01/11/2021
LA Spotlight
Budget impressions
Looks can be deceptive and as lawyers we all know that the devil is in the detail. Writing this the day after the Chancellor’s Autumn Budget initial impressions are reasonably positive for local government (“A sector that was braced for more pain will be feeling…that things could have been worse” from Jonathan Carr-West of LGIU).
A summary of some of the matters that go to the heart of local government and its department DLUHC are set out below. Some increase in revenue funding and a focus on infrastructure spending are the main headlines.
- Revenue funding: “Core spending power for local authorities is estimated to increase by an average of 3% in real-terms each year over the SR21 period.” “The government is providing councils with £4.8bn of new grant funding over the SR21 period for social care and other services.” As for the proposed Business Rates reforms “Local authorities will be fully compensated for all measures announced in the review”. The ability to raise funds through council tax: “the referendum threshold for increases in council tax is expected to remain at 2% per year. In addition, local authorities with social care responsibilities are expected to be able to increase the adult social care precept by up to 1% per year.”
- Infrastructure: significant emphasis placed on the quantum of funds being made available in an array of funding pots/sources. There is no identifiable change to the approach requiring funds to be bid for. Further, no coherent message about how these projects meet Net Zero ambitions (note the criticism over PAD on internal flights) but there is a focus on place. Headlines emphasise: “first 105 places to receive funding for local transport, cultural assets and regeneration from the £4.8bn Levelling Up Fund”; “first 21 projects to receive funding from the £150 million Community Ownership Fund”; “over £2.6bn for the UK Shared Prosperity Fund (UKSPF)”; through the Tows Fund “continued regeneration of some 170 high streets” plus the freeports initiative. Keeping track of the proposed pots of funds is not straightforward but the statement includes £5.7bn for London-style transport settlements in English city regions over five years.
- Climate: despite COP26 and the recent Net Zero Strategy almost silence in the Budget itself. There is, however, more than £1bn allocated to boost electric car charging and manufacturing ahead of Britain’s 2030 ban on the sale of new petrol and diesel cars through the Transport Decarbonisation Plan.
- Skills: various additional funds are being provided across a range of largely existing programmes with commentators stating the piecemeal manner is not delivering for high skill, high wage economy.
- Housing: £11.5bn to build up to 180,000 new affordable homes plus an additional £1.8bn for housing supply. This includes £300m locally-led grant funding that will be distributed to Mayoral Combined Authorities and Local Authorities to unlock smaller brownfield sites for housing. Interestingly, a relatively small sum but an additional £65m investment to improve the planning regime, through a new digital system. Further support and taxes for safe cladding was identified with industry already noting it is likely to be insufficient.
- Care: Following the 7 September announcement of extra funding for health and social care, “The settlement confirms that £3.6bn of £5.4bn) will be routed through local authorities in order to implement the charging reforms and support local authorities to better sustain their local care market by moving towards a fairer cost for care. Further detail will be set out by the government in due course.”
- Devolution/reorganisation: “The Levelling Up White Paper will provide further information on the government’s plans to enable more areas to agree ambitious devolution deals, where there is local support, and to strengthen existing devolution arrangements to ensure local leaders can get on and deliver.” The lack of detail has not been well received from bodies such as IPPR North: Budget fails acid test to level up: IPPR North responds to the Budget and Spending Review | IPPR
- Cyber: A risk that can have material consequences, a relatively small but significant funding pot of “£37.8mn of additional funding over the SR21 period to tackle cyber security challenges facing councils and invest in local authority cyber resilience, protecting vital services and data.”
- Rough sleeping: several initiatives continue including funding the Rough Sleeping Initiative.
- Public sector pay: you will, no doubt, be familiar with the current issues.
Net Zero
Funding to kick start and accelerate domestic housing energy retrofit projects
It is widely acknowledged that the world is facing a climate emergency. The UK was the first major economy in the world to legally commit to bring all greenhouse gas emissions to net zero by 2050. With homes accounting for around 15% of the UK’s carbon emissions and with approximately 80% of the homes that we will be living in in 2050 having been built, strong policy and initiatives to support the decarbonisation of the UK’s housing stock has never been more important.
Equally important is the ability for the housing retrofit market to provide a number of wider social and economic benefits such as tackling fuel poverty (especially given the increasing volatile times for energy costs), improving health and wellbeing and creating a green industry for jobs and skills within the UK.
The Government has recently announced a series of initiatives to fund domestic energy retrofit projects including:
- Public Sector Decarbonisation Scheme: Phase 3 - This scheme supports the Government’s net zero and clean growth goals. The priority is to provide public sector bodies funding for decarbonisation projects where the heating systems are at the end of their working lives and there is an imminent need for replacement, thus working towards delivering carbon emission reductions.
- Wave 1 of the Social Housing Decarbonisation Fund - This fund supports the Prime Minister’s 10 point plan for a green industrial revolution and makes further progress towards delivering the Government’s commitment to invest in the energy performance of homes. The fund will help deliver warm, energy-efficient homes, reduce carbon emissions, tackle fuel poverty, support green jobs, develop the retrofit sector and improve the comfort, health and well-being of social housing tenants.
- Sustainable Warmth competition - This will award funding to Local Authorities to help them upgrade low-income households with energy efficiency installations and low carbon heating. All Local Authorities and Local Energy Hubs in England can apply for funding.
With deadlines for some of these schemes fast approaching, it is important for potential applicants to check they meet the relevant eligibility criteria and prepare applications that fulfil the key objectives of the relevant scheme. For relevant deadlines that have now passed, look out for the next Government waves which is anticipated ahead of COP26 (the United Nations Summit hosted by the UK in November 2021 to agree how countries will deliver on their greenhouse gas reduction commitments) and the Heat and Buildings Strategy also due this year (2021).
How can Bevan Brittan help?
Our Energy team has market leading expertise in the domestic housing energy retrofit sector, including advising Local Authorities and Combined Authorities on a range of projects from whole house (DEEP) retrofit projects to a range of tailored energy efficiency measures.
If you would like to discuss how any of the above schemes or would like to plan for future grant funding initiatives please get in touch with any member of our dedicated team of Energy specialists, including Nathan Bradberry, Thomas Graham and Natalie Cernuschi.
Publications & Guidance
Partnerships Bulletin
Partnership Bulletin have published “Net Zero Partnerships” which provides a snapshot of the UK PPP Net Zero market and considers how public and private sector can work together to help tackle carbon emissions and support the transition to a Net Zero economy. Bevan Brittan were delighted to sponsor this report, which includes an article by Nadeem Arshad (Partner) and Olivia Blessington (Senior Associate) “How can Net Zero be successfully incorporated into the UK PPP market?”
Proposals for heat network zoning
Department for Business, Energy & Industrial Strategy | 8 October 2021
The Government are seeking views on their proposed approach to deliver heat network zoning in England and to identifying areas where heat networks are the most appropriate solution for decarbonising heating. These proposals envisage central and local government working together with industry and local stakeholders to identify and designate areas within which heat networks are the lowest cost, low carbon solution for decarbonising heating.
This consultation is government’s first in what is intended to be a multi-year project developing the necessary legislation and processes for zoning. At this stage, they are seeking views on the broad principles for how heat network zoning should be designed ahead of later consultations which will go into further detail. This consultation closes at 11:45pm on 19 November 2021.
Plans unveiled to decarbonise UK power system by 2035
Department for Business, Energy & Industrial Strategy | 7 October 2021
Plans to ensure that Britain’s homes and businesses are powered by affordable, clean and secure electricity by 2035 have been unveiled by the government. A commitment to decarbonise the UK’s electricity system by 2035, was confirmed this week by Prime Minister Boris Johnson and Business and Energy Secretary Kwasi Kwarteng, to help boost the country’s efforts in achieving its net zero ambitions. This will focus on building a secure, home-grown energy sector that reduces reliance on fossil fuels and exposure to volatile global wholesale energy prices. It brings forward by 15 years the government’s commitment to a fully decarbonised power system by 2050, set out in the Energy White Paper, and builds on the Prime Minister’s 10 Point Plan for a Green Industrial Revolution to secure a future clean electricity supply, that’s generated in the UK, for the UK.
Companies bidding for major government contracts face green rules
Cabinet Office | 30 September 2021
New measures which require businesses bidding for major government contracts to commit to achieving net zero emissions come into force today. The implementation of these rules will help deliver the manifesto promises made by the government to reach net zero carbon emissions by 2050. The requirements will apply to any companies bidding for government contracts worth more than £5m a year, not just those who are successful.
TCLP Launches Net Zero Toolkit
The Chancery Lane Project | 30 September 2021
The Chancery Lane Project (TCLP) has officially launched its Net Zero Toolkit – a package of new tools and clauses to help fight climate change and achieve net zero carbon emissions.
Combined heat and power: pathway to decarbonisation call for evidence
Department for Business, Energy & Industrial Strategy | 27 September 2021
BEIS are seeking views to inform further development of possible options for future reform of combined heat and power policy. This consultation closes at 11:45pm on 20 December 2021.
Social Housing Decarbonisation Fund: questions and answers
Department for Business, Energy & Industrial Strategy | 9 September 2021
BEIS has updated the questions and answers document to provide further answers on eligible properties and measures, mixed tenure, modelling at bid stage, funding and the application process.
Green Homes Grant Voucher Scheme
National Audit Office | 8 September 2021
This report examines the performance, implementation, procurement and management of the scheme. The report aims to identify lessons for future schemes against a backdrop of previous problematic attempts by government to implement domestic energy efficiency schemes. The report finds the rushed delivery and implementation of the scheme has significantly reduced the benefits that might have been achieved, caused frustration for homeowners and installers, and had limited impact on job creation for the longer term. It is important that the Department and HM Treasury heed the lessons from this, and previous schemes, for any future domestic decarbonisation programme.
Heat Network Fund: proposals for the scheme design government response
Department for Business, Energy & Industrial Strategy | 7 September 2021
This document sets out the Government’s response following the Green Heat Network Fund call for evidence oand consultation, where BEIS has set out its current position, decisions and accompanying rationale on the design of the fund.
