11/06/2018
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
Hemsworth Town Council v Information Commissioner (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017/0120 (GRC): the Town Council appealed against the Information Commissioner's ruling that it should disclose a contract relating to the sale of a sports complex, which it had entered into more five years previously. The Town Council had refused FOI requests from local residents for the disclosure the sale contract between the Council and the developer, claiming that the documents were exempt from disclosure under s.43(2) FOIA 2000 (commercial interests), and this decision was upheld in review. The Information Commissioner decided that the Environmental Information Regulations, rather than the FOIA, applied but that the Town Council had failed to discharge the burden on it of establishing that reg.12(5)(e) EIR (legitimate economic interests) was engaged as it had failed to show that, on the balance of probabilities, adverse effects would accrue.
The Tribunal held, dismissing the Town Council's appeal, that reg.12(5)(e) was not engaged. The correct legal test was that disclosure would, not merely might, adversely affect legitimate interests, but the Council had failed to explain how disclosure would prejudice the EIA judicial review or renegotiation of the contract. Even if reg.12(5)(e) were engaged, the public interest would support disclosure. The Tribunal expressed some sympathy with the Council as it appeared to have been subjected to a sustained and prolonged barrage of requests for information and explanations which could easily have stretched its limited resources. As well as these requests, it had had to contend with three judicial reviews arising out of or touching upon the contract. However, the Council has not helped itself by failing – despite numerous prompts by the Commissioner and the requesters - to address the legal issues raised by the two requests and, in particular, to show how disclosure would affect either its or the developer’s legitimate economic interests. (24 May 2018)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
DHSC: Carers action plan 2018 to 2020 – Supporting carers today: sets out the cross-government programme of work to support carers over the next two years, ahead of the forthcoming Social Care Green Paper which will set out long-term sustainable solutions for the social care system. It is structured around five themes: Services and systems that work for carers; Employment and financial wellbeing; Supporting young carers; Recognising and supporting carers in the wider community and society; and Building research and evidence to improve outcomes for carers. The measures include:
• a new scheme to improve employment support for carers, promoting best practice for flexible working, to enable carers to continue to work alongside their caring role;
• a new £500,000 Carer Innovations Fund to promote creative and innovative ways to support carers; and
• funding for a review of best practice in identification of young carers and access to support.
The Green Paper will also address other areas of importance to carers, including improving the quality of care, increasing personalisation and ensuring a sustainable financial system for care. (5 June 2018)
DHSC: The revision of the Relative Needs Formulae for adult social care funding and new allocation formulae for funding Care Act reforms: social care funding is allocated to local authorities using a formula, the Adult Social Care Relative Needs Formulae (ASC RNF), to help account for differences in local funding requirements. The University of Kent was commissioned to revise the current ASC RNF to account for differences in eligible social care need between local authorities; and to develop new needs-based formulae that will determine funding allocations to local authorities for recent reforms of Government social care policy, as laid out in the Care Act 2014 – the cap on lifetime care costs and the new extended financial means test. The research report proposes a new formula to be used within the Local Government Finance Settlement, which will be considered as part of the Government’s review of local authorities’ relative needs and resources. (6 June 2018)
LGA: How should we pay for social care in the long term?: this is the third think piece in the LGA's series 'Towards a sustainable adult social care and support system'. It comprises a collection of articles by sector experts who offer their views on how to fund adult social care and support for the long-term. They identify the key questions that need to be considered, principles that should underpin the debate, and what some of the solutions might look like. (6 June 2018)
Draft Social Workers Regulations 2018: Part 2 of the Children and Social Work Act 2017 establishes Social Work England (SWE) as the new regulator of social workers in England, taking over from the Health and Care Professions Council. These regulations, once in force, support the implementation of SWE by setting out the detail of the new regulatory framework. They set out the detail of how SWE will perform its core functions of keeping a register of social workers in England, approving education and training for social workers (including for certain mental health professionals) and making arrangements for the operation of the fitness to practise system. They also replicate criminal offences under the existing regime. (5 June 2018)
Welsh Government: Adult Placement services regulations: seeks views on draft Adult Placements Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019 that will place requirements on independent and local authority adult placement scheme providers, principally under ss.27 and 28 of the Regulation and Inspection of Social Care (Wales) Act 2016, from April 2019. There is also draft statutory guidance for service providers and responsible individuals of adult placement services in meeting service standards, under s.29 of the 2016 Act. This forms part of phase 3 of implementing the Regulation and Inspection of Social Care (Wales) Act 2016. The consultation closes on 16 August 2018. (24 May 2018)
If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.
