26/08/2021

LA Spotlight

The Environment Bill - Practical questions to think about

The Environment Bill continues its passage through Parliament.  Covering a wide range of matters of significance to local government, it will have major implications for those councils responsible for managing waste and recyclate collection.  As we move (hopefully) towards a Net Zero future, improved recycling can only be a good thing, but there is disquiet in the sector about the removal of local choice and decision making on service design and operation (especially a service that, just like potholes, is very visible to the local community).  Will the changes actually achieve what they set out to do?  Even if the changes are the right way forward, funding remains a substantial concern at a time of austerity and pandemic ravaged council budgets especially if certain collections that are currently charged for by many authorities must be delivered free.  Authorities may be able to share some of the burden with their contractors but that will not be easy (and is likely to be resisted).  The Government has promised new burdens funding but the detail is awaited to see exactly what this will cover.

The continued uncertainty raises a number of practical questions for authorities including:

  • Are your strategies sufficient to encapsulate the changes or will you need to begin (or even continue) a process of review and consultation?
  • What are the implications for existing budget provision?
  • What are your options with existing providers or future procurements?
  • What could the changes mean for joint working with other authorities?

Further information on the Environment Bill can be viewed via this link

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Net Zero

Electric vehicles and landowners – it’s time to get plugged in!

The Net Zero revolution has been given a huge boost by the Government’s announcement that the sales of petrol and diesel cars and vans will end in 2030 with hybrid vehicles being phased out by 2035.  With the phenomenal growth in the sales of electric vehicles (EVs) and the Government’s promise of over £1bn in funding, the focus is on providing sufficient charging infrastructure to support both the general transition to EVs, and the general target of Net Zero emissions. 

Many landowners, including local authorities, are considering the installation of EV charging points. But how easy is it? We will look at some keys point to consider.

Is planning permission required?
Generally the installation of charging points has the benefit of permitted development rights provided they comply with the conditions set out in The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).  The rules differ depending on whether the charging units are wall mounted or are the larger upstanding units and neither can be installed without planning permission on heritage or listed property.

Permitted development rights only last as long as the property is being used for EV charging and when this use ceases, reinstatement is required, which is a point to be clarified in the lease as to who will pay for the cost of this.

Is there an electricity supply?
The ability to connect into an electricity supply is key and this may not be as simple as it sounds.  Commercial sites will use considerably more electricity than residential developments and additional infrastructure is likely to be needed, such as an electricity substation, in order to service the charging points, particularly for the super-fast chargers.  This will often require a new connection, the location of which will be specified by the electricity distribution company and not the landowner, and in some cases will mean that the landowner will have to provide land for the new substation for the scheme to be viable.  It is vital that the necessary rights are put in place to connect to any substation or a new connection if they do not exist already, otherwise this is likely to be a deal-breaker.

Are consents needed?
Title deeds and supporting documents should be checked as consent may be needed in various situations for example where:

  • there are restrictions and/or covenants which prevent redevelopment
  • the property is leasehold and consent is needed from the superior landlord
  • the property is mortgaged and consent is needed from the lender
  • buildings and third party liability policies require consent from insurers.

Consideration should also be given to whether there are any electricity licensing implications, for example in relation to the supply of electricity to end-consumers at the charging point.

What would be the duration of the lease with an EV charging operator?
Typically a landowner may choose to grant a lease to a third party provider to install and operate the EV charging point.  EV charging operators are likely to require a lease in their standard form in a similar way to mobile phone operators and so will resist amendments to ensure that leases are consistent across all their sites.  Manufacturers estimate that the life of the charging equipment is 25 years and so terms vary but generally start with a minimum term of eight years, with the ability to extend although a term of 25 years is now being seen.

An emerging market brings opportunities as well as challenges and different structures are being explored regarding the installation and operation of EV charging points.  Various grants are also available.  It is possible for a landowner to provide the charging infrastructure and basically pay for everything in the hope of getting a sufficient return on its investment, but most enter into an arrangement with an operator.  Careful scrutiny of terms is needed when considering schemes which involve the landowner taking a share of the risk in return for a greater share in the profit.  Provided the sums add up, this arrangement may be beneficial for both parties as the costs of operating, installing and maintaining the necessary infrastructure can be considerable.

EV charging provides the potential for local authority landowners to acquire another income stream while helping to achieve goals regarding sustainability and decarbonisation. If you would like to discuss how the EV charging, please get in touch with any member of our dedicated team of net zero lawyers, including David Hobbs, Phil Roberts or Nadeem Arshad.

Publications & Guidance

Local government, climate change and the environment
Ministry of Housing, Communities & Local Government | 3 August 2021
This page brings together key guidance and information relevant to local government on topics related to climate change, net zero and the environment.

Zero emission vehicles
Transport Committee | 28 July 2021
A clear policy framework is essential to ensure that industry can deliver the vehicles and charging infrastructure required to deliver the Government’s ambition. In zero emission vehicles, MPs on the Transport Committee deliver a set of recommendations to Government to boost the production and purchase of electric vehicles as the net zero deadline approaches. Questions remain on whether the Government’s current plans are enough to deliver the public charging infrastructure needed across all regions of the UK and whether it will benefit everyone, says the report.  Accessible and reliable charging infrastructure must be available by 2030 but drivers who live in rural or remote areas or who don’t have off-street parking risk being left behind. Unless charging habits change, or the National Grid is strengthened, concerns exist that the charging needs from millions of new electric vehicles will cause blackouts to parts of the country.

The Future Homes Delivery Plan
Future Homes Task Force | 27 July 2021
The Future Homes Taskforce has launched its Future Homes Delivery Plan roadmap with the goals of achieving net zero production and construction by 2050. The plan’s goals are:

  • High-quality homes that are zero carbon ready, sustainable, while being healthy, safe and comfortable from 2025
  • Places and developments that are consistently low carbon, nature-rich, resilient, healthy well designed and beautiful by 2025 
  • Production and construction methods that are net zero and sustainable by 2050 with substantial progress by 2025 and 2030
  • Businesses operations in line with the Race to Zero: net zero by 2050 with a 50% reduction by 2030. 

Are local authorities equipped to reach net zero?
Environmental Audit Committee | 26 July 2021
The Environmental Audit Committee (EAC) is calling for evidence on the recently published report by the National Audit Office (NAO) on Local government and net zero. The NAO’s analysis followed an EAC request to examine how effectively central Government and local authorities are collaborating on actions to achieve net zero outcomes. Local authority responsibilities in England range from transport to planning, and from social housing to waste disposal, activities which generate a substantial proportion of the UK’s current emissions. The NAO report has highlighted that a lack of funding, and poor communication to and from the centre, are two issues which are hindering local authorities wishing to play their full part in reaching net zero. The EAC is interested in exploring the issues raised by the NAO report in greater detail, examining the role local authorities should play in reaching net zero, the funding and resources currently available to them, and how central Government is co-ordinating its engagement with local Government on the UK’s target to reach net zero by 2050. Written evidence should be submitted through the Committee’s web portal by 5pm Thursday 26 August.

Capacity Market 2021: call for evidence on early action to align with net zero
Department for Business, Energy & Industrial Strategy | 26 July 2021
This call for evidence seeks views on potential ways to improve assurance that capacity will deliver when required as the electricity system transitions towards net zero and as demand for electricity grows, and on early actions to better align the Capacity Market’s design with the government’s net zero ambition. This consultation closes at 11:45pm on 18 October 2021

Enabling a high renewable, net zero electricity system: government response to call for evidence
Department for Business, Energy & Industrial Strategy | 26 July 2021
The focus in this call for evidence was on understanding how a range of policies supporting the deployment of renewable technology should adapt over the next decade, focusing on three key areas:

  • maintaining growth in renewable deployment to meet net zero
  • ensuring overall system costs are minimised for electricity consumers
  • supporting and adapting to innovative technologies and business models.

This government response provides a summary of the views received which will inform our approach to the long-term future of renewable support and the future design of the Contracts for Difference (CfD) scheme. The response to this call for evidence has crystalised our view that longer-term changes for renewables will need to be considered holistically as part of a wider approach to the electricity market. We need to remain on track to deliver the deployment and energy system required for CB6 and net zero, but also do this in the most efficient way. With this mind, alongside this government response they are also publishing the Capacity Market call for evidence seeking views on improving assurance that capacity will deliver when required, and how to better align with decarbonisation of the power sector, such as enhancing participation of low carbon power.