News
Councils face legal obligation to plan and deliver for EVs
LocalGov | 6 October 2021
The Government is considering imposing a statutory duty on local authorities to plan and deliver for electric vehicle infrastructure. The move is part of a regulatory review of the zero emission vehicles landscape, which could introduce a raft of new legislation and regulations to support the uptake of electric vehicles. A consultation is being carried out through the Office for Zero Emission Vehicles (OZEV) - a cross-departmental government team - on the potential changes, including whether councils in England and Wales should have a statutory obligation to plan for and deliver charging infrastructure.
New research to help local authorities plan for a ‘just’ transition to net zero
LocalGov | 28 September 2021
A new research project to discover how the UK’s transition to net zero will affect the poorest families and communities has been launched. The research, led by the Institute for Community Studies and funded by the Nuffield Foundation, will help mitigate the negative impacts on those likely to be disproportionately affected by household, social and economic shifts needed to meet the 2050 target. This will help local authorities assess the target’s impact on their local communities and plan for a ‘just’ transition to net zero.
UK’s first green bond oversubscribed by a factor of 10
Public Finance | 22 September 2021
The Treasury’s inaugural £10bn bond targeting investments in net zero projects, received more than £100bn of bids from the market, according to reports. The £10bn, 12-year issue was completed recently, priced at a yield of 0.87%, and attracted £100.4bn of private sector bids, according to an initial report from Reuters. The Treasury will issue another green bond in the coming months, with plans to raise £15bn for sustainability projects this year, with demand to continue to outstrip need, according to an expert.
Green homes 'revolution' would give £9.8bn boost to UK economy, report argues
LocalGov | 21 September 2021
A new strategy to decarbonise the UK's housing stock could create up to 138,600 new jobs and boost the economy by £9.8bn by 2030, according to a new report. The report from Greenpeace argues a 'green homes revolution' to insulate homes and swap gas boilers for low-carbon heating sources could deliver huge economic and social benefits. The report assesses the impact of three housing decarbonisation scenarios including the Climate Change Committee’s (CCC) central pathway that aims to install just over one million heat pumps per year by 2030 and upgrade all buildings to EPC C standards within the next 10-15 years. It compared this to the Government's current plan to install 600,000 heat pumps per year by 2028. It found that while all scenarios would provide a significant boost to the economy, the greatest benefits would come from the more ambitious rollout of low-carbon heating technologies and energy efficiency.
Climate pledges tough to secure before COP26 summit, PM warns
BBC News | 20 September 2021
There is a "six out of 10" chance of getting other countries to sign up to financial and environmental targets ahead of November's key COP26 climate change conference, the UK PM has said. Boris Johnson is in the US for a UN meeting where he will urge leaders to take "concrete action" on the issue. But he said it would be "tough" to persuade allies to meet their promise to give $100bn a year to developing nations to cut carbon emissions. The UK is hosting COP26 in Glasgow.
How can the Government get to ‘net zero’?
The Business, Energy and Industrial Strategy (BEIS) Committee | 17 September 2021
The Business, Energy and Industrial Strategy (BEIS) Committee begins its inquiry on net zero governance, examining the leadership and co-ordination which will be needed by government to deliver on the UK’s commitment to reach net zero by 2050.
Councils call for £1bn investment for ageing sport facilities
LocalGov | 16 September 2021
Council leaders are calling for the spending review to include £1bn to modernise sport facilities, after warning nearly two-thirds of the leisure estate is past its replacement date. The Local Government Association (LGA) warned that ageing sport and leisure facilities are hampering efforts to meet net zero targets as they account for up to 40% of a council's carbon emission output.
Law Society Gazette | 13 September 2021
As the UK prepares to host the COP26 UN climate change summit, its ambitions exceed those of most other industrialised countries. But the strategies, laws and mechanisms needed to realise UK policy are coming out in ‘dribs and drabs’, according to environmental lawyers. Business leaders are left guessing what should be done now. The EU is ahead on concrete measures, raising the unwelcome prospect of divergence. The hope is that COP26 will be seen as a deadline for setting out the plans that will help countries achieve net zero emissions of greenhouse gases. For now, lacking a strong enough governmental lead, groups of lawyers are taking the initiative – not least corporate counsel, who can use their position as clients to push for change.
COP26: UK still lagging on climate policy, report says
BBC News | 13 September 2021
Britain is lagging way behind its schedule for cutting carbon emissions in the run-up to November's climate summit in Glasgow, a report says. Think tank the Green Alliance says current plans will deliver less than a quarter of the cuts needed to meet the UK’s 2030 climate goal. Little progress has been made in areas such as farming (a 7% improvement), power (12%), and waste (15%), it warns.
Climate Change risk: Are We Doing Enough, Fast Enough?
National Audit Office blog | 12 September 2021
The verdict from the Climate Change Committee’s June progress report is “with every month of inaction, it is harder for the UK to get on track” with its climate ambitions. To gauge the level of climate change risk maturity in government the NAO surveyed Chairs of Audit and Risk Assurance Committees (ARACs). While four out of five ARAC Chairs considered climate risks to be relevant to their organisation, over half noted that their organisation did not have a climate or sustainability risk policy or a dedicated employee accountable for either. Additionally, seven in ten Chairs said that climate change risks had either never been discussed at an ARAC meeting or had been discussed less than annually. Against this backdrop, the NAO intends to help government organisations start the conversation around climate change risk.
Government has ‘no understanding’ of local authority net zero challenges
Public Finance | 10 September 2021
Central government has no understanding of the scale and funding challenges facing local authorities in implementing net zero objectives, senior councillors have told MPs. The upcoming Spending Review should stabilise local authority funding, and establish a needs assessment framework for net zero ambitions, Rachel Blake, member of the Local Government Association’s environment, economy, housing and transport board said. She told the Environmental Audit Committee that previous funding pots such as the social housing decarbonisation fund only “scratched the surface” of what local authorities need. This was echoed by Claire Holland, vice-chair of London Councils’ transport and environment committee, who added that energy efficiency upgrades for all homes in the capital, would cost around £98bn. She told the committee: “There is no sense of understanding of the scale and of the funding required.
Nottingham City Council: Carbon Neutral Agenda
Local Government Association | 10 September 2021
Nottingham City Council has responded to the climate and environmental crisis by making one of its key Council policies in its Council Plan 2019-2023 to become the first carbon neutral city in the UK by 2028.
UK’s first Zero Emission Zone to launch next year
LocalGov | 10 September 2021
Britain’s first Zero Emission Zone (ZEZ) pilot will take place in Oxford next February, it has been confirmed.
Oxford City Council and Oxfordshire County Council have confirmed the new timeline for the scheme to avoid causing disruption to businesses during the run up to Christmas. Under the pilot, the most polluting vehicles will be charged if driven in key city centre streets between 7am - 7pm. The pilot will pave the way for both councils to introduce a larger ZEZ covering most of Oxford city centre, subject to further public consultation.
Climate Change – Government must listen to the public, says Business Committee Chair
Business, Energy and Industrial Strategy Committee | 9 September 2021
The BEIS Committee has today published the Government’s response to the BEIS Committee’s Climate Assembly UK: where are we now? report (which was published on 8th July 2021). The Climate Assembly UK has done the Prime Minister’s homework for him by agreeing the best ways to achieve our net zero target through incremental changes to the way we heat our homes, travel and live. The Government should listen to the public and now seize the opportunity to bring forward the policies to get to net zero. “Ministers acknowledge the value of the Climate Assembly and recognise its importance as part of their evidence-base for policy-making on net-zero. But the Government must go further and faster in engaging the British public and in energising and motivating people about the net zero opportunities ahead of us. The clock is ticking to COP26 and the Government should not waste this chance to engage the whole country in the conversation around climate change. “I urge the Government to stop kicking the can down the road and urgently come forward with the host of net-zero related initiatives they have promised, including the Treasury’s Net Zero Review. I hope the Government will use their Net Zero Strategy to set out a bold and ambitious public engagement plan to build consensus and maintain public trust in the policies needed to transition to net zero.”
Delivering Value
The Building Safety Bill
Once it becomes law, the Building Safety Bill, described by the government as “the biggest changes to building safety regulations in a generation”, will have a huge impact on developers and contractors involved in the design and construction of “higher risk” buildings, as well as those who own them, live in them and manage them.
For the purposes of the Bill, higher-risk building means a building that is:
- At least 18 metres in height or has at least 7 storeys; and
- Contains at least 2 residential units.
The Bill aims to identify, prevent, manage and regulate higher-risk buildings and building safety risks. A ‘building safety risk’ is defined as
“a risk to the safety of people in or about a building arising from any of the following incurring as regards the building – (a) the spread of fire; (b) structural failure; (c) any other prescribed matter”.
It will be policed by the “Regulator”, which will be the Health and Safety Executive (HSE).
The provisions of the Bill will become law in stages, staggered over several months. The Bill will probably receive Royal Assent between April and July 2022. The various provisions of the Bill then come into force in stages by reference to a number of months after Royal Assent.
We outline in our recent article Building Safety Bill: What Happens Next? | Bevan Brittan LLP the main provisions of the Bill and when they are likely to come into force, assuming that Royal Assent is given between April and July 2022. More detailed articles on these provisions will be published on our website shortly.
Once enacted, the Building Safety Bill will impact every stage of a higher-risk buildings life, from planning, design, construction to occupation and management. Virtually everyone involved with such buildings will be impacted. It appears, however, that those with a legal interest in the building (particularly freeholders) and management companies bear the bulk of the responsibility in terms of managing Building Safety risks once the building has been occupied.
It must be emphasised that this Bill is still in committee stage and may be amended. The above timescales may also be subject to slippage. It is virtually certain, however, that the bulk of these provisions will find their way into law and that all parties involved with such buildings, particularly freeholders and management companies, need to be well aware of these provisions well before they come into force between 2022 and 2024.
Publications & Guidance
Local services will cost at least £8bn more by 2024, which cannot be funded by council tax alone
Local Government Association | 1 October 2021
Councils in England face extra cost pressures of almost £8bn by 2024/25 just to keep vital local services running at today’s levels, analysis by the Local Government Association warns ahead of the Spending Review. Faced with these significant spending pressures over the next few years, the LGA is warning that vital services, such as care for older and disabled people, child protection, homelessness prevention, waste and recycling, and road maintenance, continue to face an uncertain future as a result. The LGA said the significant financial pressures facing local services cannot be met by council tax income alone. Councils are particularly alarmed that the Government’s solution for tackling social care’s core existing pressures appears to be solely through the use of council tax, and the social care precept.