Anti Social Behaviour
LGA: Getting Public Space Protection Orders right: presentations from an LGA event on the use of PSPOs to tackle anti social behaviour such as alcohol and drug use, begging and dog fouling. (5 June 2018)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Children's Services
Welsh Government: Advocacy services regulations: seeks views on draft Regulated Advocacy Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019 and their accompanying statutory guidance. The regulations will place requirements on service providers and responsible individuals of advocacy services arranged by local authorities under their duty to assist children, looked after children and certain types of care leavers in making representation about their needs for care and support. The consultation closes on 16 August 2018. (24 May 2018)
Welsh Government: Fostering services regulations – Implementing a new regulatory framework: seeks views on draft Fostering Services (Fostering Services Providers and Responsible Individuals) (Wales) Regulations 2019 that will replace the Fostering Services (Wales) Regulations 2003. There is also accompanying statutory guidance (for independent fostering service providers) and Code of Practice (for local authority fostering services) that set and explain the service standards for these providers from April 2019. The consultation closes on 16 August 2018. (24 May 2018)
LGiU: Viewpoint – A council’s duty to care leavers: this briefing by Tom Redfearn from the Children’s Society explains councils' corporate parenting responsibilities under the Children and Social Work Act 2017. All unitary and top tier councils are now required to produce and publish a local offer for care leavers, while in two-tier areas, district and borough councils are required to contribute to this local offer. (30 May 2018)
Restriction on the Preparation of Adoption Reports (Amendment) Regulations 2018 (SI 2018/674): these regulations, which come into force on 5 June 2018, amend the description in SI 2005/1711 of persons prescribed for the purposes of s.94(1) of the Adoption and Children Act 2002 by amending the definition of “social worker” and the description of persons prescribed by virtue of participating in specified courses. They also update references to the English and Welsh social work regulators in light of the Health and Social Care Act 2012 which requires that all social workers in England are registered with the HCPC and s.80 of the Regulation and Inspection of Social Care (Wales) Act 2016, which makes provision for a register of social workers in Wales. (4 June 2018)
If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.
Combined Authorities
Draft Business Rate Supplements Functions Orders 2018: three draft Orders have been laid that confer business rate supplements functions on three mayoral combined authorities in relation to their respective areas: Cambridgeshire & Peterborough Combined Authority, Liverpool City Region Combined Authority, and West of England Combined Authority. The Orders provide that each Combined Authority is to have in relation to its area functions corresponding to the functions that the GLA has under the Business Rates Supplement Act 2009 to levy a supplement on business rates to raise money for expenditure on a project which will promote economic development in its area. The functions are exercisable only by the Mayor, who may be assisted by members or officers of the authority in the exercise of the functions. The general power of the of the Combined Authority under s.113A LDEDC Act 2009 is conferred on the Mayor for the purposes of those functions. (5 June 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Communities
DCMS: Exemplar documents and templates for community managed libraries: these examples of documents and templates have been provided by library services and community managed libraries for use with the Community Managed Libraries good practice toolkit. They include sample agreements, health and safety guidance, and volunteer recruitment documents. (5 June 2018)
MHCLG: £19 million funding for councils to boost integration: announces funding from the Controlling Migration Fund to help ease pressures on local services resulting from recent migration. It includes £1.75m to help new refugees into work and integrate into their new communities after their asylum decision is made and also £1.1m for six councils to support victims of modern slavery to link up with local services when they leave central government-funded support. (8 June 2018)
If you wish to discuss any of the items noted in this section please contact Frances Woodhead.
