20/12/2018

LA Spotlight - The year ahead

As we enter the new year, councils know the challenges ahead of them. The context of service delivery is not changing for the foreseeable future. The funding settlement offers little relief and the ongoing Brexit uncertainty means legislative and resultant ministerial time to tackle some of the larger issues on a structural and comprehensive basis is unlikely. It means councils will continue to meet their challenges as best they can.

There are many initiatives nationwide and good examples of success, with many councils learning valuable lessons. However, the time and opportunity to share such thinking and to create the space for delivery of strategic imperatives remains limited. In LA View we will try to bring you case study examples to direct you to some good practice and identify interesting policy developments in five key areas where we see councils requiring legal support:

One current matter of interest and value is the Local Industrial Plans (LIPs) created by the West Midlands Combined Authority and the Greater Manchester Combined Authority. Other regions, often working with their LEPs, are following suit including in the Oxford Cambridge corridor.

Whilst LIPs look to the future, more immediate concerns continue in relation to balancing next year’s budget. We will watch as the sector absorbs lessons and tries to minimise the risk of failure. Comments about possible “further intervention” for commercial investments, illustrate the level of additional scrutiny we expect councils to face. Local accountability and consultation requirements need to be addressed positively and in a manner that does not result in inertia when change is needed.

 

 

Commercialisation

The need to ensure compliance with accepted standards of good governance and best practice remains, as cuts to core services in England continue (English core funding slashed as budgets rise in devolved nations). However, concern has been expressed by the Local Government & Social Care Ombudsman over the way in which changes to practice have been adopted, with a warning not to “throw out the rule book” when redesigning services (Under Pressure – the impact of the changing environment on local government complaints). This emphasises the need for appropriate and additional diligence to ensure compliance with good practice that will help facilitate, rather than stifle innovation. That can require a new approach.

Meanwhile, whilst authorities continue to look to look to property investment to boast sustainability (Eyes on the money: councils turning to commercialism), the challenges of the day job appear to be relentless, as social care spending mounts with increasing demand, and high profile controversy over spending on discretionary services. There is more to service re-design than simply cutting costs and the long term implications and durability of any restructure or partnership with the private sector needs to best serve the interests of the public and genuinely improve the way in which services are delivered. The Restoring Public Values in Public Services: A route map for national, municipal and citizen action report, introduces some challenges for lawyers advising on a values led approach to commercialisation.

 

Publications & Guidance

Under Pressure – the impact of the changing environment on local government complaints
Local Government & Social Care Ombudsman | December 4, 2018
This report is based on nearly 40 case studies in which systemic problems stemming from councils changing the way they provided services were identified.  The Ombudsman challenges local authorities not to “throw out the rule book” when redesigning services in the face of budget and resource pressures.

Annual Report on state of education and children’s care in England
Ofsted | December 4, 2018
This year's annual report finds the overall quality of education and care is improving, but there are disparities and more action is needed to support those children with special educational needs and/or disabilities.

Restoring Public Values in Public Services: A route map for national, municipal and citizen action
Centre for Local Economic Strategies | November 30, 2018
This report outlines how a ‘private is best’ approach has led to a situation in which public services are too often outsourced to low quality, high cost providers who, in a race to the bottom, have compromised the dignity and safety of people who rely on these services.

Which councils are best?
iMPOWER | November 22, 2018
This report defines productivity as outcome value per pound spent. It measures performance against outcomes (per pound invested) through six different lenses: children’s social care; older people; all age disability; health and social care interface; housing and homelessness; and waste and recycling.  The top 10 ranking is topped by Leicestershire.

Encouraging engagement between STPs and the adult social care sector
Care Provider Alliance | November 19, 2018
The CPA has published guidance intended to help overcome any concerns local authorities or the NHS might have about engaging with individual adult social care providers on behalf of the wider sector. The "Seven principles for the engagement of individual providers on behalf of the wider sector" are based closely on the widely recognised "Seven principles of public life."

Home care in England: views from commissioners and providers
A study from The King’s Fund focusing on the challenge of staff shortages and low fees paid by councils to providers, leading to issues in maintaining quality of service and provider withdrawal from the market.