Failing social care system reflected in relentless rise in Ombudsman’s upheld complaints
Local Government and Social Care Ombudsman | 29 September 2021
The gulf between what the public expects and what it actually gets, when it comes to adult social care, has been starkly illustrated in the LG&SCO’s latest annual review of complaints. Published today, the Ombudsman’s annual review of social care complaints – covering both councils and independent care providers across England – shows the service found fault in 72% of the complaints it investigated last year. This percentage of upheld cases is greater than the previous year (69%) and shows a relentless rise over the last decade in the proportion of cases in which care users and their families have been let down by local services. The faults the Ombudsman finds in its investigations are often not due to one-off errors caused by staff working under pressure, but are increasingly caused by the measures employed by councils and care providers to mitigate the squeeze on their resources.
A new way of working: ending rough sleeping together
The Kerslake Commission on Homelessness and Rough Sleeping | September 2021
The Commission’s final report A new way of working: ending rough sleeping together, has now been published. It sends a clear message that without urgent action the benefits and lessons learned from the joint working during the pandemic will be wasted, and the number of people having to sleep on the streets will rise again.
Swim England warns almost 2,000 pools could be lost forever by end of decade
Swim England | 22 September 2021
Almost 2,000 swimming pools could be lost forever by the end of the decade unless the Government and local authorities ‘act now’ to replace or refurbish ageing facilities. Swim England has warned in its new A Decade of Decline: The Future of Swimming Pools in England report that there will be a huge reduction in the amount of water space available by 2030, which could threaten the future of aquatic sports in some areas and leave millions shut out of the activities they love. The looming shortage is based on pools which were constructed in the 1960s and 1970s and are coming to the end of their lifespan – while not enough new facilities are being built to replace them. While the coronavirus pandemic has exacerbated the issue, it is not a direct cause for the dire prediction.
Council to review development company
LocalGov | 17 September 2021
Cambridgeshire County Coucil has brought in external consultants to look into its development company.
The council has loaned about £113m to arm’s length property development company This Land. The review by consultancy Avison Young will look at whether This Land’s business plan is ‘reasonable and deliverable’ and its exposure to medium-term risk. It will also look at the firm’s skills, capabilities and expertise, how to quicken the pace of delivering homes, and how to adapt its risk appetite and strategy.
Guidance on Integrated Care Partnership (ICP) engagement
Local government Association | 16 September 2021
This guidance sets out The Department of Health and Social Care, NHS England and the LGA’s expectations for the role of Integrated Care Partnerships (ICPs) within Integrated Care Systems.
Council’s decision-making criticised during school transport investigation
Local Government and Social Care Ombudsman | 16 September 2021
The LG&SCO has asked Staffordshire County Council to reconsider whether it pays for transport to get a teenager, who has autism, to her college some 25 miles away. Since moving to post-16 education, the girl has not received any financial help to get to the college named in her Education, Health and Care Plan.
The council has argued it does not have a duty to provide transport assistance for the girl because she is in post-16 education and could use public transport, if accompanied. The Ombudsman’s investigation found the council failed to take into account the actual journey the girl would have to make to get to the college. It did not consider the distance and location of the college meant it would take her significantly longer than the benchmark journey time of 75 minutes – recommended in the statutory guidance – to get there by public transport.
Direction issued to Bradford Council
Department for Education | 15 September 2021
A statutory direction issued to Bradford Council due to poor performance in children's social care services. This direction requires the council to co-operate with a commissioner appointed by the Secretary of State for Education. It follows Ofsted’s monitoring visit report published on 4 June 2021 that reported on the slow pace of change in improving the quality of core social work practice. The direction replaces an earlier improve notice issued to Bradford Council on 4 December 2018.
Securing the future of public sport and leisure services
Association of Public service Excellence | 14 September 2021
This summary report sets out some of the systemic problems within public sports and leisure services; how these issues have been entrenched in financial models of operation, which fail to recognise the public value of the service; and how these challenges have been exacerbated by a decade of austerity preceding the COVID-19 pandemic, which has further stressed the sector’s finances. Preventable yet life-changing illnesses like obesity and diabetes are soaring in number, yet the recent pandemic has undermined participation in the most effective preventative measure – being active. The COVID-19 pandemic has been devastating for public sport and leisure services. The loss of income due to long periods of closure combined with high monthly maintenance costs has significantly affected the viability of the sector, coupled with the more fundamental and ingrained systemic issues already at play, which has seen the social and health outcomes that public sports and leisure services provide, negatively affected by the need to reduce subsidy over the last decade, as a result of the financial pressures councils have faced.
Build Back Better: Our Plan for Health and Social Care
Department of Health and Social Care | 7 September 2021
This paper sets out the government’s new plan for health and social care.
It provides an overview of how this plan will tackle the electives backlog in the NHS and put the NHS on a sustainable footing. It sets out details of the plan for adult social care in England, including a cap on social care costs and how financial assistance will work for those without substantial assets. It covers wider support that the government will provide for the social care system, and how the government will improve the integration of health and social care. It explains the government’s plan to introduce a new Health and Social Care Levy. This paper was laid in Parliament on 7 September 2021.
See also LGA response to "Build Back Better: Our plan for health and social care" This briefing sets out the LGA's response to different parts of the government's plan for health and social care. While there have been potentially positive developments, we have serious concerns and question whether they make the kind of progress needed to help adult social care deliver for people.
And Social care funding: rapid response note from Local Government Lawyer
Government announces reforms of adult social care: CCN response
County Councils Network | 7 September 2021
Cllr Martin Tett, Adult Social Care Spokesperson for the County Councils Network, said:
“After years of inaction by successive governments, we welcome this administration’s intention to set out reforms in adult social care, funded by national rather than local taxation. Importantly, these reforms place local government at their heart. The announcement of a white paper on wider reform and integration is welcome, particularly if it seeks to get to the root of the challenges within the social care workforce and on prevention. The County Councils Network (CCN) supports the principles of protecting more people from catastrophic care costs, extending the means-test threshold and a commitment to improve the quality and access to care services. But these reforms alone and the level of investment in the short-term – compared to the NHS – will not deal with existing problems within the system”.
The government’s health and care proposals must address the problems in the existing care system
Institute for Government | 7 September 2021
he government’s proposals to reform social care funding do not address existing problems with the system and risk temporary funding for the NHS becoming permanent, warns Graham Atkins
News
Cheshire West and Chester Council to bring adult social care in-house
BBC News | 14 October 2021
A council is to bring its adult social care provider back in-house, eight years after it was outsourced to its own company. Cheshire West and Chester Council started using Vivo, a company it wholly owns, in 2013. The authority said the transfer would happen from April 2022. A spokesman said all staff would be transferred to the council and people being cared for and their carers would see no difference in services. Councillor Val Armstrong, the cabinet's member for adult social care and public health, said the rationale for delivering through an arm's length company was "no longer clear" and a realistic assessment of the model was the best way. She added the decision to bring services back in-house was not a criticism of the company. A report to councillors said an in-house model would "better enable the council to respond flexibly to the health and care transformation agenda".
Warrington energy company in a ‘deteriorating trading position’
Public Finance | 11 October 2021
The trading position of an energy company partly owned by Warrington Borough Council is deteriorating amid soaring energy prices. Together Energy, in which the council has a 50% stake, has been impacted by the global increase in energy costs, and the Ofgem price cap, that has already seen some operators go under. Warrington invested £18m in its share of the company in October 2019, but since then council has loaned Together Energy another £20m, a report to be discussed at cabinet meeting this week said. The report said: “Like all energy companies the company is currently experiencing a deteriorating trading position. “The major reason for this deteriorating position is the current high gas prices and resultant energy prices and the price cap.”
Services rethink needed over £36m budget gap
Public Finance | 7 October 2021
Dorset Council has said it needs to rethink the way it provides services, in light of a £36m forecast budget gap for the next two years. The unitary authority has forecast pressures of around £8.3m, based on returns over the first quarter of 2021-22, mainly attributed to increased care costs and reduced incomes. However, legacy pressures could crystalise next year, leaving a £36m funding gap requiring additional savings and changes to services, a report discussed at a cabinet meeting said. Gary Suttle, portfolio holder for finance commercial and capital strategy, said: “The truth of the matter remains that this council is underfunded by government, when compared with councils of similar size, and over the coming budget process we will need to consider how we can change that situation. “Savings can be made, and everyone is working to control budgets, but that is not enough. “Can we think differently? Can we consider whole new ways to operate and, importantly, to raise income, not just from existing sources with new and innovative methods? Over the coming months we have some very, very tough challenges ahead.” This year’s budget was based on the assumption that £10.8m of savings was achievable.
Council tax could easily rise by 5% a year warn finance experts
LocalGov | 6 October 2021
English councils will need billlions more from government and big tax rises to maintain services and pay for social care reforms, says new analysis published today by the Institute for Fiscal Studies (IFS).
According to the IFS, under current spending plans council tax rises of 3.6% will be required for the next three years just to ensure councils provide the same range and quality of services in 2024-25 as they did before COVID-19. However, it highlighted that bigger increases in underlying demand and cost pressures for top-ups to other budgets such as schools, which eat into the amount available for grants to councils, 'could easily push up the necessary council tax rises to 5% a year, or by over £220 by 2024-25'.
Covid-19 sees councils opt against shared office
Public Finance | 29 September 2021
Two local authorities in Kent have decided to not take forward an option to build a shared office in the county, due to changes in working patterns. In 2016, Kent County Council and Maidstone Borough Council entered into a regeneration joint venture in the town, which included a former Royal Mail sorting office. One option discussed by members at the time, was to develop council-owned land into a new office, but both authorities have decided against this, due to flexible working fuelled by Covid-19.
Cases
Looked after children in unregulated settings
Local Government Lawyer | 20 September 2021
What should local authorities do in the case of looked after children under 16 who are placed in unregulated settings after 9 September 2021? Samantha Broadfoot QC investigates.