Delivery of Services
PwC: Local state we're in – Annual local government survey 2018: the latest edition of PwC's survey of local authority chief executives and leaders across the UK shows that while councils have coped well in the face of continuing austerity and the uncertainty of Brexit, there are now real fears of failure looking ahead. There is a sense that, while there has long been a 'cliff edge' approaching for council finances, expectations of crisis and failure are close to a tipping point. However, with every threat comes an opportunity – digital disruption, Artificial Intelligence (AI) and robotics have the potential to transform local public services even if they equally also pose threats such as from cyber attacks. In response, councils need not only greater organisational resilience and agility, but also enhanced capabilities to exploit the potential of data and analytics and a focus on partnership working in order to deliver place based growth and public service reform. (6 June 2018)
DDCMS: Partnerships for better public services: this report looks at Public Service Mutuals, which are an increasingly important strand of the public service reform agenda. It explores the need to partner, the benefits and challenges, and recommends ways to maximise the potential for partnerships. It states that the advantages of Mutuals are much needed during a time when public services face staff shortages, funding constraints and Brexit uncertainty. In practice, as well as having key benefits, Mutuals face a number of systemic challenges that can be managed and mitigated against with the right support. Forming strategic partnerships with other organisations can offer Mutuals new routes to delivering innovative and cost-effective solutions to the public. Off the back of this report, the Government is supporting a pilot programme to support a small number of Mutuals to form partnerships, and will evaluate the effect of this on their sustainability. (29 May 2018)
HC Work and Pensions Committee: "Semi-professional, part-time" system representing taxpayers' interests in major public contracts needs "urgent" review: the Chairs of the joint Carillion inquiry have written to David Lidington, Minister for the Cabinet Office, with a series of questions over the way that the Government carried out its risk assessments regarding the massive public contracts Carillion was engaged in prior to its collapse. They call for an urgent review the role of the Crown Representatives to ensure that issues with other strategic suppliers can be spotted and dealt with at an earlier stage. (29 May 2018)
LGA: A councillor's workbook on the commissioning of services: this workbook pulls together resources from the LGA's Commissioning Academy programme which councillors can use to inform and guide their own commissioning challenges. It has been designed as a distance learning aid for local councillors and is intended to provide councillors with insight and assistance with the key skills which will help them to be most effective in their role. (5 June 2018)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Education
DfE: Education Secretary issues call to arms for school governors: the Education Secretary has joined with the Institute of Directors to call on more than 30,000 leading British businesses to encourage their employees to lend their expertise and commitment in the running of schools and colleges by becoming a school governor or academy trustee. He has also set out measures to make Academy trusts more accountable for the money they spend to prevent excessive salaries and unjustified contracts to family and friends. (9 June 2018)
DfE: Multi-million pound investment in state of the art facilities for children with special educational needs: announces that councils will receive a share of a £50million funding boost to create additional school places and state of the art facilities for children with special educational needs and disabilities (SEND). In addition, the Government has provided £680m to create 40,000 more good school places in primary and secondary schools. (29 May 2018)
DfE: Virtual school heads – Section 31 grant determination letter: the Children and Social Work Act 2017 amended the Children Act 1989 to introduce a new duty on local authorities to promote the education of certain previously looked-after children, including appointing an officer (the "Virtual School Head") to discharge this duty through the provision of information and advice to relevant parties supporting the education of those children. The duty comes into force on 1 September 2018. This letter to local authorities sets out the details of a grant to help local authorities in England meet this new duty. It includes details of the amount of funding awarded to each local authority for 2018/19. (5 June 2018)
Education (Pupil Information) (England) (Amendment) Regulations 2018 (SI 2018/688): these regulations, which come into force on 1 September 2018, amend SI 2005/1437 regarding the information to be included in the head teacher’s report to parents of pupils with special educational needs, and in these pupils' common transfer file. (7 June 2018)
If you wish to discuss any of the items noted in this section please contact Rosie Tabrizi.