 

News

Eyes on the money: councils turning to commercialism
CIPFA Public Finance | Feature | November 14, 2018
The trend towards local authorities buying commercial property such as shopping centres and office blocks continues, and the returns can be substantial if risk is effectively managed.

Don’t risk your foundations
The MJ | November 21, 2018 (subscription only)
Local authorities need to consider the long-term sustainability risk implicit in becoming too dependent on commercial income, or in taking out too much debt relative to net service expenditure.

The public service gamble: Councils borrowing billions to play the property market
The Bureau of Investigative Journalism | December 4, 2018
As reported in The Times and LGC, this investigation raises alarm at councils taking on debt to buy commercial property, exposing the future funding of their public services to the uncertainty of the property market.

Councils ‘unsustainably’ spend millions of pounds more on social care
CIPFA Public Finance | News | 15 Nov 18
Social care was the largest area of increased expenditure for local authorities in the last financial year, government figures have revealed.

Local authorities must concentrate on investible propositions, says treasury minister
Nottinghamshire Live | December 5, 2018
Local authorities should stimulate their local economies by coming up with ideas that catch the attention of Government and potential investors, says Robert Jenrick, exchequer secretary to the Treasury.  Mr Jenrick urged East Midland authorities to concentrate on “investible propositions,” ideas worth investing in which will boost the economy and attract investment.

English core funding slashed as budgets rise in devolved nations
LGC | November 22, 2018 (subscription only)
The level of funding for core services, including schools but excluding police and fire, for English councils has been cut by 26% since 2010, whilst the devolved administrations in Wales and Scotland have increased funding, in absolute terms, by 8% and 3% respectively over the same period.

Local government hits out at MHCLG permanent secretary
The MJ | November 26, 2018 (subscription only)
Melanie Dawes has faced criticism after stating that councils were still sustainable as they only needed to provide statutory services, when giving evidence to the Public Accounts Committee Inquiry into Local Government Spending.

Only a quarter of councils are implementing a smart city strategy
Local Gov | December 7, 2018
Nearly all local authorities are aware of the concept of Smart City/Smart Place but only 27% have a strategy actively underway, according to a survey of council directors by The MJ and BT.

Liverpool City Council launches housing company
LocalGov | December 5, 2018
The council-owned company Foundations intends to build and renovate 10,000 homes over the next decade in a £1bn investment programme.  The council has also announced a new Rent to Buy scheme which would enable people to pay reduced rent on Foundations properties.

Councils missing out on £16bn in interest savings by refinancing LOBO loans via Government
Research for Action | November 27, 2018
Following the announcement of loan refinancing savings, this research article conducted an analysis into savings that could be obtained by other councils that have taken out LOBO loans.  It found that for just the top 10 borrowers of these bank loans, they could save £4bn over 40 years by refinancing via the Public Works Loan Board.

Local Government Finance Settlement delayed until after the vote on the EU Brexit deal
Parliament.uk | December 5, 2018
The settlement was due to be published on 6th December but will now be announced after the debates and vote.

County takes out loan to save money on PFI waste incinerator
LGC | November 28, 2018 (subscription only)
Suffolk County Council is set to save £10.4m through borrowing £10.2m via the Public Works Loan Board in order to pay off part of the capital costs for the Great Blakenham incinerator.

A vision for population health: Towards a healthier future
The King’s Fund | November 27, 2018
Among other recommendations, the report calls for the forthcoming Spending Review to restore public health grants to local authorities to at least 2015/16 levels (an increase of at least £690m) and move to multi‑year funding settlements.

Kier falls out of FTSE 250 amid outsourcing shares rout
The MJ | December 10, 2018 (subscription only)
Shares in Kier Group drop, as the market reacts to the construction firm’s emergency plan to raise £264m to clear debts.

We need to talk about finance
The MJ | December 12, 2018 (subscription only)
SOLACE Head of Policy, Phil Das Gupta, writes that Brexit continues to dominate the Government’s agenda, while fundamental questions regarding value, taxation, and democracy in local government remain unaddressed.