Local Government Lawyer | 27 September 2021
The Court of Appeal has dismissed an appeal by an independent fostering agency over whether it is lawful for it only to accept heterosexual evangelical Christians as potential carers. Cornerstone (North East) Adoption and Fostering Services ("Cornerstone") recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted. Ofsted considered that it was unlawful for Cornerstone only to accept heterosexual evangelical Christians as potential carers. In a report issued in draft on 12 June 2019, it assessed the effectiveness of Cornerstone's leaders and managers as 'Inadequate'. This was in large measure because Ofsted considered that, by only recruiting foster carers who were practising Christian carers in opposite sex marriages, Cornerstone's recruitment and selection process for foster carers did not comply with the requirements of the Equality Act 2010 and the Human Rights Act 1998. On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages. On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages. In a judgment dated 7 July 2020, reported as R (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd v Office for Standards in Education, Children's Services and Skills [2020] EWHC 1679 (Admin), Mr Justice Julian Knowles dismissed Cornerstone's claim and he ordered it to pay 75% of Ofsted's costs.
Place & Growth
Is a Collateral Warranty a Construction Contract?
Following the decision in Parkwood Leisure Limited v Laing O'Rourke and West Limited [2013], it is widely recognised that a collateral warranty can, but not necessarily will, constitute a construction contract within the meaning of the Housing Grants, Construction and Regeneration Act Construction Act (“the Construction Act”). In the recent case of Toppan Holdings Limited (“Toppan”) and Abbey Healthcare (Mill Hill) Limited (“Abbey”) v Simply Construct (UK) LLP (“Simply Construct”) [2021], the court helpfully provided further clarification on this point.
A "construction contract" is widely defined in section 104(1) of the Construction Act as being an agreement with a person carrying out “construction operations”, and includes:
- To carry out architectural, design or surveying work; and
- To provide advice on building, engineering, interior or exterior decoration or on the laying-out of landscape. If a party is able to establish that they have a construction contract, they have a statutory right to refer any dispute in relation to that contract to adjudication.
Collateral warranties are agreements that are associated with another 'primary' contract. They provide for a duty of care to be extended by one of the contracting parties to a third party who is not party to the original contract, e.g., commonly, a (1) contractor, consultant or subcontractor (warrantor) and (2) a funder or tenant (beneficiary), giving that third party the right to sue the warrantor.
In this case, nearly two years after practical completion, Toppan discovered fire-safety, in particular a lack of fire- resistant plasterboards and other protection to confer at least 60 minutes' fire resistance in the structural walls. Four years after practical completion and after Toppan engaged in pre-action correspondence with Simply Construct, a collateral warranty was executed under the Building Contract by Simply Construct in favour of Abbey.
As part of an adjudication to recover the losses incurred as a result of the remedial works, Abbey were rewarded £908,000. Simply Construct argued that the adjudicator had no jurisdiction to make a decision in the adjudication due to the fact that the Abbey Warranty was not a construction contract; therefore, any decision made by the adjudicator was invalid.
The collateral warranty was considered more akin to a manufacturer’s product warranty rather than as a construction contract due to that warranty using the words “warrants” as opposed to “warrants acknowledges and undertakes” in relation to past and future performance. This difference in wording was judged not to contain any undertaking for Simply Construct to carry out and future works.
This case was slightly unusual, given the timing of the execution of the collateral warranty and the likely reason that the collateral warranty was only procured so that Abbey could bring adjudication proceedings. However, the more time that lapses between completion of the works and the execution of the collateral warranty, the harder it will be to argue that the agreement is for "the carrying out of construction operations".
Legislation
This instrument extends the ‘relevant period’ in Schedule 29 of the Coronavirus Act 2020 and suspends the operation of various provisions in Schedule 29. The effect of this is that requirements relating to the notice of intention landlords are required to give to seek possession of property under various statutory tenancy types revert to the pre-Coronavirus Act position but the power for the Government to impose longer notice periods as an emergency measure is retained until 25 March 2022. This instrument also prescribes new versions of Form 3, being the form for giving notice seeking possession on one or more of the statutory grounds pursuant to section 8 Housing Act 1988, and Form 6A, being the form for giving notice requiring possession under section 21 Housing Act 1988, and the Part 2 notice of seeking termination of a fixed term tenancy and recovery of possession under section 83 Housing Act 1985. These Regulations come into force partly on 30 September 2021 and fully on 1 October 2021.
This Instrument makes amendments to the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 and to the Persons subject to Immigration Control (Housing Authority Accommodation and Homelessness) Order 2000. It enables local authorities in England, Scotland and Northern Ireland to treat persons who have come to the UK from Afghanistan under specified Home Office resettlement schemes, and certain of those who are not covered by one of the listed schemes but who left Afghanistan in connection with the collapse of the Afghan government on 15 August 2021, as eligible for housing and homelessness support. It also, in relation to England and Scotland, exempts such persons from the Habitual Residence Test. Coming into force on 16 September 2021.
Publications & Guidance
Building post-pandemic prosperity
Local Government Association | 13 October 2021
The economic and fiscal case for constructing 100,000 new council homes each year. This report sets out how a programme of building 100,000 new social rent tenure homes each year will help address the challenges facing England after the pandemic, whilst delivering gains to the public sector finances. The report also outlines case studies of where councils are delivering this.
Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities & Local Government | 7 October 2021
The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 require that landlords have property electrics checked at least every 5 years by a properly qualified person. The electrics must meet standards and landlords must give their tenants proof of this. These guides on the regulations are for landlords, tenants and local authorities. Updated guidance.
On the level: six principles to underpin the levelling up White Paper
Local Government Information Unit | 4 October 2021
A White Paper on levelling up is expected sometime this autumn. The LGIU has over the last two years published a series of briefings and research papers to try and clarify what levelling up will entail, whether it is a coherent policy and how local government can respond. This paper brings together this work to look at the opportunities levelling up offers and the risks it poses. Reviewing our work and those of others it sets out six principles that need to underpin the White Paper:
Clarity – The White Paper has to clarify what the government means by levelling up whilst allowing flexibility for locally-targeted action and scope for local leaders to make it their own.
Scope – New levelling up funding and other funding related to it and local growth strategies, such as the Towns and UK Shared Prosperity funds should extend beyond investing in hard infrastructure projects to social infrastructure and to measures that address inequalities in areas such as health and skills, with support for early intervention measures such as early years programmes and childcare services.
Partnership – Local leaders have to be given the tools to be able to fully contribute as partners to the levelling up project. Levelling up needs to go hand in hand with a decentralisation of power to local and sub-national governments, based on A New Settlement for Place.
Transparency – There has to be complete transparency – both in relation to the data and information used for making decisions and the reasons why policy and funding decisions are made.
Flexibility – Levelling up has to be and be seen to be relevant to local places, reflecting the priorities of and differences between local authorities, their communities and partners.
Accountability – The levelling up White Paper needs to set out clear objectives and timescales – at national and disaggregated levels so that progress can be scrutinised and outcomes measured including developing metrics for place-based wellbeing policy.
Building Communities: planning for a clean and good growth future
Localis | 4 October 2021
Communities should be put at the heart of the government’s proposed planning reforms to build new developments that are more affordable, more beautiful, greener and more likely to endure for generations, the think-tank Localis has argued. In a report published today entitled ‘Building Communities: planning for a clean and good growth future’, outlines how genuine community engagement through better neighbourhood plans, the use of new design codes, as well as better digital channels of communication between councils and residents, will be vital to achieving national housing targets. Among its key recommendations, Localis calls for the widespread development of a stewardship model for the long-term investment in areas where new communities will be established, to ensure the continued provision of both physical and social infrastructure for future generations.
Covid-19 and renting: guidance for landlords, tenants and local authorities
Department for Levelling Up, Housing and Communities | 1 October 2021
Non-statutory guidance for landlords, tenants and local authorities in the private and social rented sectors in the context of Coronavirus (Covid-19). Updated to reflect the return to pre-Covid notice period lengths on 1 October 2021.
Ministry of Housing, Communities & Local Government and Department for Levelling Up, Housing and Communities | 1 October 2021
Forms for seeking possession of secure tenancies. Updated forms changed in line with notice periods returning to the pre-Covid position.
New duties for councils to provide support in safe accommodation for domestic abuse victims
Department for Levelling Up, Housing and Communities | 1 October 2021
New regulations and guidance set out the level of support councils are required to provide. These include:
- A clear expectation that expert specialist support is provided to victims in safe accommodation that best supports their needs, whether in refuges or other safe housing
- Guidance that states B&Bs or mixed homeless hostels are not the right place for victims to recover from abuse.
- Councils will support to victims to stay in their own homes, if the perpetrator has left and the home can be made safe.
See also comment in LocalGov.
Understanding the possession action process: guidance for landlords and tenants
Ministry of Housing, Communities & Local Government and Department for Levelling Up, Housing and Communities | 1 October 2021
Guidance for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales. Guidance updated to reflect changes to required notice periods in England and Wales, the end of the furlough scheme and changes to international travel rules.
Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities & Local Government | 28 September 2021
Guidance to help local authorities and partners to deliver activities supported through the Welcome Back Fund. This funding builds on the Reopening High Streets Safely Fund announced in May 2020. Guidance and FAQ both updated.
Infrastructure, Towns and Regeneration
National Infrastructure Commission | 23 September 2021
Towns across the country depend on infrastructure to support economic prosperity and good quality of life. Many towns offer the opportunity for growth and regeneration but may require infrastructure improvement to maximise their potential, while people living in towns everywhere need to have access to a decent level of infrastructure provision for social, leisure and work activities. Delivering the right infrastructure for towns can potentially help address economic and social imbalance between regions. The final report of this study makes nine recommendations to government on how infrastructure can better support economic prosperity and quality of life in towns.
Leasehold Reform (Ground Rent) Bill 2021-22
House of Commons Library | 22 September 2021
This briefing paper outlines the main provisions of the Leasehold Reform (Ground Rent) Bill 2021-22 and the key issues raised during consideration in the House of Lords.
Levelling Up: Five questions about what the government means by the phrase
Institute for Government | 22 September 2021
The government’s flagship levelling up agenda lacks clear objectives, with policies often contradicting ministerial rhetoric about decentralising power. This report alongside new analysis of how money was allocated from the £3.6bn Towns Fund – analyses ministerial statements on levelling up and how money has been allocated, including the £4.8bn Levelling Up Fund, the £2.5bn National Skills Fund and plans to move 22,000 civil service jobs out of London by 2030. The report, which says the government must address the gaps and tensions in its statements about levelling up, identifies three main areas where the government’s objectives remain unclear.
- Is government prioritising the most deprived people or the lowest economic output areas?
- What is the role of regional cities in the levelling up agenda?
- Does levelling up mean decentralising power or not?
