voting seat on existing fire authorities. While this guide has been prepared as an early step in the process of supporting PCP members to build their knowledge of the fire and rescue service, it will also be of use to others who have an interest in developing their knowledge of how this essential public service is structured and governed, as well as how it goes about delivering services to communities. (8 September 2017)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Health and Social Care
LGA: Deferred payment scheme for funding older people's care: this briefing summarises the key issues regarding deferred payment agreements (DPAs) ahead of a debate in the Lords. DPAs are arrangements between an individual and a council that enables the individual to use the value of their home to help pay for their care home costs. Although the Government has presented DPAs as a ‘universal scheme’ under the Care Act, they are only available if a person meets eligibility criteria. (30 August 2017)
R (Davey) v Oxfordshire CC [2017] EWCA Civ 1308 (CA): D, who was severely disabled, appealed against the refusal of his application for judicial review of the Council's decision to reduce his personal budget and/or to revise his care and support plan under to the Care Act 2014. The effect of this decision was to reduce the personal budget for D's care from £1,651pw to £950pw. The Council said that D could spend more time alone without the assistance of his visiting personal assistants and could reduce their rates of pay. D contended that the reduction breached the Council's obligations under the 2014 Act and/or were Wednesbury unreasonable. The judge ruled that the updated needs assessment had resulted in a substantial reduction in the personal budget D had previously enjoyed, which might impose unwelcome change or even strictures upon D, but that did not mean that the process had been unlawful. The Council's approach of seeking to develop independence and reducing anxiety by providing for D to spend more time alone was not unlawful. There was no legal error which warranted interfering with the Council's decision
The court held, dismissing D's appeal, that the Council had not acted unlawfully. Whilst having great sympathy for D, his family and carers for their difficult situation that had resulted from the substantial reduction in the level of D's personal budget, the court agreed with the judge's finding that the very significant reduction in D's personal budget had been reached at the end of a lawful process. (1 September 2017)
Bevan Brittan: Court of Protection seminars: in October and November, our specialist Court of Protection team is hosting practical update sessions in Bristol, Birmingham, London and Leeds. These sessions will focus on practical issues that practitioners, commissioners and providers encounter in matters engaging the Court of Protection, covering relevant legislation, guidance and case law and their impact on managing incapable patients. They will offer guidance on the sort of problems that are faced by front-line practitioners and service planners. The sessions are aimed at all those working in organisations responsible for the care of vulnerable or incapable people both as care providers or commissioners. To book, please click on this link. Please be aware that places for this seminar are limited; where we are heavily over-subscribed we will limit places to one or two people per organisation.
If you wish to discuss any of the items noted in this section please contact David Owens.
Highways
DfT: Road works – The future of lane rental: seeks views on the future of lane rental schemes that were brought in under s.74A of the New Roads and Street Works Act 1991 and the Street Works (Charges for Occupation of the Highway) (England) Regulations 2012 (SI 2012/425). Lane rental schemes allow local authorities to charge utility companies by the hour to carry out works on selected routes, thus encouraging them to avoid busy roads and peak times, and incentivising them to join together when they do need to dig up congested routes. The proposals set out options for rolling out the current pioneer schemes in London and Kent to other local authority areas in England. The consultation closes on 28 October 2017.
The Government is also consulting on Lane rental schemes for roadworks – Removal of sunset clause which will allow the pioneer lane rental schemes in London and Kent to continue beyond March 2019 until a longer term solution is agreed and implemented. This consultation closes on 16 September 2017. (2 September 2017)
Sheffield City Council v Fairhall [2017] EWHC 2121 (QB) (QBD): the Council sought an injunction to restrain F and other protestors from entering safety zones erected around trees that the Council's contractors were felling in performance of their highways maintenance contract with the Council. The application followed previous judicial review proceedings concerning the council's decision to fell the trees (see R (Dillner) v Sheffield City Council; Amey Hallam Highways Ltd (Interested Party) [2016] EWHC 945 (Admin)). The Council contended that F's action was not the exercise of a peaceful right to protest but unlawful direct action whose intended and actual effect was unlawfully to prevent the Council from carrying out its statutory powers and duties with regard to highway maintenance; it also involved conduct which was both tortious and a breach of the criminal law. F argued that: the felling of healthy trees was inappropriate, unnecessary and unjustified; the decisions of the Council in entering into the PFI contract and in response to recommendations of the Independent Tree Panel were wrong; they were justified in seeking to stop such felling; and the direct action was lawful.
The court held, granting the application, that Dillner had decided that a decision by the Council to remove a tree for the purpose of highway maintenance was lawful. The removal of damaging and discriminatory trees formed part of the Council's highway maintenance programme and so constituted the lawful exercise by the Council of its statutory powers and duties under the Highways Act 1980. It was for the Council as the highway authority to determine how highway maintenance should be carried out. F's direct action was intended to prevent and had prevented the lawful exercise of those powers and duties. Once it had been determined that the felling of trees was undertaken in the execution of the Council's duty to maintain the highway under s.41 of the 1980 Act, then the direct action constituted a wilful obstruction of persons acting in the execution of the Act and thus constituted the tort of trespass and a criminal offence under s.303 of the Highways Act 1980. Although F's rights under Arts.10 & 11 ECHR were engaged, the Council's restriction was justified. The lawful decision of the democratically elected council as to where the public interest lay had to prevail over the views of individual protesters who were not entitled to prevent the Council from giving effect to its lawful decisions. The Council was entitled to an injunction to restrain the commission of a trespass and also to take action under s.222 LGA 1972 in support of the criminal law in circumstances where F's conduct would continue unless restrained by injunction.