Further action needed on EV charging to meet Net Zero
Competition and Markets Authority | 23 July 2021
The CMA has set out measures to ensure a national network of electric vehicle charge points is in place ahead of the 2030 ban on the sale of new petrol and diesel cars.

Public Sector Decarbonisation Scheme
Department for Business, Energy & Industrial Strategy | 23 July 2021
The Public Sector Decarbonisation Scheme provides grants for public sector bodies to fund heat decarbonisation and energy efficiency measures. Updated: PSDS Phase 2: list of grant recipients and project summaries added.

Highways England lays out roadmap to net zero by 2050
Highways England | 19 July 2021
Highways England has announced its new carbon plan that will see it cut carbon from road construction, maintenance and operations, and support the transition to zero emission vehicles.  Building on its work reducing carbon since 2015, the plan sets out a comprehensive roadmap to rapidly decarbonise the strategic road network. Highways England plans to achieve this by putting roads at the heart of Britain’s net zero future through three key commitments; achieving net zero for its own operations by 2030, delivering net zero road maintenance and construction by 2040; and supporting net zero carbon travel on our roads by 2050. 

Contractors and suppliers will also be required to act, including commitments to reduce carbon year-on-year by using the latest technologies, so that by 2040 our road maintenance and construction is near zero emissions. 

Priorities for COP26
Local Government Association | 19 July 2021
Local government plays a leading role in accelerating the shift towards achieving net zero carbon. With nearly two thirds of councils in England aiming to be carbon neutral 20 years before the national target, councils are well placed to support Government to meet its net zero carbon ambitions by 2050.

Local government and net zero in England
National Audit Office | 16 July 2021
This report from the National Audit Office (NAO) finds that central government has not provided local authorities with clarity about their roles in achieving net zero by 2050, and its approach to funding their net zero work is piecemeal. The NAO recommends that central government carries out an analysis of the net zero funding available to local authorities to inform the next Comprehensive Spending Review, considering the cost pressures they face. Gareth Davies, head of the NAO said “There are serious weaknesses in government's approach to working with local authorities on net zero, stemming from a lack of clarity over roles and responsibilities and piecemeal funding. This hampers local authorities’ ability to plan effectively for the long term, build skills and capacity, and prioritise effort. Government’s efforts to improve its approach to local action on net zero have been understandably slowed by the Covid-19 pandemic. However, there is now great urgency to make progress.” See also NAO: Funding problems hamper councils' ability to impact net zero targets in Public Finance.

Gigafactories for electric vehicle batteries need more Government support
Environmental Audit Committee | 16 July 2021
Reaching the UK’s ambition to host a further five ‘gigafactories’ to produce batteries for electric vehicles could reach a road block unless Government backing increases, the Environmental Audit Committee warns.

The role of Local Authorities in electric vehicle charging infrastructure
Local Government Association | 15 July 2021
Presentations from this event are now available.

Electric vehicle smart charging: consultation response
Department for Transport and Office for Low Emission Vehicles | 15 July 2021
The government has published its response to the consultation on smart charging. The final outcome sets out the government’s response and policy proposals, the main elements of which are that:

  • they will lay secondary legislation in autumn 2021 to mandate that private charge points sold in Great Britain must be smart and meet minimum device-level requirements
  • they will continue with a phased approach to smart charging legislation and aim to consult on proposals for Phase 2 legislation in 2022
  • they intend to take forward further work to explore whether private charge point location and energy data should be shared with specified parties.

Transport decarbonisation plan
Department for Transport | 14 July 2021
This plan sets out the government’s commitments and the actions needed to decarbonise the entire transport system in the UK. It includes:

  • a pathway to net zero transport in the UK
  • the wider benefits net zero transport can deliver
  • the principles that underpin our approach to delivering net zero transport.

The plan follows on from Decarbonising transport: setting the challenge, published in March 2020, which laid out the scale of additional reductions needed to deliver transport’s contribution to legally binding carbon budgets and delivering net zero by 2050.

Transitioning to zero emission cars and vans: 2035 delivery plan
Department for Transport and Office for Zero Emission Vehicles | 14 July 2021
Delivery plan setting out significant milestones towards the phase out dates for petrol and diesel cars and vans.

Decarbonisation readiness: call for evidence on the expansion of the 2009 Carbon Capture Readiness requirements
Department for Business, Energy & Industrial Strategy and Welsh Government | 14 July 2021
In the 2020 Energy white paper, government committed to consult on an expansion to the 2009 Carbon Capture Readiness requirements. This call for evidence represents the first stage of that consultation process. Initial views and evidence are sought on the expansion of the requirements, including the removal of the 300MW threshold and the inclusion of low-carbon hydrogen as an additional decarbonisation technology. This consultation closes at 11:45pm on 22 September 2021

Green Finance Institute launches Local Climate Bonds
Green Finance Institute | 13 July 2021
The Green Finance Institute launches a national campaign to help local authorities issue a type of municipal finance investment – Local Climate Bonds. The campaign will target all 404 local authorities in the UK, of which over 70% have declared a climate emergency, helping them bring to market this retail investment product – a cost-effective way for them to fund hundreds of green local projects in the run-up to and beyond the critically important COP26 summit in November.

Climate change: Net zero transition must be fair, say MPs
Business, Energy and Industrial Strategy Committee | 8 July 2021
The Government should follow the principles set out by Climate Assembly UK and ensure fairness underpins the transition to net zero, says the Business, Energy and Industrial Strategy (BEIS) Committee in a report published today. The report urges the Government to come forward with the Net Zero Review as a matter of priority, and to do so along with the Net Zero Strategy, to ensure there is genuine consultation and engagement with the public, businesses and industry to drive forward efforts to decarbonise.

Jet Zero Council keeps up momentum with £3m government funding for zero emission flight infrastructure as UK pioneers first-ever net zero carbon freighter flights
Department for Transport and Department for Business, Energy & Industrial Strategy | 30 June 2021
Government launches first round of £3m Zero Emission Flight Infrastructure competition, supporting development of infrastructure required to aid electric and hydrogen aircraft such as charge points for planes. This follows on from news that members of the Jet Zero Council, British Airways, this week carried out the world’s first net zero carbon freighter flights powered by a mix of sustainably sourced waste such as cooking oil. This is set to be the first of many flights with BA ordering 1.2m litres of the fuel.

UK government partners with disability charity to set standards for electric vehicle chargepoints
Department for Transport | 30 June 2021
Accessibility standards to be developed for EV charge points across the UK, allowing disabled drivers to easily identify which models are suitable for their needs.

News

Council policies 'inconsistent' with climate goals - BBC News
BBC News | 13 August 2021
More than a third of English councils support policies that could increase carbon emissions despite having declared a "climate emergency", BBC research suggests. Road building and airport expansion are among examples provided by 45 out of 121 questionnaire respondents who say they have passed climate motions.

Government funding warning on scrapping of green transport schemes
Public Finance | 30 July 2021
The government has threatened councils with a reduction in future funding if they prematurely shelve schemes aimed at reducing car use. 

Blaenau become fourth authority to green-light community bond
Public Finance | 28 July 2021
Blaenau Gwent County Borough Council has become the fourth authority in the UK to approve a community bond to finance carbon reduction projects.

UK's plans to scale battery production 'insufficient for net-zero transition'
Edie | 27 July 2021
The UK Government's plans to support the battery manufacturing sector to scale up are not sufficient to deliver the transition to net-zero, nor to ensure that the UK remains a leader in this market globally, a Lords Committee is warning. In ‘Battery Strategy Goes Flat: Net-Zero Target at Risk’ the House of Lords’ Science and Technology Select Committee warns “Despite recent announcements of UK Gigafactories, the pace and scale of building these facilities will not meet the demand for batteries and automotive manufacturing will most likely move overseas.”

Net Zero: Planning Bill contains ‘nothing to ensure’ new building will help UK reach carbon emissions target
National World | 15 July 2021
The government’s new Planning Bill contains ‘nothing’ to ensure that new buildings will keep the UK in line with Net Zero emissions, the chair of the Climate Change Committee (CCC) has said. Speaking before the Environmental Audit Committee’s evidence session on 15 July, Lord Deben, chair of the CCC claimed that the lack of provisions in the Bill risks the UK falling short of Net Zero before 2050.