Many of the levelling up policies give most decision-making power to central government – which jars with government rhetoric. The Levelling Up Fund, Towns Fund and Community Renewal Fund are all centrally run and rely on local areas bidding for money. This gives central government a lot of power in deciding where funding goes and what types of projects are eligible.
Coronavirus (Covid-19): Safer public places - managing public outdoor settings
Ministry of Housing, Communities & Local Government and Department for Levelling Up, Housing and Communities | 21 September 2021
Guidance for local authorities, owners and operators to support the safe use and management of outdoor public places while the risk of Covid-19 transmission remains. Revised in line with the Prime Minister’s announcement of the Covid-19 response: Autumn and winter plan.
Allocation of accommodation: guidance for local authorities
Department for Levelling Up, Housing and Communities | 16 September 2021
Statutory guidance on social housing allocations for local housing authorities in England. Updated: Chapter 3: Eligibility and qualification Amended paragraphs 3.14, 3.17, 3.22
Homelessness code of guidance for local authorities
Department for Levelling Up, Housing and Communities | 16 September 2021
The update to the Homelessness code is primarily related to the UK’s commitment to rehouse Afghan refugees following the withdrawal from Afghanistan. Published amendments Chapter 7: Eligibility for assistance. Amended paragraphs 7.14, 7.18, 7.34
Pandemic recovery could bring £51bn a year boost to rural and coastal economy
Local Government Association | 14 September 2021
The pandemic could help to ‘redefine’ rural and coastal communities in England, a report commissioned by the Local Government Association (LGA) and produced by Pragmatix Advisory has found. The LGA, has found that a rise in people ‘staycationing’, population movement away from urban areas and a greater focus on the green economy could all help deliver a £51bn a year economic boost by 2030 to rural areas. However, councils are warning that disproportionately low wages in coastal and rural communities is making the cost of housing increasingly unaffordable for many workers. The report, Rural recognition, recovery, resilience and revitalisation finds that the main industries in these areas are tourism/hospitality, farming and fishing, all of whom are more likely to offer lower wages and seasonal work patterns.
National Infrastructure and Construction Pipeline 2021
Infrastructure and Projects Authority and HM Treasury | 13 September 2021
This National Infrastructure and Construction Pipeline sets out future planned procurements and levels of investment alongside the workforce requirement to deliver the National Infrastructure Strategy. This will support industry in making informed decisions linked to short term business planning and also strategic plans over a longer time horizon. This pipeline includes for the first time the forecasted future workforce demand based on planned investment on projects and programmes. It provides insights across the wide range of infrastructure the UK is planning to procure in the coming year, in addition to the investments the UK is committed to delivering over the coming years.
The Government’s Levelling Up Agenda
House of Commons Library | 10 September 2021
The Government is due to publish a White Paper on levelling up later this year; a response to a PQ on the subject stated this would “set out bold new policy interventions to improve livelihoods and opportunity in every part of the United Kingdom.” This Briefing report contains background information, parliamentary and press material, ahead of Westminster Hall debate on 15 September 2021.
New Wolverhampton Housing HQ unveiled
Ministry of Housing, Communities & Local Government | 10 September 2021
Communities Secretary Robert Jenrick officially unveiled the MHCLG's second headquarters in Wolverhampton - the first of its kind outside of London. The headquarters will, for the first time, have a regular ministerial presence outside of the capital. The historic milestone demonstrates the government’s commitment to levelling up all areas of the country; MHCLG plays a key role in supporting communities to unlock their full economic potential, and the new office, based in the i9 building in the heart of Wolverhampton, will help create jobs throughout the West Midlands.
Milton Keynes and Sheffield awarded £1.4m to deliver more homes
Ministry of Housing, Communities & Local Government | 9 September 2021
Milton Keynes and Sheffield have been awarded funding of £1.4m to develop proposals to unlock a significant number of homes and jobs through the New Development Corporation Competition (NDCC).
Milton Keynes will receive £665,000 to help explore how a locally - led development corporation can support the delivery of up to 60,000 homes by 2050 and create economic opportunities to support 50,000 to 90,000 jobs over the next 30 years. Meanwhile, Sheffield will receive £763,000 to explore an innovative delivery mechanism to enhance economic opportunities in the region whilst delivering 8,000 homes and creating up to 4,000 jobs by 2040.
Voice of the sector: supporting rough sleepers at a time of national crisis
Local Government Association | 9 September 2021
A new report today sets out how the sector support programme, delivered by the Local Government Association, is sharing learning and good practice from the Everyone In initiative to help eliminate rough sleeping for good. The report highlights what can be achieved when all parts of the public, voluntary and community sectors work together towards a common goal, as well as highlighting some of the key challenges that councils continue to face.
Consumer regulation review 2020 to 2021
Regulator of Social Housing | 7 September 2021
The Regulator of Social Housing’s consumer regulation review sets out its experience of the consumer regulation regime for social housing. The report explains how RSH has gone about implementing the legislation on consumer regulation and includes case studies and lessons learned.
News
Council approves £4m cladding remediation
Public Finance | 13 October 2021
Canterbury City Council is set to borrow up to £4m towards the cost of recladding three authority owned tower blocks, in preparation for new rules introduced following the Grenfell Tower tragedy. The council approved for the replacement of cladding and the installation of new sprinklers on Elizabeth Court, Margaret Court and Windsor House, with the funding coming from the authority’s housing revenue account. Canterbury has also applied to central government's Decarbonisation Fund, which grants funding for removal and changing of insulation, to reduce cost pressures, a report discussed at a policy committee meeting this week said.
Councils warn local road maintenance budgets face £400m cut
LocalGov | 11 October 2021
Funding for local road maintenance has been cut by £400m this year, the Local Government Association (LGA) has warned. It said the reduction in the capital funding allocated to councils in 2021/22 is the equivalent of fixing or preventing over 9.5m potholes. The LGA is calling on the Government to use the Spending Review to plug the £400m funding gap and allocate an additional £500m per year to councils for road repairs.
Councils face legal obligation to plan and deliver for EVs
LocalGov | 6 October 2021
The Government is considering imposing a statutory duty on local authorities to plan and deliver for electric vehicle infrastructure. The move is part of a regulatory review of the zero emission vehicles landscape, which could introduce a raft of new legislation and regulations to support the uptake of electric vehicles. A consultation is being carried out through the Office for Zero Emission Vehicles (OZEV) - a cross-departmental government team - on the potential changes, including whether councils in England and Wales should have a statutory obligation to plan for and deliver charging infrastructure.
Think tank calls for more community involvement in local plans
LocalGov | 4 October 2021
A think tank has called for the setting up of two new national funds to help local communities have more of a say in local plans and to ensure these plans are sustainable. In a new report, Localis argues that community engagement through better neighbourhood plans, the use of new design codes, and better digital channels of communication between councils and residents, will be vital to achieving national housing targets.
Council proposes using infrastructure levy receipts to service borrowing costs
Public Finance | 1 October 2021
Norfolk County Council is set to use community infrastructure levy income to finance debt repayments on new loans to help meet a £46m gap in its school building programme. The council has six major projects aimed at providing sufficient school places for residents, but currently four of these are unfunded, resulting in the sizable three-year financing gap. Norfolk uses around £2m per-year of community infrastructure levy income towards these projects, but the council has now agreed to look at using the money to service repayments on a much larger amount provided through borrowing.
Council set to approve Clean Air Zone despite reservations
LocalGov | 29 September 2021
Portsmouth City Council is set to discuss the start date of its Government-mandated Clean Air Zone (CAZ) despite its preference for other options to improve air quality. At next month’s cabinet meeting a recommendation will be made to councillors that the legal order for the Portsmouth CAZ is approved, meaning that charging of non-compliant vehicles will begin on 29 November 2021.
Report calls for new 'greenfield surcharge' on developments
LocalGov | 29 September 2021
A 'greenfield surcharge' should be introduced to help encourage brownfield development, according to a new report Brownfield first: Supporting levelling up. The proposal, published by the Environmental Industries Commission (EIC), argues the new charge should be added to the proposed infrastructure levy to help mitigate the higher development costs often associated with brownfield. The report shows that only 20% of new residential projects were on land that has already been developed in 2018, compared to 40% in 2014. 'Our analysis shows that developers are making significantly less use of brownfield, yet there is huge potential for it to deliver ambitions around levelling up,' said Matthew Farrow, director of policy at EIC. 'Not only can it help find the space for 300,000 homes a year, but it can also funnel new investment to those traditionally underfunded post-industrial towns, cities and communities.
Labour promises to scrap business rates
LocalGov | 27 September 2021
Labour has announced that it plans to scrap business rates to make the taxation system fairer and to help revive the high street after the pandemic.
Shadow chancellor Rachel Reeves announced yesterday at Labour’s conference that the party will cut – and eventually scrap – business rates if it is elected. In a press release, Labour said they would introduce ‘a new system of business taxation fit for the 21st century.’ However, the details of the reforms are yet to be confirmed.
Councils able to bid for £20,000 to support housing delivery
LocalGov | 21 September 2021
Local authorities are from today able to put a bid in to receive support from the Local Government Association (LGA) to help them tackle the housing shortage. The Housing Advisers Programme will award up to £20,000 to council projects that are designed to meet the housing needs of communities. The funding will enable councils to access expert advice.
Most workers do not expect full-time office return, survey says
BBC News | 16 September 2021
Most people do not believe workers will return to the office full-time after the coronavirus pandemic, an exclusive survey for the BBC suggests. A total of 70% of 1,684 people polled predicted that workers would "never return to offices at the same rate". The majority of workers said that they would prefer to work from home either full-time or at least some of the time. But managers raised concerns that creativity in the workplace would be affected.
Councils express concern about practicalities of implementing new fire safety legislation
Local Government Lawyer | 14 September 2021
The Local Government Association has said it welcomes the introduction of the Fire Safety Act and the Building Safety Bill and hopes they will be "an important step in the right direction", but has expressed concern about some of the practicalities of the implementation of new fire safety legislation for both resident safety and local authorities. In a briefing ahead of a House of Commons debate this month, the LGA said: “The current building safety crisis – which goes beyond problems with cladding systems - is the consequence of decades of regulatory failure under Governments of different political compositions. “The LGA has been calling for councils and fire services to be given effective powers and meaningful sanctions to ensure residents are safe – and feel safe – in their homes, including in social housing.” It said the Building Safety Bill, “while welcome”, needed to be expanded in scope in order to safeguard those, especially the vulnerable, in buildings under 18m. “This should be delivered on a risk basis.”