The court also rejected F's application for disclosure in unredacted form of the Council's highways maintenance PFI contract. Disclosure of the contract was unnecessary for resolution of the issues in these proceedings. A document did not become relevant and disclosable just because a party chose to make far-fetched allegations about it. (15 August 2017)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Housing
LGA: Housing our ageing population – Learning from councils meeting the housing need for our ageing population: the case studies in this report demonstrate how nine councils are playing a significant place-making role in shaping the current and future supply of housing for an ageing population in their areas. The LGA's 2016 Housing Commission Final Report recognised that there is a distinct and urgent need to better provide a range of housing options to meet the wide variety of housing circumstances, aspirations and needs of people as they age. This report sets out in more detail what is required to meet the housing needs and aspirations of our ageing population drawing on work by councils that already have a clear vision and/or are seeking to achieve this objective. (8 September 2017)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Police
LGA: Policing and Crime Act 2017 – Implications for police and crime panels in England: the Policing and Crime Act 2017 amends the Fire and Rescue Services Act 2004 to enable Police and Crime Commissioners to take on governance of their local fire and rescue service through the creation of new PCC-style Fire and Rescue Authorities. The Act also defines opportunities for closer working across emergency services through a new statutory duty for blue light services collaboration, and makes provision for PCCs to be represented on their local FRA. This briefing note summarises the provisions of the PCA 2017 that impact on the work of Police and Crime Panels. (21 August 2017)
See also the LGA's guide for police and crime panel members to fire and rescue services in England, noted above.
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Regulatory Services
LGA: Councillor handbook – Taxi and PHV licensing: elected members are responsible for ensuring that the public travel safely and receive a good level of service, and that their licensing systems attract good, reputable drivers. This updated handbook helps members understand some of the key issues concerning taxi and PHV licensing. It is intended to be used as a starting point to explain some of the difficulties that can arise in this complex area of business regulation. The LGA has also developed an example taxi and private hire vehicle (PHV) licensing criminal convictions policy to assist licensing authorities in developing their own policies on the criteria to be taken into account when determining whether or not an applicant or an existing licence holder is a fit and proper person to hold a hackney carriage and/or private hire vehicle licence. The timescales suggested within this template are intended as guidelines only for licensing authorities and are not statutory.
The LGA is also calling for taxi and private hire legislation to be strengthened to improve passenger safety in light of the proliferation of app-based taxi and PHV companies and increased cross-border hiring. (25 August 2017)
DCLG: Independent Review of Building Regulations and Fire Safety – Terms of reference: the Government has published the terms of reference for the independent Review of Building Regulations and Fire Safety that was commissioned following the Grenfell Tower fire tragedy. The Review, led by Dame Judith Hackitt, will urgently assess the effectiveness of current building and fire safety regulations and related compliance and enforcement issues, with a focus on multi-occupancy high rise residential buildings. Its two key priorities are to develop a more robust regulatory system for the future and provide further assurance to residents that the buildings they live in are safe and remain safe. While the Review will cover the regulatory system for all buildings, it will have a specific focus on multi-occupancy high rise residential buildings. The Review will submit an interim report in Autumn 2017 and a final report in Spring 2018. (30 August 2017)
DCLG: Letter to local authority chief executives identifying all residential tower blocks with ACM cladding: letter from Tamara Finkelstein, Director General for the Building Safety Programme, on identifying all residential tower blocks with Aluminium Composite Material (ACM) cladding and how this information should be collected and provided to DCLG. It highlights how, although it is a building owner’s responsibility to ensure their buildings are safe, local housing authorities have a statutory duty to keep local housing conditions under review. (5 September 2017)
Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017 (SI 2017/859 (C.72)): these regulations bring provisions in the 2016 Act into force on 1 September 2017, relating to oversight of investigatory powers by the Investigatory Powers Commissioner and the other Judicial Commissioners (the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Chief Surveillance Commissioner and other Surveillance Commissioners and the Scottish Chief Surveillance Commissioner and other Scottish Surveillance Commissioners). (29 August 2017)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Traffic and Transport
DfT: Bus Services Act 2017 – Response to the consultation on draft regulations and guidance: sets out the Government’s response to the March consultation on draft regulations and guidance on franchising and Enhanced Partnerships under the Bus Services Act 2017. It also sets proposed changes to the draft regulations and guidance in light of the responses and the Government's next steps. (5 September 2017)
DfT: Cleaner journeys as government commits £11 million to greener buses: announces the successful bidders that have been awarded funding under the Government’s Low Emission Bus Scheme. The local authorities and bus companies in Bristol, York, Brighton, Surrey, Denbighshire and Wiltshire will use the funding to buy new electric and gas buses, and to install stations to fuel or charge them. The Government will publish plans for a second round of the Scheme later this year. (28 August 2017)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