Leaders call for new powers to tackle climate change
LocalGov | 13 July 2021
A cross-party group of 32 mayors and local leaders have called for greater powers and resources to deliver net zero. The leaders have signed a joint statement calling for a 'Power Shift' from Whitehall to local and regional authorities to shape local energy markets, decarbonise transport, and tackle emissions from homes and offices. The joint communique calls for a new Net Zero Local Powers Bill to cement new powers alongside new reporting requirements on emissions.

Net Zero Local Leadership Communique: Delivering a Net Zero UK
UK 100 | 13 July 2021
A communiqué signed by a group of 32 cross-party Mayors and local leaders from across the UK calls for a ‘Power Shift’ from Whitehall so that local and regional authorities can deliver Net Zero.

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Delivering Value

Council finances are unsustainable

There has been review and reflection in recent months following the latest Section 114 report being issued. It is promising to see to that this has contributed to some traction within parliament to reviewing the current system and the recognition of a wider system reform being required.

The Housing, Communities and Local Government Committee issued its report last month warning of a need for a radical review of local government finances, in particular the urgent pressures on councils funding social care and the pressing need for the Government to implement the Fair Funding Review and business rates reset.

At the same time the Ministry of Housing, Communities and Local Government published plans to strengthen the system of capital finance for councils, brought about by a significant increase in local authority borrowing for commercial investment purposes. The plans include a possible return to statutory capital borrowing caps on councils exposing themselves to excessive risk.

This comes as Luton Borough Council has agreed to increase its capital borrowing limit to £1bn due to the ‘devastating impact’ of the Covid-19 pandemic on the aviation industry and its wholly owned company London Luton Airport.

What is needed in the short to medium term, however, is support to manage the rather pressing need to tackle the crises that continues to loom in spending across all areas on a national basis. The need for authorities to utilise reserves for managing core spending is unsustainable and as the country approaches the challenges of a winter wave of Covid-19 and flu infections, supporting the social care sector becomes even more paramount.

Local authorities continue to manage the public health challenges over the past year with resilience, and at the same time looking to the future of managing budgetary pressures with enterprise as see a mixed national approach.

Meanwhile, July saw the highest borrowing from the Public Works Loans Board (PWLB) in 2021 to date as interest rates fell and councils looked to get capital projects back on track and restart building works use, with some authorities using the lower long-term borrowing rates to refinance existing debt. Overall, council's borrowed just under £1.1bn from the facility in July.  The City of Edinburgh Council took out three separate loans totalling £140m and Thurrock also took out one £150m two-year loan, part of plans announced earlier this year to refinance debt held with other local authorities, to take advantage of lower interest rates.

In the past week, the Government has also responded to the Public Accounts Committee’s report on the impacts of Covid-19 on local government finance, with potentially greater reporting on use of reserves on the way!

Publications & Guidance

Boosting value for money in the council finance system
Ministry of Housing, Communities & Local Government | 28 July 2021
Plans to strengthen council finances, reduce risk to public funds and ensure councils are delivering value for money for taxpayers have been published by the government. Changes to the capital finance system will see improvements in the way that risks are monitored and will drive effective decision-making and ensure council funds are spent effectively.

Ombudsman annual review highlights widening cracks in council complaints systems
Local Government and Social Care Ombudsman | 28 July 2021
The ‘widening cracks’ in local government complaint handling are being highlighted in the Local Government and Social Care Ombudsman’s annual review of complaints 2020-2021. Over the past year, the Ombudsman has upheld a greater proportion of investigations – 67% – more than ever before. This continues an upward trend since the Ombudsman started publishing its uphold rate. Despite being closed to new complaints at the height of the first Covid-19 lockdown, and so registering fewer complaints than recent years, the Ombudsman still received 11,830 complaints and enquiries from members of the public.

Improving cross-government functions and digital delivery
Cabinet Office | 22 July 2021
The government has published two independently-produced reports that provide additional context to the recently published Declaration of Government Reform.

The reports are:

The independent reports include recommendations on how to improve the effectiveness of cross-government functions and digital delivery. These are critical to driving reform activity within the cross-government functions, and the reports were invaluable input in finalising the commitments and actions in the Declaration.

Ombudsman raps council for taking too long to change care home charging policy
Local Government and Social Care Ombudsman | 15 July 2021
A Lincolnshire family has been forced to complain to the Local Government and Social Care Ombudsman for the second time about the way a relative’s care home fees were charged because the county council failed to improve its policies quickly enough. The woman had already complained to the Ombudsman in 2017 after the council’s practice of allowing care homes to collect third-party top-up fees on its behalf led to confusion when her father went into a care home. At the time, the Ombudsman said this practice left families at the mercy of loved ones being evicted when they could no longer afford the fees, and was not in line with the Care Act. The council initially disagreed with the Ombudsman’s findings. It later agreed to implement a new charging policy, in November 2020, in which the council would collect the top-up fees and then pass these on to care homes.

London council to revise its social care charging policy following Ombudsman’s investigation
The Local Government and Social Care Ombudsman | 15 July 2021
London Borough of Bexley has agreed to revise its social care charging policy after a man complained to the Local Government and Social Care Ombudsman about the way the authority increased its costs. The man told the Ombudsman the council had increased the amount it charged him in administration costs for it to manage his mother’s domiciliary care package. He said as a result the cost increased by 200%.

Children Act 1989: care planning, placement and case review
Department for Education | 8 July 2021
Statutory guidance about local authority support to children and families. Updated: Added The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review 2021.

City of Wolverhampton Council to improve its adoption recruitment process
The Local Government and Social Care Ombudsman | 8 July 2021
Wolverhampton council has agreed to ensure its adoption recruitment procedure adheres to statutory guidance, following an Ombudsman investigation. The move has come following a woman’s complaint about the way she was assessed and rejected for adoption by an agency acting on the council’s behalf. The Ombudsman found the agency carried out an initial assessment of the woman before she applied to become an adopter, predetermining the success of the application. This came after the woman enquired with the agency about adopting after attending one its information sessions. Statutory guidance states assessments should be made only after people have formally applied to adopt.

News

Inter-council lending drops sharply | Public Finance
Public Finance | 13 August 2021
Short-term lending between local authorities dropped by more than 10% in the first quarter of this year, according to government figures. In the three months to June, councils borrowed £9.9bn in short-term loans from each other, a sharp reduction on the £11.3bn borrowed in the final quarter of 2020-21, according to new data.

Covid-19 leads to 5% drop in value of Spelthorne's commercial portfolio
Public Finance | 11 August 2021
The value of Spelthorne Borough Council’s commercial portfolio shrank by 5% last year, as Covid-19 hit property prices. The council has been the most high-profile authority using cheap government borrowing to buy property – taking ownership of close to £1bn of assets in recent years.

PWLB borrowing booms as councils restart building projects
Public Finance | 6 August 2021
Local authorities in the UK borrowed more than £1bn from the Public Works Loans Board last month, as demand returned to the facility following Covid-19.

Warrington commercial portfolio tops £500m
Public Finance | 6 August 2021
Warrington has purchased 13 commercial property assets in Greater Manchester for income purposes since 2015-16, and because only 5% of the portfolio is focused on retail and leisure, the pandemic had little impact on performance. Despite Covid-19’s effect on the UK economy, the value of the council’s portfolio rose slightly by 0.40% year-on-year, a council report discussed at an audit and corporate governance meeting last month said.

MPs call for ‘yellow card’ measure to precede section 114s
Local Government Chronicle (LGC) | 30 July 2021
Chief financial officers should be able to use a “yellow card” to highlight financial difficulties before having to issue a section 114 notice, MPs have said.

Government considers stricter capital borrowing caps |
Local Government Chronicle (LGC) | 30 July 2021
The government is developing a new suite of interventions for councils taking excessive financial risks, which could include a more robust application of statutory borrowing caps.

North East councils say children's social care unsustainable - BBC News
BBC News | 28 July
Children's social care in England is failing, particularly in the North East, 12 councils have said. Child poverty needs to be ended and money invested back into councils' social care teams, the North East authorities said. The councils are submitting their North East Regional Care Report to the Independent Review of Children's Social Care launched by the government.

Borough set to focus on remote working to reduce office space
Public Finance | 22 July 2021
Tamworth Borough Council is the latest council to propose reducing its office space to help tackle budget pressures following Covid-19. As part of the authority’s Recovery and Reset programme, its cabinet will vote on proposal to sell its current headquarters at Marmion House next week, as it plans to move to hybrid working.