Elections
R (Jarvis) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1259 (Admin) (Admin Ct): J, an MP, applied to strike down the Combined Authorities (Mayoral Elections) Order 2017 (SI 2017/67) which governed combined authority mayoral elections. The Order included a requirement for mayoral candidates to give their home address in full in their nomination papers, and the Returning Officer had to publish a statement that showed the names, addresses and descriptions of the persons nominated. This requirement did not apply where the mayor was to exercise Police and Crime Commissioner functions. J intended to stand as a Labour Party candidate in a mayoral election but he did not wish to publish his home address as he had been the subject of death threats and considered that publication would endanger his life, or that of members of his family. The Returning Officer informed J that the address would have to be provided. J applied for judicial review, contending that the Order imposing the requirement was irrational or otherwise ultra vires the enabling legislation, and that it breached J’s rights under Art.2 ECHR as publication would endanger his life.
The court held, dismissing the application, that Parliament had decided, in respect of mayoral elections, that there should be publication of addresses, and that requirement was not irrational. To establish irrationality, it would have to be shown that the imposition of the requirement to publish addresses was something that no reasonable Secretary of State, acting in accordance with his powers, would do. It would be nigh on impossible to cross that high threshold, given the long history of almost 150 years of requiring candidates to publish their home addresses in order to stand for elections. There would have to be a very strong basis for suggesting that what Parliament had decreed as necessary for so long was now irrational. The exception in respect of those with PCC functions appeared to be perfectly rational and explicable as such persons would be faced with the risk of retaliation or retribution for their actions in a way which other classes generally would not be. The requirement did not impose an obligation on the State in the circumstances of this case to take measures to secure the right to life, and the particular form in which the Order existed does not give rise to any real or immediate risk to life which would require that provision either to be read down or struck out. While the death threats were very real and had been taken seriously by the police, they were about a year old and so did not satisfy the ‘real and immediate risk’ test for determining whether the Art.2 rights were engaged.
The court also ruled that the claim was considerably out of time and permission would have been refused for that reason alone. There was an unusually high degree of obligation in election cases to act as promptly as possible. Given that the timetables for elections were established well in advance, there was no good reason why the claim could not have been brought far earlier. (6 April 2018)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Employment and Pensions
R (The Fire Brigades Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) (Admin Ct): the trade union FBU applied for judicial review of the FRA's "Close Proximity Crewing" (CPC) shift pattern at four fire stations in South Yorkshire. The shift pattern involved periods during a working week of 96 hours of continuous duty, other than during brief respite periods that followed if a firefighter was called out at night between midnight and 7am or 8am. The FBU contended that the CPC shift pattern was unlawful as it could not operate without the South Yorkshire Fire & Rescue Service breaching its obligations as the employer of firefighters under regs.6 and 10 of the Working Time Regulations 1998. The FRA disagreed, arguing that: the CPC shift system was not unlawful; the FBU should not be permitted to interfere with the exercise by the Authority of its statutory core functions; the claim was long out of time; the FBU had adequate alternative remedies; and any relief would undermine public safety, would cause substantial hardship to firefighters wishing to work the CPC shift system and would be detrimental to good administration.
The court held, allowing the application, that the effect that the FRA's CPC shift system was contrary to the rights of firefighters under reg.10 of the Regulations who were employed by the Service and worked that shift system. The objective of the Working Time Directive, which was transposed into domestic law by the Regulations, was to protect the health and safety of workers by placing limits on their working time, subject to permitted derogations and exceptions. It was clear that those who worked CPC shifts were "night workers" doing "night work" for the purposes of Reg.6. There was no provision for individual opt-out from Reg.6 from each firefighter who volunteered to work CPC shifts and the regulation applied unless modified or disapplied by a collective or workforce agreement; there was no such collective agreement relating to CPC in South Yorkshire which could affect the applicability of Reg.6. It was clear that where CPC shifts were worked, the limit of eight hours was exceeded. The fact that on the night shift the firefighters might be asleep or relaxing at the fire station did not mean they were not on "working time". The CPC system was designed, calculated and intended to require those taking part in it to spend many 24 hour periods during which more than eight hours would be spent on working time, so their normal hours of work in a reference period applicable in their case exceeded eight hours for each 24 hour period. The brief respite afforded to firefighters following post-midnight call outs at CPC fire stations did not come near to satisfying the requirement under Reg.24 to provide "compensatory rest" periods as they were not a complete break from the work environment.