Warning of irreversible damage if children's funding not addressed
LGC | November 16, 2018 (subscription only)
In an interview, the President of the Association of Directors of Children’s Services, Stuart Gallimore, states that the sector has reached a tipping point where children’s outcomes will be profoundly affected.

Portsmouth to sell fledgling energy firm
The MJ | By Martin Ford | 30 November 2018 (subscription only)
Portsmouth Council has decided to sell the energy company set up by its previous administration, stating that the risk involved in continuing with the project is too high.

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Place & Growth

Good planning is at the heart of place. The Raynsford Report (Raynsford Review of Planning: final report) suggests that, at the moment, it is difficult to find any group that is satisfied with the current planning system. Developers complain that it is too slow and uncertain; communities believe they aren’t sufficiently consulted and their concerns overlooked; individuals find the process too complex, and the planners themselves feel trapped in “a process-driven treadmill”. This assessment warns that planning has been reduced to a ‘chaotic patchwork’ of responsibilities which is not compatible with promoting the health, wellbeing and civil rights of communities.  The planning system needs to improve to meet the challenges ahead including the inequalities between places and communities, the consequences of climate change and the need to meet the requirement for increased housing with a good quality response.

The report suggests that deregulating the conversion of former industrial and commercial buildings in an attempt to meet the housing shortage, has created the prospect of “a new generation of slums”. Council leaders have also recently warned that this policy is leading to a shortfall in the number of homes being delivered (Permitted development rules are exacerbating affordable housing crisis, councils warn). Clearly, given the focus on delivery of new homes, it is important that any solution reached will lead to high-quality sustainable places.

The report also makes a number of recommendations to create a new planning system which would, amongst other things “have a clear purpose, prioritising the safety and wellbeing of people within a framework of long-term sustainable development, so as to create places of beauty, safety and resilience”. It is a noble objective and one we all hope can be delivered.  The next question is ‘how can we support’?

 

Publications & Guidance

Consultation: Land use - net gain
DEFRA | December 2, 2018
The government is consulting on mandating biodiversity net gain in development to ensure habitats are protected and enhanced for the future. In plans published for consultation on 2 December, developers could be required to deliver a ‘biodiversity net gain’ when building new housing or commercial development – meaning habitats for wildlife must be enhanced and left in a measurably better state than they were pre-development.

Government response to Cycling and Walking Investment Strategy (CWIS) safety review
Department for Transport | November 22, 2018
Among other initiatives, local authorities will be allowed to use CCTV to police cycle lanes for the first time to prevent drivers blocking routes. The move is part of a two-year action plan to improve road safety and make cycling and walking more popular for all short journeys by 2040.

Homelessness: The road to prevention
LGiU | November 29, 2018
This long read outlines recent discussions on how councils can support vulnerable people, particularly young people, in danger of becoming homeless and how they can use their data to join up services more effectively.

Local boundaries in England: What is ‘place’?
House of Commons Library | November 22, 2018
Think-tanks have addressed the effects of Government policy on ‘place’, but what constitutes a ‘place’ and is local identity important?

Ban on combustible materials
Ministry of Housing, Communities and Local Government | November 30, 2018
The government is banning combustible materials on new high-rise homes and giving support to local authorities to carry out emergency work to remove and replace unsafe aluminium composite material (ACM) cladding.

Improving planning performance: criteria for designation
Ministry of Housing, Communities and Local Government | November 29, 2018
This document sets out the government’s criteria for assessing local planning authority performance in determining applications for major and non-major development.

National Infrastructure and Construction Pipeline 2018
Infrastructure and Projects Authority and HM Treasury | November 26, 2018
The pipeline details planned infrastructure and construction investment across the public and private sectors, building on the work of the National Infrastructure Delivery Plan 2016-21, which set out the government’s plans to support the delivery of housing, and social and economic infrastructure.

State of the North 2018: Reprioritising the Northern Powerhouse
IPPR North | December 5, 2018
This is IPPR North’s fifth annual State of the North report. It set out five priorities for northern leaders to take this important agenda into a new phase.