Covid sparks 6% rise in spend with external suppliers | Local Government Chronicle (LGC) (lgcplus.com)
Local Government Chronicle (LGC) | 21 July 2021
Councils last year spent an extra £1.9bn with third-party suppliers on supporting vulnerable people and on public health as they sought to boost their pandemic response.

Mets predict looming cost pressures of more than £400m
The Local Government and Social Care Ombudsman | 16 July 2021
Metropolitan councils are predicting more than £400m of cost pressures this winter, with their budget shortfall for the whole financial year now expected to exceed £500m after government grant funding is taken into account.

Reserves used to meet ‘avalanche of need
LocalGov | 14 July 2021
A third of councils have resorted to using reserves to meet adult care overspends in response to an ‘avalanche of need’, a survey has found. The Association of Directors of Adult Social Services spring survey, published today, found that 34% of councils funded overspends in 2020-21 using reserves. This figure has surged from 1% in 2016-17 and 4% in 2018-19 while three-quarters reported using COVID-19 funding to bridge budget gaps.

£100m plan to slash council’s office space by three quarters
Public Finance | 14 July 2021
A unitary authority has unveiled plans to spend more than £100m on slashing its office space by three quarters, enabled by a rise in home working following Covid-19. Cornwall Council’s cabinet will next week vote on plans which would see the authority’s operational estate shrink from 200 buildings to between 50 and 60.Capital spending on the plan is estimated at £105m over five years, leading to annual revenue savings of £6m a year, release assets worth £25m and reduce a maintenance backlog by £32m.

Council set to close offices in work-from-home drive
Public Finance | 13 July 2021
A Home Counties council is set to close of two of its offices and pay staff working from home a bonus of £150 a year under plans expected to save it up to £200,000 a year. West Berkshire Council’s executive will vote on the proposals, introduced in response to Covid-19. The council says that closing the offices could save it £400,000 a year, while the work-from-home bonus would cost it around £150,000 each year.

Council finances unsustainable without reform, say MPs
Housing, Communities and Local Government Committee | 19 July 2021
Reforms are needed to ensure the sustainability of local government finances, including an urgent solution to the funding of social care in England, says the Housing, Communities and Local Government Committee in a new report published. The report Local authority financial sustainability and the section 114 regime recognises councils have faced a variety of budget pressures in recent years, including increased demand for services, especially social care, and that these financial challenges have been exacerbated by Covid-19.

Cardiff Council to manage procurement services for Monmouthshire
LocalGov | 8 July 2021
Cardiff Council will manage Monmouthshire County Council's procurement operations and functions for the next three years. The move will allow both authorities to combine resources, helping to drive the recovery of their local economies. Under the agreement, Cardiff Council will deliver the leadership and management of Monmouthshire's procurement function and provide technical capability and expertise to support the delivery of the contract pipeline.

UK councils failing to provide ‘pauper’s funerals’, investigation reveals
Guardian | 6 July 2021
Councils in England and Wales are abdicating their legal responsibility to provide so-called “pauper’s funerals,” often turning away low-income families who cannot afford to pay for relatives to be buried or cremated, according to Quaker Social Action. The anti-poverty charity said its “mystery shopping” investigation into 40 local authorities’ approach to public health funerals in urban areas of the UK found 10 did not carry out their legal duty, and two-thirds did not follow government guidance. Under the Public Health (Control of Disease) Act 1984, councils in England and Wales are required to provide public health funerals to bury or cremate the body of anyone who has died alone in poverty, or whose relatives cannot afford a funeral.

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Place & Growth

ASB injunctions – new guidance on ‘without notice’ applications 

Earlier this year, the courts gave housing practitioners helpful guidance on the approach to be taken when applying for an ASB injunction on a without notice basis. In one particular case, a housing association sought an injunction against a tenant and his son, based mainly on allegations of ASB that had been made by two neighbours.

The Judge summarised the established legal principles that should be followed by any social landlord (and their advocates) when bringing an application on a without notice basis:-

  • It is the claimant’s duty to make full and accurate disclosure of all material facts at the without notice hearing;
  • Material facts are those which it is material for the judge to know in deciding whether to grant the injunction or not.
  • The evidence put before the court must not have the effect of misleading the court in any material way;
  • The court must be able to rely on the claimant to present the case in a fair and even-handed manner, flagging the arguments that the defendant might have made if present at the hearing;
  • The judge must have confidence in the thoroughness and objectivity of the claimant’s case; and
  • The claimant must make proper enquiries before making the application, including investigating the facts underpinning its case and any potential defences available.

This case is a useful reminder of what the Courts might expect when dealing with a without notice injunction application. Often, such cases are dealt with very quickly (sometimes within hours of the application being issued) and without notice injunctions are regularly granted in circumstances where the evidence is serious enough to warrant it. However, the case is a reminder that the courts will expect social landlords (i) to weigh up, so far as possible, all of the relevant factors before deciding whether to apply without notice or on notice, and (ii) to ensure that the case that is presented to the court on a without notice basis is fair, even-handed and allows the court to understand any obvious point that the defendant would be likely to make in defence of his/her position.

Publications & Guidance

DfT launches £338m package to boost active travel
Department for Transport | 30 July 2021
Government increases cycling and walking budget announced at the Spending Review to £338m. Funding for infrastructure upgrades, changes to The Highway Code and new requirements to ensure that active travel schemes' effects are properly assessed.

Mayor of London funds 35 projects to protect future of high streets
Mayor of London | 21 July 2021
The Mayor of London, Sadiq Khan has today announced funding for innovative projects all across the capital aimed at ensuring London’s high streets can flourish and thrive as we emerge from the pandemic. In partnership with councils, business groups and other local organisations 35 exemplar projects will be given seed funding by the Mayor of £20k each, to address issues such as bringing vacant buildings into use, protecting cultural spaces, boosting community business and supporting employment on the high street.

Councillor Handbook: Taxi and PHV Licensing
Local Government Association | 20 July 2021
Taxis and Private Hire Vehicles (PHVs) are vital to our communities; whether it’s the iconic black cab in our cities or the flexible minicab in a rural district. As elected members, we are responsible for ensuring the public travel safely and receive a good level of service, and that our systems attract good, reputable drivers. This handbook will help you 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, but is not a replacement for the training provided by your own authority.

National Planning Policy Framework
Ministry of Housing, Communities & Local Government | 20 July 2021
The National Planning Policy Framework was revised on 20 July 2021 and sets out the government’s planning policies for England and how these are expected to be applied. This revised Framework replaces the previous National Planning Policy Framework published in March 2012, revised in July 2018 and updated in February 2019.

Reshaping Spaces: Building Back Better
Centre for Policy Studies | 20 July 2021
Even before Covid, 25-40% of retail space was no longer viable or needed. Yet councils are doing little to ensure these vacant properties are being converted or redesignated. Pre-pandemic, the amount of empty commercial property in the North East and North West was nearly double the amount of London and the South East. This picture will only have worsened after 18 months of closures and reduced footfall. A new report by the Centre for Policy Studies shows that if this retail space could be repurposed, it could create around 500,000 homes, or more if the space were converted into flats. ‘Reshaping Spaces’ also shows how allowing for mixed use regeneration could unleash tens of billions in private finance to “build back better” and level up left-behind high streets and commercial spaces across the UK.

Help with anti-social behaviour for social housing tenants
Ministry of Housing, Communities & Local Government | 19 July 2021
This clarifies the roles of the agencies responsible for tackling anti-social behaviour and the help and support available for tenants.

Community Ownership Fund: prospectus
Ministry of Housing, Communities & Local Government | 15 July 2021
The Community Ownership Fund bidding prospectus provides detailed guidance on the purpose of the fund, eligibility criteria, funding and support assessment criteria and the decision-making process. The government is providing £150m over four years to support community groups in England, Scotland, Wales and Northern Ireland to take ownership of assets and amenities at risk of being lost. Voluntary and community groups can bid for match funding to acquire important assets and run them for the benefit of the local community. The Fund will run until 2024/25 and there will be at least eight bidding rounds in total.  This prospectus contains details for Round One.

Town Deals: full list of 101 offers
Ministry of Housing, Communities & Local Government | 15 July 2021
A list of the confirmed Town Deal offers for all 101 places invited to develop proposals as part of government’s Towns Fund.