The court would not grant any relief for the breach of Reg.6, as the effect of that would be to declare the Authority's conduct (or the Service's conduct) criminal, which it was agreed was not appropriate. Regulation 10, however, which dealt with daily rest breaks as distinct from rest periods for night workers, did not engage the criminal law but an affected employee could complain to an employment tribunal and there obtain a declaration and compensation. The CPC system could not operate lawfully in compliance with Reg.10 and the FRA's breach was blatant.
The court was being asked for pragmatic reasons to turn a blind eye to the breach of law: the FRA argued that CPC was popular with some firefighters; it was economic; it was voluntary, in a sense; it had not led to accidents; it was subject to mitigation measures to protect against fatigue; it might promote public safety; it was confined to low incidence fire stations; and it could be validated by a collective agreement. Those points mitigate the harm done to the public interest by breach of the law but they did not provide an escape from the proposition that CPC in the form used in South Yorkshire did not and could not operate in accordance with the Regulations. The court appreciated that the FRA was doing its best to promote public safety and cope with severe budget cuts and that the grant of relief might cause disruption to individuals; however, the court would not refuse relief where there was a conscious decision to commit a continuing and systematic breach of the law. One could not perform one legal duty by breaching another. (25 May 2018)
R (Palestine Solidarity Campaign Ltd) v Secretary of State for Communities and Local Government [2018] EWCA Civ 1284 (CA): this case concerned the lawfulness of passages in statutory guidance relating to the investment strategy of LGPS administering authorities that administering authorities "should not pursue policies that are contrary to UK foreign policy or UK defence policy". The Guidance on Preparing and Maintaining an Investment Strategy Statement, issued under the Public Service Pensions Act 2013 and the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016, stated that the use of pension policies "to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries" was inappropriate, "other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government". The claimants argued that this guidance limited their ability to campaign around the investment of local government pension funds affecting the Palestinian people and the Occupied Territories. They also contended that the relevant part of the Guidance was contrary to Art.18 of Directive 2003/41 on the activities and supervision of institutions for occupational retirement provision (the IORP Directive). The Administrative Court held that the passages were unlawful as the powers conferred by the legislation could be exercised only for "pensions purposes" and the Secretary of State had not acted for a pensions purpose in including those passages in the Guidance.
The court held, allowing the Secretary of State's appeal, that the relevant part of the Guidance was not issued for an unauthorised purpose, and it fell within the powers conferred by the legislation. The 2013 Act conferred a broad discretion upon the Secretary of State to make regulations and to give guidance regarding the administration and management of public service pension schemes. That power had to be exercised so as to promote the policy and objects of the legislation but the discretion conferred was wide, as was the range of considerations that might in principle be taken into account in its exercise. The judge's analysis of "purpose" was unduly narrow – in giving guidance as to the extent to which non-financial considerations might be taken into account in an authority's investment strategy, the Secretary of State was acting for an obvious pensions purpose; the fact that he took into account considerations of foreign policy and defence policy in formulating the relevant part of the Guidance did not convert it from a pensions purpose into a non-pensions purpose. In considering whether the relevant part of the Guidance fell within the scope of the 2013 Act and the 2016 Regulations, the question was whether the legislation permitted wider considerations of public interest to be taken into account when formulating guidance to administering authorities as to their investment strategy. Given the framework nature of the statute and the broad discretion it gave to the Secretary of State as to the making of regulations and the giving of guidance, there was no reason why it should not be so read.
The court also ruled that the Guidance did not infringe the prohibition in Art.18(4) of the IORP Directive on subjecting an institution's investment decisions to any kind of prior approval or systematic notification requirements. The Guidance was closer in character to a technical framework than to a set of rules prescribing the investment decisions that an administering authority might take. It might have an indirect effect on individual investment decisions, but the authority was left with the freedom to take those decisions and was not required to invest or not invest in any particular financial product. (6 June 2018)
If you wish to discuss any of the items noted in this section please contact Sarah Lamont.