Councils warn half a million jobs at risk in urban centres
LocalGov | 10 September 2021
Half a million jobs could be lost in urban centres as a result of the pandemic, new analysis has revealed today.
A report by the Local Government Association (LGA) warns the manufacturing, finance, hospitality and retail sectors will be particularly affected by job losses. It found young people aged between 16 and 24 were two and a half times more likely than other age groups to be working in a sector that was shut down during the pandemic. The LGA is calling for a £7bn 10-year Sustainable Urban Futures Fund to help deliver infrastructure improvements, new housing projects, local town centres and other measures to support economic growth.
Governance & Reorganisation
Committee on Standards in Public Life to release final report on Standards Matter 2 review
In September 2020, the Committee on Standards in Public Life launched a wholesale review, ‘Standards Matter 2’, which was to examine the strengths and weaknesses of the system of upholding and regulating ethical behaviour in public life. The review has been described as ‘an ethical workshop for running repairs’ which it is hoped will contribute to current debate around the changes that are needed to the current system of regulating standards.
The review, which was Chaired by Lord Evans of Weardale, is due to publish its final report on Monday 1 November, however, the review published its outline findings in June of this year, highlighting four areas of standards regulation that require significant reform. These four areas are the Ministerial Code and the Independent Adviser on Ministerial Interests, the Business Appointment Rules and the Advisory Committee on Business Appointments, transparency around lobbying and the regulation of public appointments.
As part of its remit and to ensure an assessment that is relevant to the current landscape, the Committee confirmed that it would look closely at recent high profile matters and reports concerning upholding ethical standards, including the Boardman Review on Lobbying and the Treasury Committee’s Inquiry on lessons learned from Greensill Capital. Perhaps of most interest across the Local Authority standards landscape, however, will be the Committee’s assessment of the relevance of the Seven principles of Public Life and the Committee’s wider view on how effectively ethical standards are being upheld across public life. Whilst the interim findings state the view that it is ‘vital’ that the Nolan Principles continue to underpin the public service ethos of the Country, the final report’s findings are set to identify immediate issues with the current regime and signal the direction of necessary reforms.
Meanwhile, we still await the Government’s response to the Committee’s report on Local Government Ethical Standards published January 2019.
Legislation
The City of Liverpool (Scheme of Elections and Elections of Elected Mayor) Order 2021
This Order provides a new scheme for the holding of the ordinary elections of councillors of all wards in the City of Liverpool. The new scheme is for all councillors to be elected and retire together every four years, starting in 2023. In consequence, certain councillor elections due to take place in 2022 are postponed to 2023, and the date of the next election of the directly elected mayor for the City of Liverpool is moved from 2024 to 2023. Comes into force on 29th October 2021.
The London Borough of Havering (Electoral Changes) Order 2021
The Order provides for new borough wards and numbers of councillors for Havering at the borough elections in 2022.
The Medway (Electoral Changes) Order 2021
The Order provides for new borough wards and numbers of councillors for Medway Council at the borough elections in 2023.
The Local Government (Assistants for Political Groups) (Remuneration) (England) Order 2021
One of the requirements relating to the terms on which a person is appointed to, or holds, an appointment in pursuance of section 9 of the Local Government and Housing Act 1989 (assistants for political groups) is that the annual rate of remuneration for the post is less than £13,500 or such other amount as the Secretary of State may specify by order. This Order, which applies to relevant authorities in England only, provides for the annual rate of remuneration to be the maximum amount that is from time to time fixed by the National Joint
Council for Local Government Services as that applicable to spinal column point 38 on their salary scales for local government officers. The Local Government (Assistants for Political Groups) (Remuneration) (England) Order 2006 is revoked. Coming into force on 6 December 2021.
Publications & Guidance
Upholding Standards in Public Life - Report
Committee on Standards in Public Life | 11 October 2021
The Committee’s final report from its Standards Matter 2 review will be published on Monday 1 November.
The report looks at the institutions, processes and structures in place to support high standards of conduct in government and makes recommendations to the Prime Minister. The Committee launched this review in autumn 2020 and published its findings in June. The Committee will also be publishing new public polling and focus group research conducted as part of this review.
Spending Review 2021 Submission
Local Government Association | 5 October 2021
This Spending Review presents an opportunity to reset public spending in a way that is fit for the future, flexible to allow for the delivery of local priorities, and empowers councils to achieve the ambition for our communities that central and local government share. This submission is organised into six priority themes which set out how local government can act as the driver to our shared priorities, in addition to a series of departmental supplements with further suggestions on how local government can work with all parts of Whitehall to deliver policy. These proposals include a mix of revenue funding, capital funding, freedoms and flexibilities as well as policy reform to relieve pressures on local government (for example, services to children with special educational needs and responsibilities.
Progress on devolution in England
The Housing, Communities and Local Government Committee | 1 October 2021
We believe that in the remainder of this Parliament there should be further progress on devolution. Devolution must extend not only to combined authorities but to local government as a whole, and to rural as well as urban areas. The Government should work with local government and other stakeholders to produce a devolution framework. The framework should include a set of principles committing the Government to devolution as an evolving process with a forward direction. Devolution should be the default option unless there is a good and compelling reason why a policy area should not be devolved, and the Government should consider following the model for the devolved nations, where there is a list of reserved powers and all other powers are available for devolution. Councils should also devolve to their local communities.
Parliamentary boundary reviews: public consultations
House of Commons Library | 29 September 2021
Constituencies are reviewed periodically by independent Boundary Commissions, one for each part of the UK. This briefing outlines how the public can get involved in the consultation stages.
The general power of competence
House of Commons Library | 22 September 2021
The general power of competence denotes the power to do “anything that individuals generally may do”. It is available to local authorities and some other types of body in England, local authorities in Wales, and local authorities in Northern Ireland. This note provides an explanation of the general power of competence, the related ‘functional power of competence’, and the well-being power. It sets out some of the background to the introduction of the power, and notes some of the impacts of the use of the power.
Parish and town councils: recent issues
House of Commons Library | 22 September 2021
An overview of the structures and functions of parish and town councils, plus discussion of policy issues in the 2010s and early 2020s. This note addresses a range of recent issues affecting parish and town councils. It includes an explanation of what they are and their place in the local government structure; the powers they can exercise; how they may be established and abolished; and how complaints about them may be pursued. It also includes details of some policy issues that have arisen in relation to parish and town councils in the 2010s and 2020s. This note applies to England only.
Cabinet Office, Home Office, Ministry of Housing, Communities & Local Government | 15 September 2021
The Minister for the Constitution and Devolution, Chloe Smith, has announced that the 'first past the post' system will be used for elections of council, ‘metro’ mayors in England and Police and Crime Commissioners in England and Wales. This comes after voter confusion over the supplementary vote system. The government will be bringing forward amendments to the Elections Bill to deliver these changes. The changes will be implemented for the election of combined authority ‘metro’ mayors, the Greater London Authority mayor, elected council mayors, across England; and Police and Crime Commissioners across England & Wales.
News
County leaders urge ministers not to get 'bogged down' on mandatory mayors
LocalGov | 13 October 2021
County councils have urged the Government not to insist on introducing more mayors after a poll revealed that only one in three people believe they should spearhead devolution deals. A new survey commissioned by the County Councils Network (CCN) found 64% of people believe existing county council leaders offer the most suitable leadership for devolution, rather than introducing an elected mayor. It also found over three quarters of people polled (77%) said existing county council leaders should have equal or more powers than city mayors.
Chancellor has ‘little or no scope’ to increase local government funding
LocalGov | 12 October 2021
The Chancellor is going to struggle to find money for cash-strapped local authorities despite planning to implement the biggest tax rises in 25 years, think tank says. The Institute for Fiscal Studies (IFS) has reported that the Government’s planned £28bn package of tax rises – announced in the March 2021 Budget – will increase the UK’s tax take to its highest sustained level in peacetime. The IFS also reported that Chancellor Rishi Sunak is overseeing an historic increase in the size of the state. Spending will settle at 42% of national income, more than 2% above its pre-pandemic level and its highest level ‘in normal times’ since 1985.
Croydon to get directly elected mayor
LocalGov | 8 October 2021
Croydon Council will be run by a directly elected mayor after the vast majority of voters backed the move in a referendum. In the referendum, 47,165 voters said they wanted the council to adopt a directly elected mayor model, with only 11,519 voters backing the current leader and cabinet model. A non-statutory rapid review earlier this year uncovered 'significant failings in the leadership and management' at the council. It followed the council being forced to issue a second Section 114 notice, having failed to balance its budget. As a result, the Government was forced to provide the council with a £120m bailout in March.
Tory MPs make case for 'double devolution'
LocalGov | 4 October 2021
New agreements that ensure power is shared between councils and local communities would help really level up the country, a new report has argued today. Written by ten Conservative MPs and published by New Local, the report warns money alone will not be enough to solve the problems facing the country. It calls on Government to reform the public and private sectors to put power into the hands of communities Trusting the People: The case for community-powered conservatism calls for ‘double devolution’ underscored by Community Covenants that compel councils to share power with local people. Other recommendations include tax incentives for employee ownership and reform of the Companies Act to encourage businesses to put local communities and the environment at the centre of their decision-making.
Local services will face £8bn funding blackhole by 2024, councils warn
LocalGov | 1 October 2021
Council tax will have to rise by more than a quarter in the next three years to cover the shortfall in funding for local services, the Local Government Association (LGA) has warned today.
Analysis by the LGA reveals it will cost at least £8bn more to keep local services running at today’s levels by 2024. It warned this will put vital services such as homelessness prevention, road maintenance, recycling, and child protection at risk.
Auditors question financial sustainability of Welsh councils
LocalGov | 30 September 2021
Auditors have questioned the sustainability of local authorities in Wales despite the improved financial position Welsh councils have experienced as a result of pandemic support. The Welsh government allocated £660m additional funding to help councils cover their loss in income and their extra expenditure over 2020-21. Public borrowing also increased due to the pandemic. According to Audit Wales, this extra short-term funding means that councils’ financial positions have improved, the costs of Covid-19 have been mitigated, and councils have not generally relied on their reserves to balance their 2020-21 budgets. However, prior to the pandemic councils were facing a financial squeeze and the auditors warned that the 22 Welsh local authorities face uncertainty over future funding levels.