Consultation on proposed changes to the 2022 Accounting Direction
Regulator of Social Housing | 14 July 2021
The Regulator of Social Housing is proposing to update the existing Accounting Direction. This consultation closes at 6:30pm on 21 September 2021.

The future of the planning system and the upcoming Planning Bill
Local Government Association | 13 July 2021
The LGA continues to campaign for a locally led planning system and this is particularly important as we rebuild and recover from Covid-19. 

Partnerships for People and Place
Ministry of Housing, Communities & Local Government | 12 July 2021
Guidance setting out the aims and objectives of the Partnerships for People and Place pilot and inviting local authorities to submit an expression of interest.

Local Nature Recovery Strategy pilots: lessons learned
Department for Environment, Food & Rural Affairs | 12 July 2021
This report summarises the main findings from the 5 Local Nature Recovery Strategy (LNRS) pilots, which ran from August 2020 until May 2021.

Retained Right to Buy receipts and their use for replacement supply: guidance
Ministry of Housing, Communities & Local Government | 8 July 2021
This document provides guidance on how local authorities can use the money raised from Right to Buy sales to deliver replacement homes.

New guidance issued on complaint handling for governing bodies
The Housing Ombudsman | 6 July 2021
New guidance issued on the effective involvement of board members and councillors, who have an important role in promoting a positive complaints culture within their organisations. The guidance shares best practice, outlines our expectations of governing bodies and sets out how complaints information can support them to improve service delivery.

Build back local: Councils set out post-pandemic recovery vision
Local Government Association | 6 July 2021

At its virtual Annual Conference, the LGA launched its Build back local campaign to demonstrate the vital role councils must be able to play to help communities recover from the devastating social and economic impact of the pandemic:

  • By working together as equal partners, local and central government can achieve our shared ambition to level up communities that feel left behind by investing in people and transforming places across all parts of the country.
  • Ahead of the forthcoming Spending Review, initial LGA analysis shows councils face average extra annual cost pressures of £2.5bn just to maintain services at their current level of access and quality.
  • However, it not just about money - devolving and empowering local government in areas such as education, special educational needs and disabilities, skills and planning can deliver more for our residents and communities.

More support for victims of domestic abuse at risk of homelessness
Ministry of Housing, Communities & Local Government | 5 July 2021
Councils to now give priority to finding accommodation for victims who are homeless due to domestic abuse. Under the Domestic Abuse Act councils will have to find accommodation for people made homeless through domestic abuse, helping to ensure victims do not remain with their abuser.

News

Council purchases mothballed theme park
LocalGov | 3 August 2021
Lancaster City Council has stepped in to purchase Morecambe’s derelict theme park, Frontierland, in an effort to kick start its regeneration. Frontierland, which closed 20 years ago, has seen a number of failed re-development attempts by the private sector. Most recently a retail-led scheme with a restaurant, pub, and hotel was proposed and approved by the city council. However, planning permission has since expired. The city council has now purchased the land and says it will develop its regeneration plans in consultation with stakeholders.

Thousands of children stuck in temporary accommodation this summer, councils warn
LocalGov | 2 August 2021
Nearly 120,000 children in England will be spending the summer holidays living in temporary accommodation, official figures reveal. The Local Government Association (LGA) said the number of children living in temporary accommodation over the summer holidays would be enough to fill more than 4,5000 classrooms. The LGA said councils in England spent £142m placing homeless households in bed and breakfasts last year, an increase of 430% from 2010/11. It is calling on the Government to give councils more powers to deliver 100,000 new social homes a year, which would help the Government to meet a third of its annual housing target and reduce homelessness.

Planning reforms 80% of shops on high streets could be lost
LocalGov | 2 August 2021
New research has warned 80% of shops and other commercial premises on high streets across England could be lost under the expansion of permitted development rights. The report, published by the Town and Country Planning Association and University College London, warns the changes to planning law could have a 'devastating impact' on high streets and town centres.

MPs call for ‘long overdue’ reform of council tax property values in England
Guardian | 19 July 2021
MPs are urging the government to carry out a “long overdue” reform of council tax property values in England. The housing, communities and local government committee said the tax was becoming increasingly regressive to the detriment of more deprived areas. The committee said change should be part of a wider programme of reform to set local government finances on a sustainable footing.

Mayor of London to offer boroughs ‘Right to Buy-back’ funding to boost supply of council homes
Local Government Lawyer | 13 July 2021
The Mayor of London, Sadiq Khan, is to offer boroughs funding to purchase homes previously sold through the Right to Buy. The funding for this programme is part of the Affordable Homes Programme 2016-2023. Acquisitions funded in this way will have to be completed by March 2023. Buying back properties sold under the Right to Buy is stated as the “primary objective” of the funding, but it can be used to purchase any market properties within the borough boundary. The housing bought back in this way will subsequently be let at social rent levels or used as accommodation for homeless families. All of the properties must meet the Government’s Decent Homes Standard.

The Domestic Abuse Act 2021: What does it mean for social housing providers?
Local Government Lawyer | 8 July 2021
The Domestic Abuse Act  received royal assent on 29 April 2021 following a much-delayed journey through Parliament. The Act will have important ramifications for social housing providers – including changes for homelessness under Part VII of the Housing Act 1996 which came into effect on 5 July 2021.

Cases

London borough secures possession order against groups camping on Clapham Common
Local Government Lawyer | 13 July 2021
In London Borough of Lambeth v Grant & Ors (Rev 1) [2021] EWHC 1962 (QB) the London Borough of Lambeth has secured an order for possession against occupiers camping on Clapham Common. The council is the freehold owner of Clapham Common, a small part of which was being occupied by two groups: the Campaign for Truth and Justice; and “Lovedown”. Lambeth said the camp was generating complaints from local residents and sought to recover possession.

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Governance & Reorganisation

Counties Assembling Devolution Bids

The deadline for authorities to submit expressions of interest in devolution to the Secretary of State for Communities and Local Government, Robert Jenrick, was Friday 13 August 2021 and far more authorities than expected are believed to have done so.  Despite the significant interest, there is a lack of detail and information around the nature of any deals that may be on offer.  This is likely to be due in no small part to the fact that the Secretary of State has openly said that this is an emerging policy area, with other sources stating that the Government is ‘incredibly open to ideas’.

As with everything at the moment, the Covid-19 pandemic plays its part and the Government is likely to be looking at devolution as a way in which authorities can work together and share services in order to save money.  A boost to the idea of devolution and a key factor in encouraging engagement by authorities has been the Government’s explicit clarification that local government reorganisation was not a pre-requisite for devolution.  A number of authorities appear to have been reticent to engage in talks around co-operation and the sharing of services, for fear that it may lead to all-out reorganisation.

With the clarification from the Government around reorganisation, the idea of devolution will be likely to chime with district authorities who are already seeking efficiencies as a result of the pandemic.  Ministers have said that key factors in securing any devolution deals will be the need to demonstrate strong and accountable leadership, have a sensible economic geographical area, lead to improved efficiency and governance, include significant reform and be replicable across other areas.  The hope of Government appears to be that authorities seeking efficiencies will be able to focus on delivery and will not frustrate progress with any concerns regarding reorganisation as a result.

With the economic damage caused by the pandemic almost certain to be front and centre for some time, it is likely that the benefits of devolution to authorities, beyond the efficiencies created, will be in the form of increased powers and freedoms.  Any authorities pursuing devolution as a way to secure additional funds are likely to be disappointed.

Legislation

Elections Bill
22 July 2021
A Bill to make provision about the administration and conduct of elections, including provision designed to strengthen the integrity of the electoral process; about overseas electors; about voting and candidacy rights of EU citizens; about the designation of a strategy and policy statement for the Electoral Commission; about the membership of the Speaker's Committee; about the Electoral Commission's functions in relation to criminal proceedings; about financial information to be provided by a political party on applying for registration; for preventing a person being registered as a political party and being a recognised non-party campaigner at the same time; about regulation of expenditure for political purposes; about disqualification of offenders for holding elective offices; about information to be included in electronic campaigning material; and for connected purposes.

The Norfolk (Electoral Changes) Order 2021 (Draft)
The Order provides for new county divisions and numbers of councillors for Norfolk at the county elections in 2025. Comes into force partly on 15 October 2024.