Environmental Protection
Mayor of London: London Environment Strategy: this Strategy bring together approaches to every aspect of London’s environment. It sets out a vision for London in 2050 that will realise the potential of London’s environment to support good health and quality of life and to make the city a better place to live, work and do business. There is also an implementation plan that sets out the Mayor's priorities for the next five years to help implement the aims of this Strategy. (14 May 2018)
Welsh Government: Free drinking water along Wales Coast path to tackle plastic pollution: announces plans to improve access to drinking water in public places across Wales to help reduce the use of single use plastics. The Welsh Government will work with towns, villages and food and drink businesses along the Wales Coast Path to roll out a Refill scheme for Wales, as part of the Welsh Government’s ambition to become the world’s first refill nation. (4 June 2018)
If you wish to discuss any of the items noted in this section please contact Nadeem Arshad.
Health and Social Care
NHS England: Breaking down barriers to better health and care: guidance on how NHS organisations and local councils in England are moving from fragmented services to local partnerships and integrated care systems in order to meet the health needs of the population. (7 June 2018)
CMA: Care Homes for the elderly – Draft consumer law advice: seeks views on draft CMA advice for providers of residential and nursing care homes for people in the UK over 65 on their consumer law obligations. The draft advice covers a range of issues including the provision of upfront information, contract terms and business practices, providing services with reasonable care and skill, and complaints-handling. It follows the CMA's year-long market study into the residential and nursing care home sector in the UK for people over 65, which found that there is a risk of residents being treated unfairly and that some care homes may potentially be breaching consumer law. The consultation closes on 12 July 2018. (31 May 2018)
CMA: UK care home providers for the elderly – Consumer law advice on the charging of fees after death: advice for care home providers on their responsibilities under consumer law following the death of a resident. It sets out the CMA’s views on the application of Part 2 of the Consumer Rights Act 2015 in relation to unfair contract terms and the Consumer Protection from Unfair Trading Regulations 2008 in relation to unfair business practices. (31 May 2018)
If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.
Housing
MHCLG: The New Towns Act 1981 (Local Authority Oversight) Regulations 2018 – Summary of consultation responses and Government response: sets out the outcome of the December 2017 consultation on draft regulations made under s.16 of the Neighbourhood Planning Act 2017, that would enable the creation of locally-led New Town Development Corporations. The draft New Towns Act 1981 (Local Authority Oversight) Regulations 2018 provide the detailed provisions for New Town Development Corporations that are overseen by the local authority or authorities covering the area designated for the new town. Under the regulations, local authorities will be able to seek Government’s approval to launch a New Town Development Corporation, which will be responsible for delivering new towns and garden communities in their area. The new bodies themselves will be responsible for master planning and project development, bringing on board private investment, partnering with developers and overseeing the completion of a new town or garden village. The Government will be publishing guidance for local authorities on the Regulations. See also MHCLG's press release New powers for councils to deliver homes for local families. (4 June 2018)
MHCLG: Property guardians – A fact sheet for current and potential property guardians: a property guardian is someone who has entered into an agreement to live in a building or part of a building that would normally be otherwise empty, for the primary purpose of securing and safeguarding the property. While the Government does not encourage or endorse the use of property guardianship schemes as a form of housing tenure, it is important that anyone currently acting as a property guardian, or considering entering such an arrangement should fully understand their rights and responsibilities. This short fact sheet highlights the limited rights of property guardians so that current and potential guardians can make informed decisions. (30 May 2018)
MHCLG: James Brokenshire announces £30 million immediate support for rough sleepers: announces that 83 councils will share £30m funding to provide additional bed spaces for rough sleepers and additional dedicated homelessness workers. The funding will also help improve the co-ordination of services available to those in need and at risk. (9 June 2018)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Outsourcing
NAO: Investigation into the Government’s handling of the collapse of Carillion: this investigation sets out Carillion’s role in the market for government services, the Cabinet Office’s monitoring of Carillion’s financial health, the Government’s contingency planning for Carillion’s possible failure, the Government’s response to Carillion’s request for financial support, and the impact on government of the liquidation. The report focuses on the role of the UK Government in preparing for and managing the liquidation; it has not assessed the actions of Carillion, its directors or its advisers. It finds that the liquidation of Carillion will cost UK taxpayers an estimated £148m, although this is subject to a range of uncertainties and it could take years to establish the final cost. There will also be wider costs to the economy, Carillion’s customers, staff, the supply chain and creditors. (7 June 2018)
If you wish to discuss any of the items noted in this section please contact David Hutton.