Bridging the Gap: UK Attractiveness Survey special report
EY | November 28, 2018
This report, produced in collaboration with Centres for Towns, demonstrates the disparity of foreign direct investment flows into the UK, which are dominated by the UK’s largest cities and towns at the apparent expense of the areas that surround them.

Air quality: Cutting through the haze
House of Commons Library | November 27, 2018
A number of plans, legislation and policies on air quality are expected over the coming months. Here’s a summary of some of the key things to look out for.

The Geographical Spread of recent Homes England Grants
Key Cities | November 2018
The distribution of roughly £7bn of government investment in five separate housing programmes over the next five years is inconsistent across England, with areas across the South of the country disproportionately funded, according to a new report from Core Cities UK and the Key Cities Group.

 

News

How to solve the high street regeneration puzzle
Public Finance | December 4, 2018
Professor Cathy Parker of the Institute of Place Management writes that the decline of the high street has not been addressed in a place-based way, and retail-based solutions do not address the causes of the problem.

Councils struggle to discharge new homelessness duties
CIPFA Public Finance | News | November 13, 2018
Help offered by councils to young homeless people is ineffective half the time because of inadequate funding, analysis by the Centrepoint charity has revealed.

Sharing land value with communities: An open letter
Onward | November 26, 2018
A cross-party open letter to James Brokenshire calling for the reform of compulsory purchase rules; specifically, local authorities should be able to compulsorily purchase land at fair market value that does not include prospective planning permission, rather than speculative “hope” value.

Why council housing could be built in Manchester city centre for the first time in decades
Manchester Evening News | December 6, 2018
A paper due to go before next week’s executive - which also outlines new plans to build thousands of ‘genuinely’ affordable homes across the city by 2028, a third of them social housing – states the council will complete a feasibility study into a genuinely affordable housing scheme within the city centre.

£1m funding for communities to create their own pocket parks
MHCLG | December 5, 2018
Community groups can bid for funds to establish a new pocket park or refurbish an existing park.

Local Industrial Strategies to drive growth across the country
Department for BEIS | December 3, 2018
Local Industrial Strategies, led by Mayoral Combined Authorities or Local Enterprise Partnerships, will promote the coordination of local economic policy and national funding streams and establish new ways of working between national and local government, and the public and private sectors.

Combined authority blocked from funding affordable schemes calling for legislation change
Inside Housing | November 11, 2018 (subscription only)
Cambridgeshire and Peterborough Combined Authority is asking the government to change legislation preventing it from funding affordable rented housing schemes using money secured through its devolution deal.

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Governance & Reorganisation

Another month, another tranche of Brexit activity - from the Prime Minister acknowledging likely defeat and putting the vote on her Brexit deal on hold until the new year, to the tabling of a motion of no confidence,  and an increasing possibility of a no-deal Brexit - how the saga will end remains to be seen.

At the very time that local authorities might have been expecting to crystallise the implications of Brexit (for the budget process) the outlook remains as clear as mud. However, we can be sure that whatever Brexit is delivered, it is likely to have a significant impact upon local authority operations.

After being delayed on account of the vote on the Brexit deal, the provisional local government settlement 2019/20 was delivered on 13 December 2018 and allegedly offers 2.8% growth, 15 new business rate retention pilots along with potential curbs on authorities' powers to borrow to invest for commercial returns.

Although not all bad news funding challenges will continue for Councils throughout the coming year with an anticipated £3.2bn funding gap in 2019/20.

 

Legislation

Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2018/1207
These Regulations make amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146) (“the 2003 Regulations”). The amendments suspend two aspects of normal accountancy practices that apply to all local authorities (to allow a local authority to use capital receipts to make back pay settlements to employees related to unequal pay claims to April 2020; and pooled investment fair value gains/losses not to be charged to revenue (excluding pensions fund investments until 31st March 2023). Introducing these changes will ensure that local authorities’ finances are not adversely impacted as a result of the accounting practices in question.