Publications & Guidance

Local Authority Capital Finance Framework: planned improvements
Ministry of Housing, Communities & Local Government | 28 July 2021
This sets out our proposals for local authority capital finance and provides an update on our work so far. It clarifies the objectives, what they will do to meet them and what is expected from local authorities.

Local by default
Association for Public Service Excellence | July 2021
The final report of the APSE Local Government Commission 2030, set up to explore what the next decade could hold for a revitalised local government, has called for a system reset and at its heart a new constitutional settlement for local councils.  UK local government is facing its biggest economic, political and social challenges since the second world war. Alongside multiple public policy crisis in finances, adult care, housing and climate change the Commissioners found that the system of itself was hindered by a lack of powers and resources, and the centralisation of decision making, which mistrusts and hinders local councils, and ignores their democratic legitimacy.

Unitary local government
House of Commons Library | 22 July 2021
A briefing on unitary local government in England, proposals for creating new unitary authorities, Government policy, historical practice, and academic analysis. This briefing paper provides a guide to the concept of ‘unitary local government’, in the context of debates over local government restructuring in England in 2019 and 2020.

Next steps for new unitary councils in Cumbria, North Yorkshire and Somerset
Housing, Communities and Local Government Committee | 21 July 2021
Plans for new unitary councils in Cumbria, North Yorkshire and Somerset have taken an important step forward today following approval from Local Government Secretary Robert Jenrick. The plans will move the areas away from a two-tier system of county and district councils to unitary councils, strengthening local leadership and transforming the way services are delivered in these areas. And comment from LocalGov.

Council finances unsustainable without reform, say MPs
Housing, Communities and Local Government Committee | 19 July 2021
Reforms are needed to ensure the sustainability of local government finances, including an urgent solution to the funding of social care in England, says the Housing, Communities and Local Government Committee. The report Local authority financial sustainability and the section 114 regime recognises councils have faced a variety of budget pressures in recent years, including increased demand for services, especially social care, and that these financial challenges have been exacerbated by Covid-19.

Code of Practice on the Management of Records issued under section 46 the Freedom of Information Act 2000
The National Archives and Department for Digital, Culture, Media & Sport | 15 July 2021
Code of Practice issued under section 46 of the Freedom of Information Act by the Secretary of State for Digital, Culture, Media and Sport providing guidance to public authorities on the keeping, management and destruction of records. The Code of Practice is a technical document aimed at supporting information management professionals in relevant authorities to discharge their duties under Freedom of Information legislation. The Code of Practice has been revised and updated by The National Archives to provide guidance to relevant authorities that reflects contemporary information management practice and the modern digital working environment. It also clarifies the basis on which the Advisory Council on National Records and Archives operates.

System of local government audit close to “breaking point”
Commons Public Accounts Committee | 14 July 2021
In a report published by the Commons Public Accounts Committee the says Government’s oversight of local government audit has become “increasingly complacent” with less than half of local authority audits meeting the deadline for completion in 2019-20, and half of audits examined by the Financial Reporting Council (FRC) needing “more than limited” improvement. The local audit market is “now entirely reliant upon only eight firms, two of which are responsible for up to 70% of local authority audits.”

Guidance on Local Government Association Model Councillor Code of Conduct
Local Government Association | 8 July 2021
Supporting guidance aimed to help understanding and consistency of approach towards the code. The code, together with the guidance, has been designed to protect our democratic role, encourage good conduct, and safeguard the public’s trust and confidence in the role of councillor in local government.

Restoring trust in audit and corporate governance. Consultation on the government’s proposals. LGA response.
Local Government Association | 7 July 2021
Local government is one of the best regulated and most transparent parts of the public sector in this country. As democratically elected bodies, councils understand the need for good governance, of doing the right things at the right time and to spend public money well and wisely, and to be seen to be doing so. The system is a complex web of checks and balances, ensuring that decisions are made in public by default and the outcomes of those decisions are also made plain. Despite escalating pressures, examples of councils failing in their responsibilities remain rare. Councils are complex organisations, and the LGA together with the sector, is committed to ensuring that the way public money is spent, and local decisions are made is as clear and relevant to local residents as possible. External audit is an important part of this system. External audit of local government currently faces a number of problems. The local government audit market is very fragile. The late delivery of many 2019/20 audit opinions is concerning, and it is apparent that that the system has “worsened” and it seems that missing audit deadlines has become normal. 

Independent reviewers appointed for councils requesting financial support
Ministry of Housing, Communities & Local Government | 30 June 2021
The government has appointed independent reviewers to undertake assurance reviews into eight councils, following decisions earlier this year to provide exceptional financial support to these authorities. The government has formally appointed the Chartered Institute of Public Finance and Accountancy (CIPFA) to undertake the financial element of these external assurance reviews. This follows a decision to provide exceptional financial support packages to eight councils subject to an external review. These authorities are Bexley, Copeland, Eastbourne, Luton, Peterborough, Redcar & Cleveland, Slough and Wirral councils.

News

North Yorks presses for devo talks as districts accept county unitary
Local Government Chronicle | 13 August 2021
Councils across North Yorkshire have urged the government not to wait until after a planned reorganisation before beginning devolution negotiations, saying “now is the moment” for discussions to begin.

PWLB borrowing booms as councils restart building projects
Public Finance | 6 August 2021
Local authorities in the UK borrowed more than £1bn from the Public Works Loans Board in July, as demand returned to the facility following Covid-19. Last month, 71 loans were taken out by public bodies, at an average of £15m, with the overall amount borrowed exceeding the previous three months' totals combined, according to data from the Debt Management Office. 

Authority forced to rent facilities to hold Covid-safe meetings
Public Finance | 4 August 2021
The leader of a local authority forced to spend thousands of pounds hiring facilities to hold Covid-19-safe meetings has called on the government to rethink its decision to effectively ban remote sessions.

Affordable housing grant oversight ‘not fit for purpose’ at city council
Public Finance | 30 July 2021
Poorly maintained records of grants given out for affordable rented homes in Bristol meant data was unreliable, according to a highly critical report from the city council’s internal auditors. The grants, worth £26.8m (of which £19.6m has so far been paid out since the scheme began in 2017) were given to registered housing providers to build 505 homes for rent. But the authority’s internal auditors were only able to give limited assurance that the risks associated with the grants were managed well, after management raised concerns over the process.

“Legal advice… stating the importance of a robust monitoring process had not been fully implemented and the council could not be assured that grants provided did not constitute overcompensation,” the auditors warned in a report to Bristol City Council’s audit committee.

Government threatens borrowing cap return
LocalGov | 29 July 2021
The Government has threatened to apply statutory borrowing caps on councils that continue to expose themselves to excessive risk. A policy paper from the Ministry of Housing, Communities and Local Government (MHCLG) said the evidence was ‘clear that the system is failing in some places’ and vowed to make ‘further changes to how the prudential system works if problematic behaviour continues’. And comment from Public Finance.

Borough to sell properties to help meet pressures
Public Finance | 26 July 2021
Slough Borough Council will need to recoup hundreds of millions of pounds from property sales to help fill a budget deficit following this month’s Section 114 notice, according to its finance chief.

Auditors lament major ‘governance failings’ at council
Public Finance | 27 July 2021
Internal auditors have criticised governance at a South Wales council after it awarded a contract to a charity linked to members. Porthcawl Town Council awarded a £50,000 contract to now insolvent Credu Charity for maintenance services in 2020-21, which had two councillors on its board, an internal audit compiled by Auditing Solutions said.The award was given without a formal tender process, which is required for contracts above £25,000, as part of the council’s standing orders and financial regulations.

£100m council mall purchase 'light on systematic analysis'
Public Finance | 26 July 2021
A borough council failed to carry out proper investigations before spending £100m on a shopping centre and surrounding properties in its area, according to an independent report. In 2016, Surrey Heath Borough Council approved plans to acquire a shopping centre and surrounding properties for a major regeneration in Camberley. However, the council did not have a robust business case and paid “at the top end of the market” for the centre, according to a report by real-estate firm Avison Young.

Prudential code compliance needs ‘statutory footing’
Public Finance | 19 July 2021
Councils should be legally required to comply with CIPFA's Prudential Code to help curb risky investments, according to MPs. The Prudential Code outlines the rules for capital investment, to ensure plans are affordable and sustainable, but currently councils only have to 'have regard' for it in making financial decisions. However, a Housing Communities and Local Government Committee report published today called for tighter adherence in response to some councils borrowing huge sums to invest in commercial property outside of their boundaries. The report said: “We recommend that the government legislate to make compliance with the prudential code by local authorities a statutory duty".