Planning and Development Control
Welsh Government: Subordinate legislation consolidation and review: seeks views on proposals to consolidate the Town and Country Planning (Use Classes) Order 1987 (UCO) and Town and Country Planning (General Permitted Development) Order 1995 (GPDO) in order to streamline the planning legislation for small and low impact developments and make sure the most accurate version of the legislation is readily available. The consultation closes on 24 August 2018. (31 May 2018)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Public Health
DHSC: Tobacco control plan – Delivery plan 2017 to 2022: this delivery plan will monitor how the aims of the Tobacco Control Plan for England are being met, through inter-departmental collaboration and local partnerships, with a cross-government oversight body to provide governance. It sets out specific milestones and what is expected at national and local levels. It also sets out a number of areas where the Government is encouraging local areas to work collaboratively to address smoking. (7 June 2018)
HC Health Committee: Childhood obesity – Time for action: this report identifies several key areas which demand attention as a matter of urgency by the Government before it finalises the refreshed version of the 2016 childhood obesity plan. The Committee is calling for an effective childhood obesity plan with a joined-up, whole systems approach and one which focuses particularly on tackling the ever-widening health inequality due to childhood obesity between the richest and poorest areas. (30 May 2018)
Welsh Government: Local authorities expected to improve access to public toilets: announces that under Part 8 of the Public Health (Wales) Act 2017, which came into force on 31 May 2018, each Welsh local authority now has one year to assess the needs of their community, including changing facilities for babies and Changing Places facilities for disabled persons, and put a strategy in place to ensure the public will have greater access to these facilities. The strategy should go beyond the provision of traditional stand-alone public toilets, and look at new and creative solutions, including bringing toilets in public buildings into wider use and working with private businesses to make their facilities available to the public. The Welsh Government will be issuing statutory guidance on local authorities' local toilets strategies. (31 May 2018)
LGA: Good progress but more to do: teenage pregnancy and young parents: the case studies in this briefing highlight the continuing good work of local authorities in both helping young people prevent unintended pregnancy and supporting young parents. The focus on teenage pregnancy seen in England during the last 15 years or so has been one of the success stories in the public health field. The conception rate for young women aged 15 to 17 has fallen by 60 per cent since 1998 with a similar reduction in conceptions to under-16s. Both are at lowest level since record-keeping began in the late 1960s. However, the teenage birth rate still remains higher than a number of other western European countries and the progress made has been uneven across England. (30 May 2018)
PHE: Heatwave Plan for England: updated version of the Heatwave Plan that aims to prepare for, alert people to, and prevent, the major avoidable effects on health during periods of severe heat in England. It recommends a series of steps to reduce the risks to health from prolonged exposure to severe heat. (29 May 2018)
Welsh Government: The Smoke-free Premises and Vehicles (Wales) Regulations 2018: seeks views on draft regulations that make a number of changes to the current regulatory regime on smoke-free premises under the Public Health (Wales) Act 2017, including extending the regime to hospital grounds, school grounds and playgrounds. They also amend the meaning of "substantially enclosed" to clarify when structures that form part of the perimeter of the premises should be included when assessing whether the premises is "substantially enclosed". The consultation closes on 17 August 2018. (25 May 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
Regulatory Services
LPHCA Ltd (t/a Licensed Private Car Hire Association) v Transport for London (TfL) [2018] EWHC 1274 (Admin): LPHCA, a national association of private hire car operators, applied for judicial review of TfL's decision to make changes to the fee structure for private hire operator licensing, which were implemented through the Private Hire Vehicles (London) (Operators' Licences) (Amendment) (No.2) Regulations 2017. LPCHA contended that the consultation process on the fee changes was unlawful because TfL failed to provide adequate information to permit of an informed response on the financial basis for the changes, and that the apportionment of additional costs to private hire operators, rather than more to taxis, and to private hire drivers and vehicles, was unlawful because it involved a cross-subsidy from private operators to other licensees.