Many councils ‘not compliant’ with data protection law
LocalGov | 30 September 2021
Only 12% of UK councils are compliant with GDPR when it comes to Article 5 principles relating to processing of personal data, a freedom of information request has revealed. The Software Bureau, which powers Clean Contacts, sent out a FOI request to all UK councils in August asking how they kept their personal data up to date and accurate, particularly pertaining to home movers and people that have passed away. Out of the 207 local authorities that responded, 12% admitted that they do not keep their data up to date and do not have any processes in place to clean or delete data.
Statutory recommendation expected in the ‘next few weeks’
LocalGov | 27 September 2021
External auditors for Warrington Borough Council are considering issuing a rare statutory recommendation in coming weeks over the way the authority has accounted for its investment properties. Warrington’s 2017-18 accounts have not been signed off by auditors Grant Thornton, as the council has not included a “significant proportion” of commercial borrowing in its minimum revenue provision, the firm said in an update last week. Grant Thornton raised concerns in May 2020 around MRP, as the authority did not classify commercial investments as capital spending and did not factor them into its annual debt repayment calculations. Both parties have sought separate legal advice over the issue, which supported both of their stances, and Grant Thornton now expects to issue a legal recommendation under the Local Accountability and Audit Act 2014.
Nottingham warns against reserve use to balance budget
Public Finance | 24 September 2021
Nottingham City Council members have been warned that the use of reserves to balance its budget this year “is not recommended”, after a forecast £11m gap emerged. The council set a balanced budget for 2021-22 in March, which included £2.3m of reserves and almost £17m of savings, a report discussed at an executive meeting this week said. However, in its first quarter update published this week, the council forecast at £10.9m year-end gap, fuelled by an expected £5.2m rise in children care services and reduced income of £3.3m from the city’s workplace parking levy.
The report said: “Any actual overspend in 2021-22 will result in additional budget savings being required for 2022-23 and future years. “The use of reserves and one off funds to address any overspending of unachieved savings is not recommended as it is critical that the council is able to demonstrate longer term financial sustainability and deliver services within budget.”
Slough approves asset fire sale
LocalGov | 21 September 2021
Crisis-hit Slough Council has approved plans to sell around £600m worth of assets as it battles to get its finances under control. Senior councillors agreed the move last night after officers told them the authority had ‘untenable levels of borrowing and debt charges’ that risked the council having to spend more than 30% of its net revenue budget to finance these costs. A paper before the cabinet read: ‘This position is clearly unsustainable and, as a matter of urgency, borrowing needs to be reduced.
Council leader calls in government for governance support
Public Finance | 20 September 2021
Thanet District Council’s leader has requested central government support to improve governance at the authority, following disciplinary issues and legal disputes. Council leader Ash Ashbee wrote to the new local government secretary Michael Gove on Friday evening, requesting government assistance to “regularise governance” at the authority. However, the leader did so without involving council officers prior to sending the letter, according to a spokesperson for the authority.
North of England may get three more mayoralties in devolution agenda
Guardian | 12 September 2021
New mayoralties could be created in Cumbria, North Yorkshire and East Riding of Yorkshire, the communities secretary has said, as he announced a renewed commitment to “widen and deepen” the devolution agenda.
Speaking to the Financial Times, Robert Jenrick reaffirmed the government’s “full devolution” approach, outlined in the Conservatives’ 2019 manifesto, despite concerns Boris Johnson had soured on the idea after a high-profile spat with Andy Burnham, Labour Greater Manchester mayor, over coronavirus last year. Jenrick said there is “interest” in creating the three mayoralties, while in other more rural areas of the country county deals may be more appropriate. He told the FT: “We would like to encourage parts of the country that want to come forward to do devolution deals with us.
Derby City Council’s financial position ‘of concern’, as overspend emerges
Public Finance | 10 September 2021
Derby City Council’s finance chief has voiced concerns about the authority’s position, after a budget gap of more than £11m emerged this year.
UK government threatens return of borrowing caps
Public Finance | 9 September 2021
A government policy paper proposing limits on some UK local authorities’ borrowing has received a mixed reception from voices within the sector.
Governance and accountability: ICSs and LGR
Centre for Governance and Scrutiny | 8 September 2021
In this guest blog, Mark Sandford, a senior research analyst at the House of Commons Library, delves into the implications for local accountability through reorganisation and the Health and Care Bill.
Contract Management
Formation of a contract, incorporation of standard terms and conditions, onerous/unusual clauses and penalty clauses
Blu-Sky Solutions Ltd v Be Caring Ltd [2021] EWHC 2619 (Comm)
This case related to a dispute arising between Blu-Sky Solutions Ltd (claimant), a supplier of mobile phones and telecommunications services, and Be Caring Ltd (defendant), a social care provider, under a contract relating to the supply of a mobile network service by EE. The claimant signed an order form for the provision of 800 mobile phones for a minimum period of 48 months at a monthly rental of £9,600. This followed a series of emails and a meeting between the parties. The order form stated that the defendant accepted incorporation of the claimant’s standard terms and conditions, found on their website.
The defendant cancelled the contract before connection and the claimant sued for an ‘administration charge’ payable on cancellation under its standard terms and conditions.
From the case of Goodlife Foods Ltd v Hall Fire Protection Ltd [2018] EWCA, it is well understood that any condition forming part of a set of standard conditions which is particularly onerous or unusual will not be incorporated into a contract unless it has been fairly and reasonably brought to the recipient’s attention. The party signing intends to be bound by the terms and conditions, even if they have not read them, but in this case the terms themselves were contained in a separate document from that which was signed (i.e. they were on the claimant’s website, not in the order form). The judge in this case distinguished between contracts where the terms were not contained in the signed contract, as opposed to those where they were.
Whilst the defendant had sought to argue that there was no binding contract, the judge held that objectively a contract was concluded upon the signature and return of the order form, and the standard terms and conditions were incorporated. However, the judge found that the cancellation clause in question was onerous and it was ‘not fairly and reasonably brought to the defendant’s attention’ and on an objective analysis was ‘positively concealed’.
The judge also found that the relevant cancellation clause would allow the claimant to obtain compensation out of all proportion to its actual loss and it would be unconscionable to allow recovery of compensation in the circumstances. Further, he observed that even if provisions such as fees on termination are widespread in the relevant industry, this does not necessarily mean they are enforceable.
This case is a good example of the importance of drafting in standard terms and conditions. The judge considered that the claimant’s standard terms and conditions were poorly drafted, burying important clauses within other clauses, and not at all user-friendly. It also highlights the need to bring onerous clauses to the attention of a user or customer, particularly where the terms are located in a separate document or location to the document that is actually signed.
Publications & Guidance
CSPL Submission to Cabinet Office Consultation on Public Procurement
Committee on Standards in Public Life | 1 October 2021
The Committee made a submission to the Cabinet Office's public consultation on transforming public procurement. The Committee’s submission echoes the conclusions of its 2014 and 2018 reports on ethical standards for public service providers, and its 2020 report on artificial intelligence and public standards. The Committee set out the need for transparency in public procurement in these reports, presaging current criticism. This lack of transparency of Covid-19 procurement contracts has now been criticised in reports by the NAO and the Public Accounts Committee. The Committee would also like government to note its current review of the standards landscape, Standards Matter 2; the emerging findings of which strongly reinforce the need for the Nolan Principles to be thoroughly embedded in public life. The Committee hopes that this consultation can lead to the first steps in doing so.
Companies bidding for major government contracts face green rules
Cabinet Office | 30 September 2021
New measures which require businesses bidding for major government contracts to commit to achieving net zero emissions come into force today. The implementation of these rules will help deliver the manifesto promises made by the government to reach net zero carbon emissions by 2050. The requirements will apply to any companies bidding for government contracts worth more than £5m a year, not just those who are successful. The relevant procurement policy note, PPN 06/21, is available in full here. As of 30th September 2021, the Welsh Government has also published the equivalent WPPN 06/21.
Cabinet Office | 9 September 2021
Reminds In-scope Organisations of their obligations in applying exclusions and preventing, identifying and remedying conflicts of interest in public procurement. Update to Employment of Civil Servants section of the guidance document.
News
Water park dispute results in legal action from Council
Local Government Lawyer | 7 October 2021
Scarborough Borough Council (“SBC”) claims it is owed £800,000 by the developer (Benchmark) of a local water park in unpaid rent which arose during the Covid-19 pandemic, under an alleged long-term arrangement to ensure the costs of the park are repaid. SBC says it retains the freehold interest in the site against any chance of default. SBC is now pursuing Benchmark’s parent company and guarantor (Abbey) under the lease for payment of the rent. The claim is contested, with Benchmark and Abbey claiming that SBC had assured them all rent during Covid would be deferred to future years of the lease.
Local Government Lawyer | 7 October 2021
As part of a judicial review brought by the Good Law Project (“GLP”) against the Secretary of State for Health and Social Care (now Sajid Javid) to challenge contract awards to Abingdon Health as an unlawful public subsidy, Mr Justice Fraser has ordered a search of former Health and Social Care Secretary Matt Hancock’s personal emails and social media apps. The GLP has argued that there were breaches of procurement law, public law and state aid principles when Abingdon was commissioned to provide rapid Covid-19 antibody tests.
Whilst disclosure is not routinely ordered in judicial reviews, Fraser J said Mr Hancock had been centrally involved in the awarding of the three contracts in question and a search of his email accounts was “more likely to yield documents not otherwise currently available as a result of the disclosure exercise thus far undertaken by the Secretary of State.” The judge also refused the Secretary of State’s request to call an expert economist on state aid.
Judge lambasts government lawyers who ignored court rules
Law Society Gazette | 1 October 2021
The Department of Health and Social Care has been publicly censured by the courts for repeatedly failing to comply with civil procedure rules on disclosure protocol in a case brought by a campaign group. In Good Law Project Ltd, R v Secretary of State for Health and Social Care [2021] EWHC 2595 (TCC) The Honourable My Justice Fraser said that the court had ‘little sympathy’ with any litigant who simply ignored the rules, as the defendant had done. He dismissed an application to admit expert evidence in the government’s defence over contract procurement after refusing to allow what was their third attempt to comply with court rules.