New deals on way for counties as part of more flexible approach to devolution in England, says Prime Minister
Local Government Lawyer | 15 July 2021
The Prime Minister has signalled that the Government will adopt a more flexible approach devolution in England, saying “we need to re-write the rulebook”, with new deals for the counties. In a ‘Levelling-Up’ speech in the West Midlands, Boris Johnson said: “There is no reason why our great counties cannot benefit from the same powers we have devolved to city leaders so that they can take charge of levelling up local infrastructure like the bypass they desperately want to end congestion and pollution and to unlock new job or new bus routes plied by clean green buses because they get the chance to control the bus routes. “Or they can level up the skills of the people in their area because they know what local business needs, and they are working with them every day and of course you can see risk and the catch in all this, we have to learn lessons of the last 50 years.” The PM said the Government would not, however, be proceeding with a one size fits all template.

Dudley bids for city status
LocalGov | 15 July 2021
Dudley Council will be putting forward a bid for city status as part of the Queen’s Platinum Jubilee celebrations next year. The Government is inviting bids for city and Lord Mayor status to mark 70 years of the Queen’s reign in 2022. The council said it would highlight the fact it was first referenced in the Domesday book of 1086 and has a population more than three times the size of other cities.

Covid leaves UK councils with £3bn financial black hole
BBC News | 9 July 2021
UK councils face a £3bn black hole in their budgets as they emerge from the pandemic, a BBC investigation into their finances can reveal. Some local authorities were struggling to carry out statutory duties and were at risk of bankruptcy, a local government expert said. And ten councils have asked to borrow £300m of emergency money from the government to plug financial holes.

Council pauses non-essential spending following Section 114 notice
Slough Borough Council | 2 July 2021
Slough Borough Council has announced it will be pausing non-essential spending, in response to a report by the Director of Finance into the state of the council’s finances. In addition, the council has formally notified the Ministry of Housing, Communities and Local Government (MHCLG) of the Section 114 Notice and will be seeking financial support from the Ministry. The move follows months of action by the council to gain a full understanding of, and begin to tackle, the financial challenges it is facing, and detailed discussions on moves to match council resources with demand for services.

Cases

High Court quashes decision by deputy monitoring officer that parish councillor had breached code of conduct
Local Government Lawyer | 21 July 2021
A parish councillor has won a High Court challenge over a decision by a Deputy Monitoring Officer (DMO) to uphold a complaint that he had breached its Code of Conduct for Members (PC Code). The background to the case of Robinson, R (On the Application Of) v Buckinghamshire Council [2021] EWHC 2014 (Admin) was that Farnham Royal Parish Council had complained about the claimant, Cllr Clive Robinson, to South Bucks Council (whose functions are, following local government reorganisation, now carried out by Buckinghamshire Council). The parish council accused the claimant of breaching paragraph 3.1 of the PC Code (behaving in a respectful way and not acting in a way that could bring the council into disrepute). The principal basis of the challenge was that the decision was in breach of section 6 of the Human Rights Act 1998 as it violated Cllr Robinson’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

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Contract Management

Revised list of “central government authorities” for the purposes of the Public Contracts Regulations – now including NHS Foundation Trusts

The Public Contracts Regulations 2015 (PCR) draw a distinction between “central government authorities”, being the Crown and the authorities listed in Schedule 1 of the PCR, and “sub-central contracting authorities” defined as all contracting authorities which are not central government authorities.  For example, local authorities are sub-central authorities.

In practice, the most well-known impact of this distinction is the different financial thresholds triggering the requirement to run a PCR compliant procurement (though there are some limited provisions in the PCR applying to “Below-threshold” procurements, in particular in relation to publication of information on Contracts Finder and assessment of suitability). The current financial threshold for central government authorities procuring public contracts for supplies and services is £122,976. A higher threshold of £189,330 applies to sub-central contracting authorities. 

There are also some flexibilities available only to sub-central authorities, such as use of a Prior Information Notice (PIN) as a call for competition and the ability to set the time limit for receipt of tenders by mutual agreement with all bidders in specified cases.

On 16 August 2021 a new Schedule 1 to the PCR came into force, updating the list of “Central Government Authorities”.

Schedule 1 is now presented in two parts:

  • Part 1 lists “GPA Annex 1 Contracting Authorities”, now aligned with the list of UK central government contracting authorities in the GPA
  • Part 2 lists “Other Central Government Contracting Authorities” which are not listed in GPA but which are considered as central government authorities for the purposes of the PCR.

A particularly notable change is the expanded list of NHS organisations under the Department of Health and Social Care entry, which now refers to the NHS Commissioning Board (known as NHS England) and NHS Foundation Trusts. This is in addition to the NHS Business Services Authority and NHS Trusts which are listed as central government authorities in the current version of Schedule 1. From 16 August 2021, the lower financial threshold applies to all of these organisations and sub-central authority flexibilities are unavailable to them.

There are number of other additions and changes to the Schedule 1 list. Organisations with central government links, in particular, should check the revised Schedule 1 carefully to see if they are listed as central government authorities. Local authorities continue to fall within the definition of sub-central contracting authorities.

You can download a copy of SI 2021 No.872 and explanatory notes from legislation.gov.uk or by following this link.

Publications & Guidance

Concerns raised with Government about commissioning public services
House of Lords Public Services Committee | 30 July 2021
The House of Lords Public Services Committee has written to the Government with its continued concerns on the procurement and commissioning of public services. The Committee remains concerned that the Government’s proposals prioritise competition to the detriment of collaboration among providers of public services, give insufficient recognition to the important role played by the voluntary sector, fail to promote expertise in commissioning and do not align with the Health and Social Care Bill.

Cases

High Court orders expedited trial of procurement challenge over fire brigade protective equipment, refuses to lift automatic suspension
Local Government Lawyer | 5 August 2021
Automatic suspension upheld pending expedited trial ordered by Mrs Justice O’Farrell. The claim concerns a procurement challenge against London Fire Brigade (LFB) by the incumbent supplier of respiratory protective equipment, Draeger Safety UK. Draeger allege breach of the Public Contracts Regulations 15 in LFB’s awarding of the new 10-year contract to MSA Britain Limited (MSA), including inconsistent application of the evaluation criteria and failure to properly investigate MSA’s ‘abnormally low’ bid.

R (on the application of Good Law Project Ltd) v Minister for the Cabinet Office [2021] EWHC 2091 (TCC)
27 July 2021
The Good Law Project brought judicial review proceedings against the Minister for the Cabinet Office, challenging the lawfulness of the award of a contract for supply of policy development and emergency messaging services as part of the UK government’s response to the corona virus pandemic. The Good Law Project sought to rely on evidence contained in two witness statements which the defendant challenged as being expert evidence (rarely admissible in judicial review and procurement cases). The court concluded that, except for nine paragraphs in one of the witness statements (which was adjudged as expert evidence), the challenged evidence was evidence of fact and comment and not expert evidence. However, despite the court’s conclusion that the evidence would be admissible, permission to rely on it was refused because it was deemed irrelevant to the matters before the court.

Transparency in regulated procurements
Local Government Lawyer | 23 July 2021
In Biffa Waste Services Limited v Leicestershire County Council [2021] EWHC 1764 (TCC) the High Court (Joanna Smith J) dismissed Biffa’s application for summary judgment on claims under the Public Contracts Regulations 2015 for breach of the duty of transparency/misrepresentation arising from the conduct of a competitive dialogue procedure relating to the award of a substantial waste processing and services contact with a value of up to £425m.

Judge cites special circumstances in allowing claimant to call expert witness in tender evaluation dispute
Local Government Lawyer | 8 July 2021
A claimant supplier can call on expert witnesses in a procurement dispute with the Secretary of State for Health and Social Care, Mr Justice Fraser has ruled in a case management hearing. He said in Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC 1817 (TCC) that while it was unusual to call an expert in tender evaluation cases there were special circumstances that justified this. The case itself is due to be heard in April 2022. Bop-Me supplies the type IIR surgical mask which is used by care homes and hospitals to protect against viruses.