Publications & Guidance

Central Government release provisional local government finance settlement 2019 to 2020
GOV.UK | 13 December, 2018
As many of you will know the provisional local government finance settlement was put back as a result of the Brexit vote scheduled for Tuesday 11th December (which of course did not happen). The settlement, delivered on 13 December 2018 offers 2.8% growth, 15 new business rate retention pilots along with potential curbs on authorities' powers to borrow to invest for commercial returns. We still await the Green Paper on social care and the extra funds are at best a "sticking plaster" on the demands being placed on local authorities

CIPFA has announced a number of changes to its proposed Financial Resilience Index
Chartered Institute of Public Finance and Accountancy | December 4, 2018
These modifications have been made after CIPFA received an unprecedented number of responses to the consultation on its Index from local authorities, representative groups, statutory bodies and auditors.  One key change is the removal of the composite index that combined a number of factors into a single weighted measure.

The proposed reorganisation of local government in Northamptonshire
GOV.UK | November 29, 2018
This consultation seeks views on the proposal that government has received from Northamptonshire councils for local government reorganisation, to create two unitary councils, and closes on 25 January 2019. To inform the Secretary of State’s decision under the Local Government and public Involvement in Health Act 2007, "representations are welcome from any persons interested, including local residents, businesses and those in the voluntary sector in Northamptonshire and neighbouring councils".

Northamptonshire county council: first commissioners' report
Ministry of Housing, Communities & Local Government | November 29, 2018
James Brokenshire has acknowledged receipt of the Commissioners' report setting out early steps to support Northamptonshire county council to recover their financial situation and bring spending back under control.

£1.5m geospatial competition open to improve public services
Cabinet Office | November 26, 2018
The Geospatial Commission has partnered with Innovate UK to launch a new government competition, where organisations can apply for a share of £1.5m to fund projects which use data linked to a location. Funding of £50,000 to £750,000 could be granted to eligible organisations (includes local authorities).

Consultation outcome: Enabling police and crime commissioners to sit and vote on combined fire and rescue authorities
Home Office | November 27, 2018
The government has responded to the independent inquiry into the objections of two combined fire and rescue authorities (FRA) in Cleveland and Dorset & Wiltshire, that disagreed with the government’s proposal to amend their combination schemes to enable a PCC to request to sit on the FRA with voting rights. The government has decided to insert the relevant enabling provisions to both combination schemes, in addition to amendments to the combination schemes of FRAs who were supportive of the proposal.

Decline and fall: understanding how and why local government fails, what leads to central Government intervention, and what comes after
Centre for Public Scrutiny | December 10, 2018
This report explores the current national landscape around failure and improvements and tries to chart a course for how Government, and sector led, improvement and intervention might be enhanced – in particular, by more attention being paid to the strength of governance at a local level.

 

News

Response to the Local Government Finance Settlement
LGA | 13 December, 2018
Chairman of the Local Government Association responds to the provisional financial settlement.

Nottinghamshire abandons reorganisation plan
LocalGov | 12 December, 2018
Plans to replace the county's two-tier system with a unitary authority (see below) have been withdrawn after County Councillors voted against holding a formal consultation.

Future Nottinghamshire: local government reorganisation in Nottinghamshire
Nottinghamshire County Council | December 4, 2018
Following engagement with the public and stakeholders, the County Council has published the Outline Case for Change for the future of local government in Nottinghamshire. The report concludes that a single countywide unitary council is the preferred option, delivering the greatest permanent financial savings of £27.1m. 

Nottingham City Council suspends role in Integrated Care System
Nottingham City Council | November 20, 2018
The Council has suspended its formal role in the Nottingham and Nottinghamshire ICS (ICS), stating, “While we support the principle of integration of health and social care services, this process cannot be a cover for cuts or for privatisation of public services, therefore proper oversight and scrutiny is required locally.” 

Greater Manchester is set to radically overhaul the way it delivers public services
Greater Manchester Combined Authority | November 29, 2018
The new Greater Manchester model of public service delivery is built around the needs of its people and places, not the policies of service providers.  Public services are being integrated at a local level. This means organising resources – people and budgets – around neighbourhoods of 30,000-50,000 residents, rather than around policy areas as is traditionally done.

MPs raise fears over fire service governance
CIPFA Public Finance | News | November 15, 2018
MPs have rallied against proposals to transfer governance of a fire service to the West Midlands mayor.