Homes England 'revolutionises' procurement process with launch of new land disposal approach
Local Government Lawyer | 10 September 2021
Homes England has launched what it has called a "first of its kind" Delivery Partner Dynamic Purchasing System, which allows house builders to apply to join the agency's list of preferred developers on an ongoing basis, rather than having to wait until the list renews once every four years. House builders are encouraged to apply as and when they see sites of interest on Homes England's Land Hub, the agency's interactive tool used to advertise sites it is bringing to market. Local authorities and housing associations can also rely on the DPS as a procurement-compliant solution for finding house builders, making it easier for them to build homes on the land they own, Homes England said.
Disputes & Regulatory Support
Economic operator challenges public authority mid-procurement: CMAC Group UK Ltd v Abellio East Midlands Ltd [2021] EWHC 2822 (TCC)
Abellio had invited tenders for three contracts for rail replacement bus and taxi services. In each case the tender documents stated that the Utilities Contracts Regulations 2016 (‘UCR’) did not apply to the procurement. CMAC considered that the UCR did apply and that Abellio was therefore carrying out the procurements unlawfully. It protectively issued proceedings prior to submitting tenders, as it considered that time started to run for the thirty day limitation period from the date the tender documents were published (given that it had become aware of the alleged breach at this stage).
CMAC subsequently applied for a stay to proceedings pending the outcome of the procurement as it was not known at that stage which bidder would be successful, and therefore whether CMAC had suffered any loss as a result of the alleged breach.
Abellio considered that a stay was inappropriate because:
- Public procurement proceedings should be determined rapidly;
- There was no place for protective claims;
- If there was some anticipatory breach it had to be properly particularised; and
- If there was an actual breach, a separate cause of action would accrue at a later point.
The Court disagreed and granted CMAC’s application. It was considered at least arguable that the cause of action accrued upon issuance of the invitations to tender. It was therefore appropriate for CMAC to issue proceedings and apply for a stay to see if the potential loss would crystallise.
This case may give more bidders confidence to issue claims mid-procurement and subsequently apply to stay the proceedings until the contract award decision is made. Such claims might raise particular challenges for authorities who are then in a situation of managing an evaluation process with the knowledge that the proceedings will be resurrected if the claimant does not win.
Publications & Guidance
Administrative Court judicial review guide
HM Courts & Tribunals Service | 30 September 2021
Detailed legal guidance on bringing a judicial review case in the Administrative Court. The 2021 edition reflects legislative and practice changes relevant to the Administrative Court over the last year.
News
High Court raps councils over failure to progress injunctions against travellers
Local Government Lawyer | 6 October 2021
Four councils have been found by the High Court to have engaged in an abuse of process relating to injunctions against travellers and a fifth has been severely criticised in cases where they showed “complacency, even insouciance”. Mr Justice Nicklin said the London Borough of Havering, Nuneaton & Bedworth Borough Council, Warwickshire County Council and Thurrock Council had abused the court’s processes by failing to progress interim injunctions granted against ‘persons unknown’ and Rochdale Metropolitan Borough Council had also been dilatory in pursuit of a final injunction. The judge was asked to decide whether interim injunctions granted to the five councils should be discharged on the grounds that their failures to progress the claims to a final hearing were an abuse of process. He rejected the argument that the pandemic had prevented councils from pursuing the cases, noting: “The High Court has continued to function during the pandemic, quickly moving to remote hearings. There has been no ‘cessation' of hearings in the High Court.”
Judge lambasts government lawyers who ignored court rules
Law Society Gazette | 1 October 2021
The Department of Health and Social Care has been publicly censured by the courts for repeatedly failing to comply with civil procedure rules on disclosure protocol in a case brought by a campaign group. In Good Law Project Ltd, R v Secretary of State for Health and Social Care [2021] EWHC 2595 (TCC) The Honourable My Justice Fraser said that the court had ‘little sympathy’ with any litigant who simply ignored the rules, as the defendant had done. He dismissed an application to admit expert evidence in the government’s defence over contract procurement after refusing to allow what was their third attempt to comply with court rules.
Council’s charging policy held unlawful as it discriminated against severely disabled persons
Local Government Lawyer | 30 September 2021
Hannah Gibbs of Landmark Chambers looks at the impact of a recent High Court decision on local authority charging policies. This case concerned a 24-year-old woman with Down’s Syndrome, who relied completely on the welfare and benefit system as she could not earn due to her physical disabilities. She was severely disabled, and thus entitled to a higher amount of benefits compared to people who were disabled but not severely disabled. Although the Council’s Charging Policy applied to all disabled persons, the basis on which it charged the severely disabled in respect of their care needs was held unlawful as it discriminated against them compared to everyone else receiving Council services covered by the Charging Policy.
Local Government Lawyer | 27 September 2021
The Court of Appeal has dismissed an appeal by an independent fostering agency over whether it is lawful for it only to accept heterosexual evangelical Christians as potential carers. Cornerstone (North East) Adoption and Fostering Services ("Cornerstone") recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted. Ofsted considered that it was unlawful for Cornerstone only to accept heterosexual evangelical Christians as potential carers. In a report issued in draft on 12 June 2019, it assessed the effectiveness of Cornerstone's leaders and managers as 'Inadequate'. This was in large measure because Ofsted considered that, by only recruiting foster carers who were practising Christian carers in opposite sex marriages, Cornerstone's recruitment and selection process for foster carers did not comply with the requirements of the Equality Act 2010 and the Human Rights Act 1998. On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages. On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages. In a judgment dated 7 July 2020, reported as R (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd v Office for Standards in Education, Children's Services and Skills [2020] EWHC 1679 (Admin), Mr Justice Julian Knowles dismissed Cornerstone's claim and he ordered it to pay 75% of Ofsted's costs.
Cycle lane court challenge takes new turn
LocalGov | 24 September 2021
Cycling UK has won the right to challenge a council’s decision to remove a popular cycle lane after a High Court ruling refusing permission for a judicial review was overturned. The charity has said that during its brief existence, the cycle lane on the A270 Upper Shoreham Road was used for more than 30,000 cycle trips, many servicing the five schools along its length. The cycle lane also featured in a government publicity video highlighting the community benefits of the new cycle lanes introduced during lockdown in 2020. Cycling UK applied for a judicial review of West Sussex County Council's decision in February and after an initial refusal in the High Court in May, it appealed to the Court of Appeal. With the earlier decision overturned the judicial review can now be heard.
Local Government Lawyer | 23 September 2021
A Deputy High Court judge has granted Ashford Borough Council a final anti-harassment injunction against a large-scale landlord who engaged in a campaign of “repetitive, frequent, oppressive and offensive correspondence”. The claim in Ashford Borough Council v Wilson [2021] EWHC 2542 (QB) was brought by the local authority and its chief executive on their own behalf and on behalf of the current and former officers, employees, councillors and agents of the council. The defendant, Fergus Wilson, denied that he had harassed the claimant as a matter of law or in fact. His case was that whilst some of his correspondence and communications might be characterised as offensive or even "abhorrent", his behaviour had not crossed the threshold required for it to be characterised as harassment within the terms of the Protection From Harassment Act 1997.
Council loses appeal over £125k personal injury award amid claims of fundamental dishonesty
Local Government Lawyer | 21 September 2021
A council has failed in an appeal over a judge’s decision that a personal injury claimant had not been fundamentally dishonest in relation to his claim. On 8 October 2020 His Honour Judge Murdoch had determined that Westminster City Council should pay the claimant £125,321.33 in damages for personal injury, and costs on an indemnity basis following the local authority’s rejection of the claimant's Part 36 offer. The central issue in Elgamal v Westminster City Council [2021] EWHC 2510 (QB) concerned HHJ Murdoch’s decision that the claimant had not been fundamentally dishonest, and that accordingly the provisions of s 57 of the Criminal Justice and Courts Act 2015 were inapplicable. On behalf of Westminster, it was contended that the judge had found the claimant to have been dishonest, and that he should also have determined that he was "fundamentally" dishonest. On behalf of the claimant, it was initially accepted that the judge had found the claimant to have been dishonest, but in the end submitted that there was no such finding, and that the High Court should not find dishonesty when the judge had declined to do so. It was also submitted that any dishonesty, even if established, was not sufficiently fundamental so as to bring the provisions of s 57 into play.
Richards, R (On the Application Of) v The Environment Agency [2021] EWHC 2501 (Admin) (16 September 2021)
The high court has ruled the Environment Agency must do more to protect a five-year-old boy from landfill fumes that doctors say are shortening his life expectancy. In R (On the Application of) v The Environment Agency [2021] EWHC 2501 (Admin) a high court judge said he was not satisfied that the EA was complying with its legal duty to protect the life of Mathew Richards, whose respiratory health problems are being worsened by fumes from a landfill site near his home in Silverdale, near Newcastle-under-Lyme.
Local Government Lawyer | 15 September 2021
Lawyers for Liberty has warned local authorities and schools to urgently take independent legal advice on the potential legal implications of the vaccine programme for 12-15 year olds. The campaign group, which also served a claim this month on the Secretary of State for Health and Social Care and the Joint Committee on Vaccination and Immunisation (JCVI) over the approval of Covid-19 MRNA injections for children, warned the vaccination of healthy 12 to 15-year-olds at school could also put head teachers at risk of legal action.
Care home workers seek legal action against government's 'unlawful' mandatory Covid jab
Carehome.co.uk | 14 September 2021
Care home staff have launched legal action against the government and Health Secretary Sajid Javid for introducing a mandatory Covid jab requirement for care workers, which they call an “unlawful and unnecessary restriction”. Under regulations set out by an amendment to ‘The Health and Social Care Act 2008’, the public will be prevented from entering a care home after 11 November 2021, unless they have received two doses of the Janssen, Pfizer/BioNTech, Moderna, or AstraZeneca vaccines. As a result two care home staff are seeking a Judicial Review into the government’s incoming jab rule and a quashing order to render mandatory vaccination rules null and void. They also want a declaration from Sajid Javid that he has violated articles 8 and 14 of the European Convention on Human Rights (ECHR) and that the regulations are unlawful.
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On Demand Webcasts
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Autumn Public Procurement Bootcamp
3-17 November 2021
A series of procurement three webinars.
By signing up to The Bootcamp, we will send you the link to that week’s Bootcamp event every week for three weeks. If you miss the 11am video, you'll still be able to view each day of Bootcamp 'On Demand' at a suitable time for you.