Good Law Project's PPE claim fails after service blunder
Law Society Gazette | 5 July 2021
Another Good Law Project claim, this time against the Secretary of State for Health and Social Care, has seen Mrs Justice O’Farrell DBE ruling in R (on the application of The Good Law Project) v The Secretary of State for Health and Social Care. The court rejected pleas for an extension of time for serving the claim form after finding the failure to effect valid service was ‘serious and significant’. An application by the defendant to set aside the claim form was successful. The Good Law Project had sought to challenge the lawfulness of the health secretary’s decisions to award contracts for the supply of personal protective equipment to a company called Pharmaceuticals Direct Limited, who were an interested party.

News

Hull City Council formally adopts use of electronic seal
Local Government Lawyer | 16 August 2021
As part of a drive towards use of digital contracts, Hull City Council becomes one of the first councils to formally adopt use of an electronic seal by formal amendment to its constitution. The Council has increased the types of documents it is able to execute through Docusign, its electronic contract system, having taken advantage of digital contracts throughout the Covid-19 pandemic to enable the Council to continue to deliver its business functions remotely.

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Disputes & Regulatory Support

Primary School successfully challenges the Secretary of State for Education’s refusal to revoke an Academy Order

R (Governing Body of Yew Tree Primary School) v Secretary of State for Education [2021] EWHC 2084 (Admin)

Following an Ofsted inspection in January 2019 the school had been graded “inadequate”, forcing the Secretary of State to make an academy order in April 2019. Importantly, the school subsequently made improvements which were supported by the local authority’s school improvement advisor and in October 2019 a further inspection was undertaken by Ofsted pursuant to which the inspectors changed their grading of the school to “requires improvement”.

The school asked the Secretary of State to revoke the academy order using the discretion available to him under s.5D of the Academies Act 2010. The Secretary of State refused on the basis the school was unable to provide a satisfactory Ofsted rating to demonstrate that the academy order was no longer required.

The school argued that the refusal to revoke the academy order was irrational. The school argued that there was clear evidence of sustained improvement at the school and that the circumstances the school was in were exceptional as Covid-19 restrictions had prevented Ofsted inspections from taking place. Furthermore, the decision of whether to revoke the academy order should have been made on the actual performance of the school as opposed to simply the results of Ofsted inspections.

Despite the high burden required to meet the test for irrationality, the court agreed that the decision making was flawed. In his judgment, Gavin Mansfield QC expressed “grave concern” about several aspects of the Secretary of State’s decision, including that the Secretary of State had not engaged with the evidence the school had presented to demonstrate the improvements that had been made since the previous Ofsted inspections. Whilst the Secretary of State was entitled to assess the evidence that the school had presented in reaching his decision, there was no evidence that those facts had been considered and rejected. As this factual background showed clear evidence of continued success in making improvements, the court found that the Secretary of State had applied insufficient weight to these facts in his decision making and too much focus had been placed on the Ofsted inspection grading of October 2019. The judge commented that whilst it was not the Secretary of State’s fault that there was a lack of Ofsted inspections, he should have focussed on the substance of the performance of the school, irrespective of whether or not the school had a “good” Ofsted inspection report to prove it.

This case is interesting as it is notoriously difficult for claimant’s to succeed in bringing irrationality challenges, and serves as a reminder of the importance of good practice particularly when making important and potentially sensitive decisions. 

News

County sets aside £13m for dispute with waste firm

Local Government Chronicle | 12 August 2021
Essex County Council has set aside £13m for possible litigation over a failed waste plant. Its cabinet agreed to earmark the money from the waste reserve to be used as necessary “to resource the resolution of a dispute (including the referring of the dispute to litigation)”. This refers to Essex’s long-running dispute with UBB Waste Essex over a mechanical biological treatment plant in Basildon. The company was jointly owned by waste firm Urbaser and builder Balfour Beatty.

Cumbria to fight Jenrick’s two-unitary decision
Local Government Chronicle | 10 August 2021
Cumbria County Council wrote to Robert Jenrick claiming that the planned reorganisation of local government in the county is illegal, in what could be the first step of a legal challenge against the move. The communities secretary last month backed plans to reorganise the county council and six districts into two new unitary councils, which will have smaller population sizes than the government’s recommended 300,000 minimum floor for new unitaries.

West Midlands primary school wins appeal against academy status
Guardian | 23 July 2021
A primary school in Sandwell has become the first school to win a high court appeal against being forced to turn into an academy, arguing it could not demonstrate its improvement because Ofsted inspections were suspended because of Covid. The governing body of Yew Tree primary school brought a judicial review against the education secretary, Gavin Williamson, after he refused to revoke an academy order imposed on the school in 2019, when it was rated inadequate by Ofsted. In a judgment, Gavin Mansfield QC said he had “grave concern” about several aspects of the decision and there was clear evidence from the school “of both continued efforts to improve and success in achieving those improvements” that appeared to have been disregarded. He said the decision not to revoke the academy order was “irrational” and seemed swayed by a “perceived lack of support for academisation” from the local authority. See also comment from Local Government Lawyer Maintained school wins High Court challenge over refusal by Education Secretary to revoke academy order

Council and bus operator to pay out £109k in damages and costs to religious organisation over refusal to advertise rally
Local Government Lawyer | 21 July 2021
Blackpool Council and its wholly owned company Blackpool Transport Services have been ordered to pay £109,000 in damages and costs to a religious organisation run by evangelist Franklin Graham after refusing to advertise a rally on buses. In April this year HHJ Claire Evans ruled that the council and the bus operator breached Article 14 of the European Convention on Human Rights and discriminated against Mr Graham and the 2018 Festival of Hope in relation to Article 10 rights. She said the council had the burden of proving that interference with their Article 10 rights was justified, and that taking all factors into account, “the balance comes down overwhelmingly in favour of the claimant”.

Grenfell bereaved and survivors bring multimillion pound case to high court
Guardian | 6 July 2021
More than 800 bereaved and survivors from Grenfell Tower and 102 firefighters are seeking up to tens of millions of pounds in compensation from organisations involved in the disastrous refurbishment in a case that has reached the high court.

The victims of the fire on 14 June 2017 and emergency responders have filed civil claims against defendants including Arconic, the US metals giant that made the combustible cladding, Rydon, the main contractor, and the Royal Borough of Kensington and Chelsea, landlord of the 24-storey west London council block.

The bereaved and survivors allege 23 defendants “separately and cumulatively led to or contributed to the disaster” that killed 72 people and left hundreds homeless. The firefighters, some of whom claim they cannot work again as a result of the trauma, are seeking “damages for personal injury and loss… caused by the negligence and/or breach of statutory duty of the defendants”.

Cases

Waste recycling business wins stay in battle with council over appropriate forum to resolve EcoPark dispute
Local Government Lawyer | 22 July 2021
Suez Recycling and Recovery Surrey has won a stay of proceedings in a dispute with Surrey County Council over the provision of waste infrastructure. Alexander Nissen QC, sitting as a judge of the High Court, was asked by Suez for a stay of proceedings under s.9 Arbitration Act 1996. He said in Surrey County Council v Suez Recyling And Recovery Surrey Ltd [2021] EWHC 2015 (TCC): “This is one of those cases where the parties have entered into a number of contracts and it is necessary to determine what they ultimately agreed should be the appropriate forum for dispute resolution.”

Information on selection of academy trust to run schools should be disclosed, tribunal judge finds
Local Government Lawyer | 22 July 2021
Hertfordshire County Council was wrong to withhold information on how an academy trust was chosen to provide schools in Bishop's Stortford and the Information Commissioner had been wrong to agree with the council’s arguments. Those findings came from the First-tier Tribunal (General Regulatory Chamber) in a case brought by local resident Peter Church against the Information Commissioner. Peter Church v Information Commissioner (Allowed) [2021]

Senior council officer fails in harassment claim against local blogger
Local Government Lawyer | 19 July 2021
A series of “unpleasant, personally critical publications” by a blogger about a senior local government officer did not found a successful claim for harassment under the Protection from Harassment Act 1997, a High Court judge has ruled. In McNally v Saunders [2021] EWHC 2012 (QB) Mr Justice Chamberlain granted summary judgment to the defendant, Julian Saunders, also known as ‘The Sandwell Skidder’. However, the judge said nothing he had said should be taken as implying that he considered any of the criticisms made by Mr Saunders of Dr Lisa McNally, Director of Public Health at Sandwell Metropolitan Borough Council, to be justified. “Equally, nothing in this judgment casts any doubt on the effects which she says they have had on her.”

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