Liverpool City Council brings urban regeneration company in-house
Place North West | December 7, 2018
Economic development firm, Liverpool Vision, is being brought in-house by the city council.  The company’s 37 staff will formally transfer to Liverpool City Council in March, merging with the authority’s regeneration and culture departments.

Councils advised to ‘prepare now for any kind of Brexit’
Public Finance | December 6, 2018
Local authorities need to be prepared for any form of exit from the EU and now is the time to “double down” on devolution efforts, a CIPFA panel discussion has heard.

Two Yorkshire LEPs approve merger plans
LocalGov | November 23, 2018
The Leeds City Region Enterprise Partnership and York, North Yorkshire and East Riding Enterprise Partnership have approved plans to merge and create a single LEP covering a population of 3.1m people and an economy worth £70.3bn.

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Contract Management

The role of the private sector in public service delivery continues to come under scrutiny, with a number of other major private sector organisations reporting profit warnings and financial instability.  

Notwithstanding this, a number of UK outsourcers have now acknowledged the concern and Capita, Serco and Sopra Steria have volunteered to draw up contingency plans, after the Cabinet Office highlighted that it lacked key organisational information that could have helped in the aftermath of the Carillion collapse in January. With financial reports on Interserve, Kier and others, councils could utilise their rights to access further information.  The intention of these providers is to produce living wills, to give Government time to transfer services to a new supplier or take them in-house, in the event of a company’s failure.  They are due to complete their contingency plans within weeks, with other companies expected to follow as a means to protect public services. Many contracts which local authorities have include a requirement for exit plans.  These should be reviewed and updates sought

In the face of this uncertainty, and whilst the country continues to identify its post-Brexit future, the importance of effectively managing contracts continues to be of key importance.  With many new initiatives being announced to improve procurement routes, including, engaging earlier with the market on the design of outsourcing projects, and by requiring pilots for new services, the Government is seeking to learn from experience and deliver better public services for taxpayers.

Following the updates to the Government’s Supplier Code of Conduct at the end of last month (Supplier Code of Conduct updated 28 November 2018) and the scaling-up of the GovTech catalyst programme to ensure the best ideas and technologies are assessed quickly (plans to be published in Spring 2019), the purchasing power of the Government continues to be at the heart of the economy. The skill of procuring and managing contracts becomes ever more a balancing act between strong enforceable contract terms and ensuring flexibility to enable innovative service delivery.

 

Publications & Guidance

New 'Social Value' contracts to “revolutionise” government procurement
Cabinet Office | November 19, 2018
By summer 2019, government procurements will be required to take social and economic benefits into account in certain priority areas.  Also, government suppliers will be required to draw up a ‘living will’: a plan for how the public services it provides can be secured and continued in the event of potential company failure, to allow government time to transfer the services safely to a new supplier, or take them in-house.

Crack down on suppliers who don’t pay on time
Cabinet Office | November 29, 2018
A new initiative means companies that fail to demonstrate prompt payment to their suppliers may be prevented from winning government contracts.  CCS has published outcomes of a consultation on prompt payment in government supply chains, seeking views on whether it would be appropriate to exclude suppliers from major government contracts where they cannot demonstrate a fair, effective and responsible approach. A procurement policy note has been published including standard questions and guidance on assessing payment practices that will apply for in-scope procurements (£5m+) advertised on or after 1 September 2019.

Allied Healthcare CQC Stage 6 notification - information and resources
Local Government Association
A collection of information for councils affected by risk of service disruption because of the possible failure of the home care supplier Allied Healthcare.

Law Society publishes response to consultation on electronic execution of documents
Law Society | November 2018
The Law Society has published evidence and opinions in response to the Law Commission’s consultation to consider how to simplify the execution of documents electronically.  The aim of the consultation was to address any uncertainty surrounding the formalities around the electronic execution of documents and to ensure that the law governing this area is flexible and certain enough to remain competitive in a post-Brexit environment.

 

News

‘Living wills are not enough on their own’
The MJ | November 27, 2018 (subscription only)
Commentary stating that “living wills on their own are small change in an area that needs to see sweeping reforms”.