The court held, dismissing the application, that the question of whether sufficient reasons were given for the proposals to permit respondents to give intelligent consideration to them and to respond, depended on what the scope of the consultation was. It was not about the hiring of 250 compliance officers nor about the £209m budget for licence and compliance costs over the next five years; it did not directly relate to taxi licence fees, nor to the fees charged to drivers or in respect of vehicles. It was clearly about the proposed changes to the fee structure for operators. The sum which the new structure was intended to raise from operators was known - this was £38m, made up of £8m (operator licensing administration costs) and £30m (TfL enforcement costs) over a five year period. The essence of LPCHA's submission was that there was insufficient information about how that £38m had been arrived at, but nothing showed that TfL intended a consultation on how it reached the £38m figure, it consulted on the structure whereby operators' fees would raise that sum. The true scope of the consultation, intended by TfL, did not cover the way in which £38m was the costs of licensing regime attributed to operators, and was confined to the structure whereby operators' fees would raise that sum. Accordingly, there was no unlawful failure to disclose the information about how that was worked out, in order for consultees to be sufficiently informed about the proposal actually under consultation in order to make an informed response.
A cross-subsidy would be a form of market regulation, which the licensing system could not be used to achieve, in the absence of an express power. LPCHA had to show that the basis upon which the licence fees were charged to operators, in the amended Regulations, involved their fees subsidising the fees charged to other licensees within the taxi and private hire system; however, it had produced very little evidence to show that there was in fact such a subsidy. TfL had produced a reasonable method, with some evidence, to which reasoned judgement had been applied. It had not been shown to be wrong on its face, and on the analysis there was no unlawful subsidy. (30 May 2018)
Cambridge City Council v Traditional Cambridge Tours Ltd [2018] EWHC 1304 (QB) (QBD): the first defendant, TCT, was a company which carried on commercial punt operations on the River Cam; it had no authorisation or licence to conduct punt operations from any land belonging to the Council, nor was it authorised by the Cam Conservators, the body with authority over the River Cam, to conduct its punt business on the river. The other defendants were individuals and directors of TCT or individuals who were alleged to have been involved in TCT's punt operations. The Council argued that TCT had trespassed by conducting unauthorised commercial punt operations on its land and it sought an interim injunction to prevent that trespass.
The court held, granting the application, that the commercial punting activity constituted a trespass on the Council's land. TCT's activities plainly amounted to unreasonable use of the highway – it was conducting commercial operations on the Council's land without consent, and the crowds of people connected with TCT's business inhibited the rights of others wishing to use the highway to come and go, which was an inconvenience and might be an obstruction. TCT, as a corporate body, was capable of committing an act of trespass by unreasonable user of a highway. TCT's argument that it was for the Conservators to enforce their byelaws and to regulate the use of the River Cam, and not for the Council, was correct but it missed the point of the Council's claim, which was for trespass on the Council's land which lay adjacent to the river. The Council was obviously entitled to take action to prevent a trespass of land belonging to it, whether or not that trespass happened to be connected with or a prelude to unlawful activity on the River Cam, which fell under the jurisdiction of a different authority. It was open to the Council to take civil action of this sort and s.137 of the Highways Act 1980 did not provide a suitable alternative remedy – that section permitted an action to be taken to prevent a wilful obstruction of the highway, which was not what was at issue in this case. The fact that the trespass had gone on for so long and had persisted despite the various measures taken by the Council and the Conservators, demonstrated the determination of the unauthorised operators to continue this activity unless the Court ordered them to stop. It was therefore just and convenient for the court to exercise its discretion under s.37 of the Senior Courts Act 1981 to grant an injunction. (25 May 2018)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Standards
LGA: A councillor’s workbook on effective councillor / officer relationships: this workbook has been designed as a distance learning aid for local councillors. It is an introduction to the respective roles, explains how the roles have changed, and how and why tensions can arise. It also provides tips and techniques on how to deal with difficult situations. It takes a ‘broad principles’ look at councillor/officer relations so councillors are advised to refer to their authority's own protocol within their Constitution, as well as values and behaviours frameworks, when working through this workbook. (31 May 2018)
If you wish to discuss any of the items noted in this section please contact Judith Barnes.