Capita to pay more than £4m compensation to Barnet Council over contracts performance
Public Sector Executive | November 23, 2018
Capita has agreed a payment to settle “historical commercial issues” which includes the delivery of IT services in adult social care and delays in delivering housing.

Outsourcing firm Interserve's shares dive by 75% despite rescue plan
The Guardian | December 10, 2018
Concern grows regarding Interserve’s financial situation, with calls for the outsourcing firm to be temporarily banned from bidding for public contracts.

Kier construction shares lose 30% on plans to raise cash
The Guardian | November 30, 2018
The construction firm, which is working on major infrastructure projects such as HS2 and Crossrail, sees share fall sharply after £264m rights issue.

Tough times for creaky outsourcers
LocalGov | December 11, 2018
Commentary regarding local government reliance on large outsourcers and fear of market failure.

Allied Healthcare rescued just two weeks after announcing it was winding up its business.
LocalGov | December 3, 2018
Last month Allied Healthcare said it was handing contract back to around 150 local authorities.  The major care services provided blamed the Care Quality Commission for its decision to pull out of the market after they issued a warning over its weak position (as reported in last month’s Authority View).  Just two weeks later it has agreed to be bought by the Health Care Resourcing Group for an undisclosed amount.  However, it is thought some local authorities have already transferred their adult social care services to other providers or brought them in house.

 

Cases

High Court holds Liquidated Damages not a penalty
Bailli | November 2018
In the case of GPP Big Field LLP and Anor v Solar EPC Solutions SL [2018] EWHC (Comm) the deputy judge of the High Court decided (in favour of the Employer) various issues that commonly arise in the context of construction disputes.  This included that the liquidated damages provision was not a penalty, that there was no valid notice of force majeure and that the contractor’s parent company was liable for those damages under a contract of indemnity.

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Disputes

Given the ongoing pressure on resources and, in particular housing stock, local authorities will welcome the recent Court of Appeal decision in Alibkhiet v London Borough of Brent and Adam v Westminster City Council, in which both Brent and Westminster successfully defended challenges to their housing policies on providing out-of-borough accommodation placements for homeless people.

Both cases concerned the full housing duty, pursuant to which housing authorities are required to procure housing for the homeless and must, so far as it is reasonably practicable to do so, accommodate such persons within their own district.  Westminster had offered Ms Adam (a homeless divorced woman with 3 children of primary school age) accommodation in another London borough.  Whilst Brent had offered Mr Alibkhiet (an unemployed homeless man with a wife and 4 year old daughter) accommodation in Smethwick in the West Midlands.

In finding for the authorities, the Court of Appeal noted the following: 

  • A housing authority is entitled to take account of the resources available to it, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in its area, and the practicalities of procuring accommodation in nearby boroughs. Moreover, if there was available accommodation in-borough, an authority does not have to offer it to a particular applicant; it might be acceptable to retain a few units for applicants with particularly pressing needs to remain in the borough who might come forward in the relatively near future. The authority's policy for the procurement and allocation of accommodation should explain the factors which would be taken into account in offering households those units.
  • Where a public authority has a lawful policy, then provided that it implements that policy correctly its decision in an individual case would itself be lawful.
  • The purpose of giving reasons for its review decisions is twofold: first, so that the applicant understands what was decided and why and, secondly, so that the court might, if necessary, decide whether a decision-maker had made an error of law. It is not the function of a review decision to provide a treatise on housing law or a detailed description of everything that a housing authority did in performance or purported performance of its duties to the homeless. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions; the court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, but rather adopt a realistic and practical approach.
  • In the context of the Adam appeal, the Court found that if a housing authority decides to discharge its full housing duty by making a private rented sector offer, it was not required to wait in the hope that something would turn up in-borough. Westminster had discharged its duty to Adam by inquiring what suitable accommodation was available at the time at which it made its offer.

On a separate note, the Local Government and Social Care Ombudsman has recently published guidance entitled Under Pressurethe impact of the changing environment on local government complaints, which aims to help local authorities ensure that sound corporate governance is maintained during times of transformation and to enable authorities to learn from the Ombudsman’s investigations and improve services.

 

Cases

Faraday Development Ltd v West Berkshire Council & Anor [2018] EWCA Civ 2532
The Court of Appeal considered whether a local authority acted in breach of the requirements of Directive 2004/18/EC "on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts" ("the 2004 Directive") and the Public Contracts Regulations 2006 ("the 2006 regulations"), when, without having followed a procurement process under the 2006 regulations, it entered into a development agreement containing contingent obligations on the part of the developer to carry out development on its own industrial land.  The developer’s appeal was allowed.

London Borough of Southwark and another v Transport for London [2018] UKSC 63
This appeal considered whether the effect of a Transfer Order to Transport for London was only to transfer the surface of the highway for maintenance, or whether it was to transfer the entire interest held by the council in the land.  The Court found in favour of TfL.

Dill v The Secretary of State for Communities and Local Government & Anor [2018] EWCA Civ 2619
Concerning limestone pillars, the Court of Appeal has ruled that being on the register of listed buildings is enough to give a protection and its validity cannot be challenged in disputes over enforcement.

HJ Banks & Company Ltd v Secretary of State for Housing Communities and Local Government [2018] EWHC 3141 (Admin)
The Secretary of State erred in refusing planning permission for a surface coal mine.

Scunthorpe United Football Club Ltd, R (on the application of) v Greater Lincolnshire LEP Ltd & Ors
This judicial review challenge regarding a contested funding decision made by the Local Enterprise Partnership was dismissed.

Alibkhiet v London Borough of Brent v City of Westminster [2018] EWCA Civ 2742
Two local authorities in London had lawfully discharged their full housing duty under the Housing Act 1996 s.193 by offering homeless persons accommodation outside their respective districts.

 

Publications

Review of Adult Social Care Complaints 2017-2018
Local Government & Social Care Ombudsman | November 28, 2018
Social care pressures are reflected in Ombudsman’s annual review of complaints, with the Ombudsman becoming increasingly concerned about the way some authorities are handling the need to balance the pressures they are under with the way they assess and charge for care.

Under Pressure – the impact of the changing environment on local government complaints
Local Government & Social Care Ombudsman |
This report is based on nearly 40 case studies in which systemic problems stemming from councils changing the way they provided services were identified.  The Ombudsman challenges local authorities not to “throw out the rule book” when redesigning services in the face of budget and resource pressures.

The Postcode Lottery of Local Authority Enforcement in the PRS
Residential Landlords Association | November 29, 2018
This RLA report concludes that councils’ reluctance to prosecute criminals is failing landlords and tenants.

Considering the case for a Housing Court: call for evidence
MHCLG | November 13, 2018
This call for evidence seeks views and opinions from the judiciary, landlords and tenants to help the government to better understand and improve the experience of people using courts and tribunal services in property cases, including considering the case for a specialist Housing Court.

 

News

SRA reminds solicitors to adhere to their litigation obligations
Solicitors Regulation Authority | November 27, 2018
Solicitors have been reminded to adhere to all their professional obligations when engaged in litigation, and not to become “hired guns” just carrying out instructions that are in the best interests of clients.

Court ruling sets precedent in payout to parents of six-year-old girl who was sexually assaulted at school
The Guardian | November 21, 2018
The parents of a six-year-old girl who was sexually assaulted by fellow pupils while at school have won a five-figure compensation settlement from a local authority.  No liability was admitted by the council.

Families threaten county with legal action over cuts to services for disabled children
Local Government Lawyer | December 10, 2018
Somerset County Council faces a legal challenge over proposed cuts to service delivery.

Monitoring officer expresses concern after committee votes to disclose legal advice
Local Government Lawyer | November 21, 2018
A scrutiny committee motion recommends the release of legal advice sought by Pembrokeshire County Council, in relation to whether a former councillor still qualified for his seat prior to being convicted of rape.

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Forthcoming Events

Housing and Asset Management - At the operational level

9 January, Bristol

Housing and Asset Management - At the strategic level

9 January, Bristol

 

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